Asheville restaurant workers unite for labor rights

ASHEVILLE – Alia Todd, a restaurant worker and mother of two, scheduled both pregnancies to come to term in the winter, the slow season for restaurants.

She worked as a pastry chef at Cucina 24 up until a week before she gave birth. At Tupelo Honey, where she still works, Todd pumped milk in an office between waiting tables.

The restaurant industry sometimes asks its employees to be professional jugglers. Now some restaurant workers are finding out it also pays to have a grasp of labor law.

"There are tons of restaurants out there that are compliant with laws and pay their people correctly," Todd said. "But what there is between all of that is a lot of Wild West, anything-goes behavior."

Todd and her Tupelo Honey colleague Jessi Steelman get paid sick leave. Todd resumed her full schedule after maternity leave. "They go by the guidelines and listen to and care about their employees," Steelman said of the quickly growing restaurant.

But talks with workers from other restaurants revealed a different story. Todd thinks the warm and fuzzy vision of Asheville as Foodtopia can sometimes be at odds with what's going on behind closed kitchen doors.

"I feel as if there's a wall between all the people enjoying everything and what's going on with the worker, and that needs to be talked about a little more," Todd said.

Last year, on the eve of Mother's Day, Todd expressed her intention not to sit idle.

"This issue is not going away," she said. "It's important for North Carolina families. And if you've ever been out to eat before, these issues should matter."

That month, Todd and Steelman convened a group of restaurant workers to form the Asheville Sustainable Restaurant Workforce. The aim of the group is to start a conversation with employers about issues restaurant workers face.

"We believe that when workers start to stand up and value themselves and their work and their contribution to successful business, those things will start to change," Todd said. "It starts when workers stand up and say, 'We'd like to be accounted for, we'd like you to follow the law and we'd like to know what's going on when it comes to our work.'"

Starting the conversation

The Sustainable Restaurant Workforce's chief goal is not necessarily a revolution. It's not even to start a union, even though unionized restaurant workers are less likely to suffer poverty.

But union efforts run counter to the air of collaboration that Todd and Steelman are trying to cultivate.

"Unions' structure has a long history of doing things in a particular way, formulating what you want, taking it to the business and negotiating from there," Todd said. "That's counter to the triangular effort that we've set up."

That triangular effort means education in three segments of what makes a dining community: the workers, the employees and the diners.

"The triangle is what makes a successful restaurant work," Todd said. "All working together to make sure that we have a nice, vibrant restaurant industry."

The group is instead calling for restaurants to uphold their end of the bargain, complying with federal and state laws regarding wages and workplace rights.

The first step to make sure restaurant workers know their rights. The community conversation comes later.

"This group is about building a community together to bring awareness to diners, workers and employers," she emphasized.

Diner awareness would go a long way to helping with some pay issues, Steelman said. A lot of diners don't realize North Carolina servers get a base-rate pay of $2.13 per hour.

"It's not about bad service, but about diners not knowing, because they've never gone down that road and they don't realize the struggles, or that most workers live at or below the poverty line," she said.

Taking care of restaurant staff, Todd and Steelman believe, is another facet of ethical eating, just like fair-trade coffee, organic vegetables, heritage pigs and free-range chickens.

"We can change this together as a community," Todd said.

Growth in industry, but not wages

The Sustainable Restaurant Workforce's formation comes after a decade of growth in the local restaurant industry.

In Buncombe County, full-service restaurants like Tupelo Honey have seen an employment increase of about 33 percent over the past decade, compared to a 12 percent cross-industry increase for the same period.

One in seven jobs in Buncombe County is supported by the tourism industry, with an estimated 25 percent of those jobs in the food-and-beverage sector.

That's significant growth in a sector with little paid vacation, sick leave, and nearly nonexistent paid maternity leave. According to a report by the Economy Policy Institute, more than 43 percent of restaurant workers don't make enough to make ends meet without assistance.

In North Carolina, 27 percent of tipped workers live at or below the poverty line, making $2.13 per hour and relying on tips for income. "I would say the majority of restaurants in Asheville pay that wage," Todd said.

But not all of servers are having a hard time making ends meet, Todd cautioned.

"There's a lot of Asheville servers that do very well — I do very well," she said.

Still, it's worth noting that, on a national level, one in six restaurant workers, or 17 percent, live below the official poverty line. The poverty rate for workers outside the restaurant industry is more than 10 percentage points lower — even though restaurant industry sales on a typical day in 2014 approached $1.9 billion.

Many of those struggling the most likely work in kitchen positions.

According to Vicki Meath, executive director of Just Economics, which promotes voluntary certification of living wage businesses, "anecdotal evidence" suggests back-of-the-house workers are often making the lowest wages in restaurants.

According to Todd, the average kitchen worker in Asheville makes $10.40.

"That's averaged with chefs' salaries," said Meath. Dishwashers, for example, often make much less, she said.

A wage-theft epidemic

Servers and kitchen staff alike are affected by a lack of policies common in other industries, such as regular schedules or standardized systems for paying workers.

Wage theft, which occurs when an employer underpays or fails to pay wages to workers, runs rampant in the restaurant industry.

"Wage theft is occurring everywhere," Meath said. "And sometimes it's unintentional."

Many restaurant owners have come up through the industry, and some industry standards do not necessarily follow the point of law, she said. "And the restaurant owners just don't know."

Eighty-four percent of restaurant workers have experienced wage theft, said Todd, citing a U.S. Labor Department study that looked at data from 2011-12.

Clermont Ripley, staff attorney for the North Carolina Justice Center, says she can't confirm whether that statistic holds true today. "But anecdotally, I know that it is an industry with really high wage theft," she said.

The prevalence of wage theft occurrence in North Carolina restaurants is second only to the retail industry, according to a 2012 report by the Justice Center.

In 2012, the Wage and Hour Bureau investigated 3,819 employers across all industries and found 2,746 workers were due more than $3.6 million in wages, the report said. From 2007-11, the bureau found more than $13 million had been stolen from North Carolina employees.

Wage theft takes lots of forms, Ripley said.

For example, even though the federal minimum wage for tipped employees is $2.13, employers are expected to make up the difference if a worker makes less than $7.25 per hour after tips. "And we hear a lot from workers who are only getting their tips," Ripley said.

Wage theft also occurs when kitchen staff are paid a flat weekly wage that doesn't add up to minimum wage. It also happens when restaurant workers work more than 40 hours without receiving overtime pay, or when restaurants insist employees clock out for "side work," such as cleaning or rolling silverware.

That's a common occurrence in restaurants, and it comes with other hidden costs to the employees, Steelman said.

"It's a liability," she said. "If people hurt themselves after clocking out, that's on the employee."

Restaurants are the new community

Creating mutual respect, guided by a full understanding of workers' rights, is one of the chief goals of the new restaurant workforce group, which is why Todd and Steelman have created a workers' rights sheet, a list exploring laws specifically guarding restaurant workers. The group hopes local restaurants will adopt the list into a standardized employee handbook.

"The ultimate goal of building relationships with restaurant owners is to help them do the right thing, and solicit others to do the right thing, too," Todd said.

According to Eric Scheffer, who owns Vinnie's Italian restaurant on Merrimon Avenue, he already has an employee handbook that details workers rights, among other things.

"I am for workers understanding their rights," he said. "Too often in this community, unfortunately, workers have been abused."

An educated workforce as well as employer benefits everyone, he said.

Not every restaurant can afford to pay $15 an hour to employees, he said, but hopefully every restaurant can afford to treat workers right.

"There's got to be a balance," he said. "And I believe that educating everybody leads to the proper treatment of everybody — we both have a vested interest together and, if you're treating everyone fairly, you're creating an environment where people can prosper, make a living, and there's a sense that we're all in this together."

That's especially important in Asheville, where restaurants are becoming the new community common ground.

"Food is such a wonderful thing," said Todd. "As a whole, if I could paint a broad stroke, people attend church less, people participate in civic organizations less than they did in the 50s. And so, congruent with that, they also go out to eat more."

Todd thinks that, when business owners prove to the community that they care, everyone wins.

"I mean, we're all diners," she said. "Workers are diners, too. It behooves all of us to have a conversation about what's going on behind the kitchen doors."

Restaurant industry by the numbers

$709.2 billion: Total sales.

1 million: Restaurant locations in the U.S.

4 percent: Restaurant industry sales share of the U.S. gross domestic product.

14 million: Restaurant industry employees.

1.7 million: New restaurant jobs created by the year 2025.

10 percent: Workforce as part of the overall U.S. workforce.

90 percent: Restaurant managers who started at entry level.

80 percent: Restaurant owners who started their industry careers in entry-level positions.

90 percent: Restaurants with fewer than 50 employees.

70 percent: Restaurants that are single-unit operations.

Source: National Restaurant Association

Worker rights from the Asheville Sustainable Restaurant Workforce

•Discussing rates of pay or conditions with other workers, even in a critical way, is considered "concerted activity" under federal law, and workers can't be penalized or reprimanded for doing so.

•You cannot do any work/side work off the clock. It is a liability and if you get hurt off the clock at your workplace, your employer is not held liable.

•You are not required to tip out more than 15 percent of your tips to any group of tipped out employees on a single shift.

•Employers must count overtime by the week, not any other period of time. So if, for example, in a two-week pay period a worker works 50 hours one week and 15 hours the next, they're owed 10 hours of overtime pay for the first week. Additionally, while the usual minimum hourly wage for tipped employees is $2.13 an hour, overtime pay for tipped employees is a minimum of $5.76 an hour.

•If 20 percent of your time at work is spent doing "non-tipped work," such as, deep cleaning the restaurant, rolling silverware, doing side work, etc. then your employer must pay you $7.25 an hour for that "non-tipped" work.

•When your employer has a dress code that includes purchasing a piece of clothing from your company that has the restaurant's logo on it; they can't legally charge you for it. Charging you for a uniform cannot take your pay below federal minimum wage. If there is a dress code that you have to purchase things on your own (black pants, polo shirts, aprons, etc), that is legal.

•Tipped employees do not have to share tips with co-workers who don't engage in direct customer service, such as, back of the house employees and cleaning services.

•If you work at a restaurant where they tip share, you legally get to keep 85 percent of your tips. (Please note: tip pooling and tip sharing are different)

•Do not fill out a 1099 form for your restaurant employer. Someone who is paid on a 1099 is not an employee, but an independent contractor. No FOH or BOH position in any restaurant can be an independent contractor.

•Federal law prohibits sexual harassment in the workplace, including in the food service industry.