All's Not Fair in Food & Beverage

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All’s Not Fair in Food & Beverage

The Basics

Everybody needs food.  Everyone needs water.   Most everyone needs a job or at least access to enough money to provide food and water for themselves (and oftentimes, their family).  For those of us who love food and or mixology, conveniently, in the America, there exists a behemoth industry, the food and beverage industry, which allows many of us to work and make a living doing what we love as foodies or mixologists, while simultaneously providing for our basic needs.  There’s a good chance you’ve ended up working in the food service industry for at least a few years of your life.  According to the 2011 National Restaurant Association’s Pocket Factbook, (yes, I'm aware this data is outdated!) “nearly 5 percent of all adults have worked in the restaurant industry at least once in their life.”   It all sounds theoretically romantic and ideal; finding gainful employment which allows you to live your passions at work.  Unfortunately, this is often not the story; as the industry’s exponential expansion seem infinite and reaps billions more in profits, neither the benefits of growth nor the profit dollars are trickling down to its most valuable assets, their employees.

For 20+ years, I’ve worked in the food and beverage industry in many different capacities; a dishwasher, busser, waiter, bartender, and manager.  From rowdy pub to fine dining environments; and from biker gangs to all of the President’s men, I’ve served everyone in between.  Knowing how to serve food and make cocktails for people has been both my career and my livelihood, and sometimes both.  Whether cooking or serving, the skillset is fairly universal across all 50 states.  About 10 years ago, I moved 3500 miles from Maine to California; and following suit with my hopeful anticipation of it, my food industry skills were pretty much directly transferrable cross-country.  At one point in time, I attended a university but my credits are now “expired” and non-transferrable to my resume because I did not graduate.  Oppositely, I found that the service industry skills I possess have proven to have no expiration.  For many years I have thought of myself as lucky, or fortunate to have acquired these skills at a young age.  Now, I’m not so sure about that.  

According to many economists, journalists, or business analysts, most restaurant work is considered to be unskilled labor.  However, I think it might be safe to say that anyone who has ever donned an apron or memorized the order of a table of six people; might beg to differ.    A recent article from NPR claims there is a profusion of unfilled jobs within the industry “implies that many potential workers are finding other jobs or looking at these postings and saying, "Meh, maybe I can do better."    

This statement is problematic on a few fronts.  Firstly, if indeed F&B industry jobs truly qualify as unskilled labor, there is no opportunity for “doing better” somewhere else.  If this jobseeker did find another job, chances are that job did not pay a penny above the mandatory minimum wage for tipped wage workers because competitive salaries are non-existent in the tip-based wage world.  It’s more likely that the job that person found (accepted) was at an establishment with a more reputable history of treating their employees fairly in terms of the other minimum wage variables of their occupation which include fair scheduling,  better tipping clientele, great management, and a consistent product, than the job they had said “meh” to (rejected).    

Gluttony and Greed

For many of those who have never worked in The Industry­­­­­­­­, Tipping might as well enough be a city in China, and requesting that a single food bill to be split into 13 individual checks might seem reasonable.  Likewise, an outsider’s understanding of this business is limited to its visible façade; the controlled environment of each dining experience.  Beyond the façade lies the rich culture (as Anthony Bourdain calls the “culinary underbelly”) of the industry includes not only FOH (front of house), but also BOH (Back of house) and managerial staff.   This culture even has its own language; a patois heavily influenced by Spanish, English, and French culinary terminology.   Anyone employed by the F&B industry is aware of all of the intricacies and idiosyncrasies of the business, and also the greatness.  What should be fairly obvious by now; even to the most undiscerning observer, the enormity of this industry, and how its seemingly limitless exponential growth has not benefited its workers in any way other than giving them multiple jobs to work at.  The economy of the industry ten years ago is dwarfed by the economy of the industry today.  According to the National Restaurant Association, the industry’s annual sales top $660 billion and employs 13.1 million people.    The Food Channel is now the Food Network, every celebrity chef has his or her own show, wannabe chefs compete on Reality shows like Top Chef to earn their place amongst the stars.  Restaurants have mobilized; they’re now food trucks; there are reality shows whose premise is to “rescue” bars and restaurants, the list goes on and on.  It’s big money, and EVERYONE wants a piece of this pie.  The prospect of realizing limitless profit in this industry is the fat, juicy rabbit that dangles, just a whiff ahead of the dogs on the restaurant track.  Entrepreneurs from any and all other occupations or industries believe that they too can strike it rich in this foodie gold rush.  Professionals like myself, who have decades of experience in this industry, are scooped up and placed into management positions; puppeteered buy these restrauntpreneurs to do their magic dance, make delicious food, satiate the insatiable gullets of Yelpers, and make them money... table by table, fork to fat, gluttonous face.  Restaurants have become purely profit-seeking ventures and this bastardization has created a class of modern day servants whose workers’ rights are nil to none.

Free Meals

There are no holds barred in the rewards given to providers of food; even the “Stars” are given to the most revered chefs in the business.  We give the stars to a few… yet, offer nothing to so many others.  As of 2010, 14.5 percent of our population is what we call “Food insecure.”  I think it’s safe to assume, that I might have been part of this statistic, had it not been for the discounts and “free meals” I’ve received by working at a restaurants throughout my adult life.    

Mind your Manners!

The reasonable man adapts himself to the world. The unreasonable man persists in trying to adapt the world to himself. Therefore, all progress depends on the unreasonable man.		”
—George Bernard Shaw

My father once told me that my grandparents sent my Aunt to attend Finishing (Etiquette) school.  It’s likely this was a costly investment; but like any good investment they calculated the benefits of being a graduate outweighed the cost of admission.  For those of you who are unfamiliar with this type of institution, I’ll kindly offer my own synopsis to spare you a change of apps to Google:  Etiquette school serves the purpose of teaching the student how to demonstrate their social status and securing the perimeter of the social boundaries which elevate and divide them from the classes below.  What separates each of us from being part of the “classless” masses?  Within the environment of the modern restaurant, the prevailing dividing line is still etiquette.

When you’re in the service industry, don’t expect to be treated as an equal to your customer… no matter what.   The customer is always right, and if their food is cold or overcooked, or not tasting "good enough" or up to the par of the eater, the server usually pays the price; not receiving a tip.  Managers can come in and comp meals or drinks, or give the customer free dessert, which satiates an irritated customer.  However, the blame is still being wrongly placed on the server, and not the restaurant itself.  Scapegoating culpability is common practice in the food service world. 

The Catch 21

Having spent the last 21 years of my life hearing diners complain about cold, tasteless, or wrongly cooked food, not making drinks “strong enough” for their liking, and cleaning up their misbehaved children’s filthy table messes (including any and all type of bodily fluids), you’d think I would have had enough, and would just quit; throw in the proverbial napkin, bar rag, or whatever you’d like to call it.  You’d probably also think that after studying cultural anthropology in college and learning such concepts as acculturation would have helped me succeed in this career.   But I can’t just quit, and simply knowing the reason you’re being treated like a second class citizen (servant) doesn’t lessen the sting of the reality.  The restaurant industry is booming, there are a plethora of them opening (and closing) all of the time, and as my last boss liked to constantly remind us of our lowly, minion-ish place in the food chain: “there are a hundred other people who want your job; you’re easily replaceable.” 

Why have I remained in this occupation for so long barring the humiliation of being relegated to the position of pion?  Maybe it’s because I’m a bit masochistic.  Unfortunately, being skilled in this trade has been my only surefire job prospect in this “recession economy”.  It has also been my only “reliable” source of income; how I bring home the bacon to put a roof over my head, feed myself, my boyfriend, and my animals.  Sure, I’ve held and found a modicum of success in performing administrative, office-based jobs which have offered a steady paycheck.  However, none of these positions offered any chance of advancement, and pretty much guaranteed that once I had reached the maximum skill level and pay grade, I’d be replaced by a cheaper to employ, younger person.  Bartending simply proved to be a more lucrative venture, so it became the most viable option to get the bills paid. 

Patrons and Their Philanthropic Gifts

No one enjoys being treated unfairly, but those of us who have ever worked a service industry job understand it pretty much goes with the territory.  It’s practically a given that you’ll be overworked and underpaid because you have two or more jobs, are working in excess of 40 hours per week total, never seeing a dime of overtime, and trying to cram in laundry and a “social life” (one day of binge drinking) in between.  We, a society of restaurant goers, have an entitlement problem.  We want don’t want to pay for both the food and services we’re receiving when we dine at a restaurant.  Instead, we expect our servers to actually work for their money; but it’s not working. In reality, it’s essentially up to the patron’s discretion to give (or not to give) a philanthropic gift (gratuity).  The diner holds absolute power to determine if their server deserves their next meal, so long as they served them theirs “correctly.”  If, like in Europe, gratuity was not part of the culture, would prices inflate?  And if so, would customers be willing to fork over the full cost?

The tipping system turns service workers into profit eunuchs.  They are beholden to their employers, but the employers are not even technically paying the bulk of the employees’ wages.  While employers reap greater profit from the hard work of the employee raising bills through “good service” practice, the employer is not held accountable to share.  The service worker employee is essentially an indentured servant to the employer.  The recession economy created the need for cheap labor; the restaurant industry supplied that demand and gave way to its rise as an economic powerhouse.  How many bartenders and servers have you chatted with over dinner that have college educations; and are seemingly “overqualified” for their position?

 In the Shadow of Cesar (Chavez)

“Who gets the risks? The risks are given to the consumer, the unsuspecting consumer and the poor work force. And who gets the benefits? The benefits are only for the corporations, for the money makers.”

Cesar Chavez

It’s only a few “Top Chefs” who receive all of the accolades of success.  However, that meal you just ate at Chili’s was probably prepared by at least 5 other people; prep cooks, line cooks, who are getting paid a wage just barely above minimum wage.  These people are probably forced to work two full time jobs to maintain a living.  They’ll never see a dime of overtime or any other benefits afforded to workers in any other industry.

That being said, recently, my “full time” bartending job offered me a grand total of approximately eight hours of work for one week.  At $8.00 per hour plus tips which amounts to about $160.00 before taxes.  Most often, I feel I’m “lucky” to live in California where the minimum wage for tipped service industry workers is actual minimum wage.  In states including Maine and Louisiana, the minimum required wage is a fraction of minimum wage, rounding out to about $2.13 per hour.  No restaurant worker is ever guaranteed a certain number of shifts per week; unless you’re a manager, but we’ll get to that later.  The practiced industry theory is usually: you work hard, display your competency at your job; you get more shifts, and the more money you make.  Likewise, if you do just the opposite: don’t work hard and display incompetency, you lose your shifts and the less money you make.  Therefore, after seeing the number of hours (or lack thereof) on my schedule, I requested a meeting with the Manager to learn of the reason(s) for what I perceived as a disciplinary action. 

As most service industry employees and employers know, the IRS defines (and therefore taxes) tips as wages.  However, California Labor Law has a different definition, and does not consider tips to be wages.  Under California Labor Law (Section 203), if an employee files a wage claim against their employer for un-received wages, the employer can be liable for a waiting time penalty until that employee is paid those wages.  A tip not being considered a wage under labor law, adversely affects tipped employees as it diminishes their employee rights and protection.  It is conversely advantageous for employers since it allows them to escape accountability.  A tip is essentially an earned income based on performance (much like a commission), yet it is not considered as such.  For example: If an employee claims she did not receive her earned tips (like would occur in an illegal tip pooling system), she may file a wage claim with the Department of Labor Standards to recover those tips.  Even if a judgment is made which determines the employer to be liable to pay the employee those un-received tips, the employer is not liable for paying the waiting time penalty for those tips, as they are not considered wages.    

      

The Roof Is On Fire

Due to the strange and warped pay structure created by the philanthropic gift element, there is usually little or no monetary incentive in seeking a managerial position in the industry.  The term glass ceiling is applicable to many industries, but in this one, there is no ceiling; the roof is on fire.  According to payscale.com, the median compensation of a restaurant manager in the U.S. is $40,217.  Pre Obamacare, the benefit of healthcare afforded to managerial staff provided a lure for those employees who qualified healthcare as a priority, to aspire to become part of the managerial staff.  For a bartender of assumedly similar years of experience (7), the median pay is $42,453.  Given the lack of increased compensation, prestige and power are left as the only motivations for a person seeking a managerial position.  Imagine a CEO setting the roof of their skyscraper ablaze, when they own the fire department’s helicopters.  Those at the top of this industry; the managerial and ownership, rule from an untouchable place in the hierarchy which allows for rampant abuse of power.  To everyone I know, prestige and power are synonymous with compensation, so how do restaurants find anyone willing to become a manager?           

Restaurant staff are burdened with a litany of expectations by management, but hardly ever rewarded for their work performance by their employers.  FOH employees’ work performance is implicitly “rewarded” by the tip received from the customer.  Servers are encouraged to “increase their checks” by mentioning specials, suggesting appetizers, and shoving desserts down the gullets of already stuffed customers.  The higher the bill, the more money the restaurant makes.  The trickledown effect is a higher tip for the server; but that is not guaranteed.          

Robbing Peter to Pay Paul

You feel like a ham hock sitting amongst some peas inside of a pressure cooker.  There are seven days before rent is due, and you have a negative bank account balance.  Because of that built up pressure, no one can open the pot, so you have to attend the meeting with you GM, while simmering inside of it.  It was Tuesday, after a staff meeting, when I was finally able to meet with the GM to discuss my two day schedule (which had been distributed Friday) for the week.  After learning it was not a performance issue which had paired down my hours, I pressed for further explanation/reason.  The previous week I had expressed concern about not having enough shifts to pay my bills, and I was reassured that “things would change.”  In that same time period, a new department manager was hired.  The GM scapegoated the new manager’s oversight as the reason my schedule had been whittled down.  The problem with all of these explanations was that they were all utter bullshit.  Prior to the new manager’s hire, there were five “full time” bar staff members, splitting the workload of 16 shifts.  Despite the restaurant getting busier, the new schedule included 14 shifts which were distributed amongst five bartenders.  Figuring I had hardly anything to lose (just 8 hours of work); I expressed my concern that there were mysterious holes in the schedule where none of the five bartenders were given a start time.  Using basic logic and math skills, I calculated that a total of four shifts were being unaccounted for.  When I mentioned to the general manager I thought it was wrong to give shifts to a manager when there were five other fully capable bartender staff available to work those shifts, I might have well just shaken up my last cocktail and hit the high road.  The GM kindly reminded me of my options; “To quit if I wasn’t happy. Or find another job.” 

Restaurants are not required to provide a set number of hours for employees.  The classifications of “Full time” and “part time” employment do not exist within the industry.   What other job or industry allows for employers to not classify their employees’ status or guarantee hours?  Restaurants are simply not held accountable to employment law in the same way any other business would be.  A previous job I held had paid the (high) price of misclassification of employees as independent contractors; and the men and black coats (IRS) repeatedly showed up at the door to collect the reparation fees for their employment law violations.  However, in the restaurant industry, giant loopholes exist which allow employers to not only ignore basic employee’s rights, but also violate employment and taxation laws.      

As I mentioned earlier, there is really no incentive for a FOH restaurant employee to seek a managerial position.  The salaried compensation for a manager often doesn’t match what a tipped employee can make during the same time period.  By allocating shifts to a salaried manager (but not actually scheduling them), monetary incentive was created.  On one a busy day, was told I was “trusted to tip the manager out fairly” for a full shift of work during which the manager “helped me”.  The work should have been distributed to/scheduled for another bartender.  There is no way for salaried managers to claim tips, which means that despite sharing the “cash” with a manager, the bartenders were most likely left to claim the total amount of all reported tips for payroll purposes.    

Apparently management was neither concerned by nor amused by the implications of my complaints of “unfairness.”  My advocacy for what was “fair and right” was met with an unexplained termination a few days later.

The Confederacy Laughs in the Face of Labor Law

Where are the restaurant workers’ unions?  According to smallbusinesschron.com, there are 13 million people in the restaurant industry workforce, but there are only a handful of unions in existence.  It’s pretty obvious who is responsible for intimidating union organizers; it’s the confederacy of business owners and managers who not only stand to lose their power, but also profits.  For anyone in a position of power, their main fear is usually that they’ll lose it.  Are all owners and managers in the industry horrid people? No, but they certainly will not sabotage the structure of the industry that gives them their power.  Cutting off your nose despite your face isn’t normally an action of those who ascend to a leadership position.  

How many of the 13.1 million restaurant industry employees believe that the business they work for has their best interests in mind?  According to opensecrets.org, a research group which tracks money in U.S. politics and its effects on policy, the National Restaurant Association is a powerful “heavy hitter” lobby.  The NRA contributes millions of dollars to a group of primarily Republican politicians.  The NRA opposes minimum wage increases, blocks immigration reform, and keeps a close eye on food worker advocates’ efforts to quash efforts of unionization. 

The NRA is a member of, and receives substantial lobbying support from the American Legislative Exchange Council (ALEC), whose efforts have most recently been evident in their creation of preemptive bills which "seek to prevent localities from allowing workers to earn paid sick days".  These preemptive bills have been implemented in several states already.  Efforts to establish sick leave mandates are effectively quashed by the promulgation of preemptive bills, before they are even begun.    

Update:  On September 10, 2014, Jerry Brown signed the Healthy Workplaces, Healthy Families Act of 2014 (AB 1522) into law,  requiring employers to provide three paid sick days per year.  The law places the Labor Commissioner as the enforcer of the law, with the authority to impose penalties on violations.  

The Monday following my termination, I went to the DLSE and filed a wrongful termination claim against my employer and added an additional wage claim to the one I had filed.  Despite requesting my final paycheck at the time of my termination, it was 24 days before I received my last paycheck (for the measly 8 hours of work during my last week employed) in the mail. According to California Labor Law Section 201, I was owed a wait time penalty for my final paycheck, calculated as follows:

$8.00 per hour (wage) x 6.5 hours (average hours worked per day) x 24 (wait time in days)=  $1,248

This was only a portion of my wage claim.  For those of you who are unaware of the wage claim process, the purpose of a conference for the employee and employer to settle the claim; avoiding the long and often expensive process of adjudication.  My employer might have well as laughed in the face of the Deputy Labor Commissioner when she advised them of the law which had calculated my claim total.   Their arrogant display of their belief they are somehow above the law made me nothing short of flabbergasted.  They made a settlement offer for $200.00 to which I countered with my final offer of $2,000.00.  The claim will be settled at a hearing approximately one year from now.  I’d hope to assume that the DLSE, whose sole purpose is to uphold labor law, will not find in favor of those who are in flagrant violation of it.  Prior to the conference, I had decided that upon settlement of my wage claim, I would not pursue my retaliation/wrongful termination claim.  Needless to say, now the thought of not pursuing that claim is a laughable to me.

Humble Pie is Not on the Menu for Employers

All people are all out to get what they think is deservedly theirs.  However, the methodology of obtaining that piece varies from person to person; some are more unscrupulous than others in their quest.  This is evidenced by business ethics taught in universities, and marketing, advertising, and PR in business practice are built on the tenets of Machiavellianism.  In the world of F&B, tipping culture secures the power of management by systematically denying hierarchal advancement of the employee. 

Reinventing the Stove

If the F&B industry in the U.S. is truly inherently corrupted, the question then becomes how do we fix it or build another model for it which is sustainable and does not subjugate the majority of its workers? Despite my trials and tribulations and qualms with the industry, I still hope to own my own restaurant someday. 

What is the secret to the successes of restaurateurs whose businesses “beat the odds” of high failure rates and go on to realize profits?      

 Lacy Bee is an unemployed bartender, Admin & HR Assistant, and independent advocate for social justice and workers’ rights.  Despite cynicism and disgust with the existing models of F&B businesses, she nonetheless dreams to own her own F&B establishment in the future.