READER, Please note: This posting will change... it is a work in progress...
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According to the 2011 National Restaurant Association’s Pocket Factbook, (yes, I'm aware this data is outdated!)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.
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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)
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.
