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Advancing a Living Wage and Human Rights for Restaurant Workers in the United States

By Evelyn Rangel-Medina & Saru Jayaraman

The pace of modern life being quick and fast food and dining out being prevalent, the restaurant industry unsurprisingly is one of the largest employers in the United States.1 What should be shocking is that the practice of tipping restaurant servers is rooted in this country’s legacy of slavery.2 The logic of tipping—that servers make their wages based on the generosity of their customers rather than based on the duty of their employers to compensate them fairly—is at the core of the systemic exploitation of workers in this industry.3 The Restaurant Opportunities Centers United (ROC United) aims to refashion the restaurant industry into one in which working conditions are conducive to a life with dignity for workers. Through an unorthodox approach, ROC United has built a national food justice movement centered on worker justice.4

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Building Power for Poor Restaurant Workers in the United States

Saru Jayaraman and Fekkak Mamdouh founded ROC as a worker center after 9/11 to support the workers from Windows on the World, the restaurant atop the North Tower of the World Trade Center.5 Since then, ROC has expanded to become a network of chapters tied into a national organization, ROC United, operating in major cities throughout the country.6 In the last 15 years, ROC United has won at least 12 workplace justice campaigns, securing $10 million in back pay for workers, and has improved workplace policies in high-profile restaurants owned by celebrity chefs such as Mario Batali and Daniel Boulud.7 ROC United has also created job training and placement programs, conducted worker-centered research and policy work, and opened model restaurants in New York City and New Orleans.8

The practice of tipping restaurant servers is rooted in this country’s legacy of slavery.

ROC United is structured as an “industry-based worker center,” and its social change methods focus on transforming the restaurant industry. Unlike traditional union organizing, ROC United does not seek collective bargaining agreements with employers. Instead the organization focuses on improving industrywide working conditions by engaging workers and employers based on a mutual understanding and commitment to just wages and adequate working conditions. For example, ROC United has created a network of “high-road employers” who are committed to adopting just labor practices of fair wages, giving workers benefits such as paid sick leave, and offering opportunities for professional advancement, particularly for low-wage immigrant workers of color and women. ROC United’s high-road employer network is an antidote to the National Restaurant Association, the powerful restaurant lobby that has succeeded in keeping frozen at $2.13 an hour for 20 years the federal minimum wage for tipped workers.9 Today ROC United has 18,000 restaurant worker members, 150 high-road employers, and thousands of consumer members throughout the country.10

Restaurant servers suffer from three times the poverty rate and use food stamps at twice the rate of the rest of the national workforce.

Yet it takes more than a voluntary network of employers to transform the restaurant industry. A key component of ROC United’s strategy is to dismantle the heart of exploitation in the restaurant industry: inadequate wages that lock workers into poverty and perpetuate vulnerabilities to discrimination.11 To do so, ROC United is looking to harness international human rights to support its domestic One Fair Wage campaign.12 International human rights establish affirmative duties of the state to guarantee individuals a life with dignity.13 International law secures these basic guarantees through the rights to just remuneration, health, food, protections for the family, and protection from discrimination on the basis of race and gender.14 ROC United’s One Fair Wage campaign is essentially a human rights campaign. It seeks to raise wages in the restaurant industry to alleviate poverty among its workers and facilitate worker access to all their human rights.

Worker Justice = Food Justice

Alma Gonzalez (not her real name) has worked in restaurants in California’s San Francisco Bay Area for over a decade. An indigenous woman from Oaxaca, Mexico, Alma immigrated to the United States in the 1980s to support her two children. Like most restaurant workers in this country, she has endured a series of labor rights abuses, sexual harassment by managers and coworkers, wage theft, and discrimination as she watched her white colleagues with less tenure and experience receive raises and promotions while her career stood still. Most recently her employer fired her after she reported to him that the chef had kicked a worker for accidentally dropping a box of onions.

Abuses such as these are commonplace. The people who serve and prepare our food in restaurants across the country too frequently toil in sweatshoplike working conditions and are expected to endure such treatment silently.15 Workers such as Alma—low-income immigrant women of color—are profoundly vulnerable to this exploitation.16 Alma’s story illustrates the interconnected nature of the multiple human rights violations that restaurant workers endure. The poverty wages that lock Alma and others into exploitation are a key feature of this system.

The United States operates under a two-tiered wage structure in which tipped restaurant workers earn below the minimum wage in an overwhelming majority of states.17 With intense lobbying from the National Restaurant Association, the federal subminimum wage has been kept at $2.13 since 1991.18 Only seven states pay tipped and nontipped workers the same minimum wage.19 The remaining states are tied to a wage system developed after the abolition of slavery and premised on the notion that newly freed slaves should not be compensated for their labor.20 Of the 52 states and territories, 45 operate in a two-wage system that pays tipped workers between $2.13 and $7 an hour, a rate below the federal and state minimum wages.

ROC United partnered with the International Human Rights Law Clinic and the Food Labor Center, both housed at the University of California, Berkeley, to study the effects of the subminimum wage on restaurant workers. The two-wage structure constitutes a human rights violation because it perpetuates exploitative working conditions for low-wage workers, particularly women and people of color, the yearlong study found.21 Restaurant servers suffer from three times the poverty rate and use food stamps at twice the rate of the rest of the national workforce.22 However, restaurant workers are not the only ones who pay the price for low wages; higher poverty rates lead to higher use of social services. In fact, these poverty wages essentially equate to a subsidy from taxpayers to employers.23

The two-tiered wage system ensures the subordination and continued exploitation in the restaurant industry of low-wage workers, particularly women and workers of color.

Lifting the Floor and Sealing the Cracks: Eliminating the Subminimum Wage and Advancing a Human Rights Framework Domestically

Alma began working in the restaurant industry because of limited job opportunities available to her as an undocumented immigrant. In fact, the restaurant industry overwhelmingly relies on a vulnerable immigrant workforce to get away with paying chronically poverty wages.24 To Alma, preparing food is deeply connected to her memory of home. However, she soon realized not only that her role in the kitchen was subjugated but also that she was expected to become invisible and not question the exploitation she and her coworkers endured. She worked 10- to 12-hour shifts, without breaks, while bearing with mounting sexual harassment and discrimination. When she did speak up, it was in defense of her male coworker, whom the chef had physically abused. For her bravery, she was fired.25

Alma’s experience is the norm for many restaurant workers in the United States, especially for those who work in states that operate under the subminimum wage. Living off tips is economically unstable since tips fluctuate daily; it also puts these workers in vulnerable positions that exacerbate exploitation—such as sexual harassment.26 Thus the two-tiered wage system ensures the subordination and continued exploitation in the restaurant industry of low-wage workers, particularly women and workers of color.27

The right to work is a universal human right enshrined in both the Universal Declaration of Human Rights and the International Covenant on Economic, Cultural and Social Rights.28 The right to work means that countries have an obligation to “ensure that all workers are paid a wage sufficient to enable them and their family to have access to an adequate standard of living.”29 The right to work is key in that it ties wages to workers’ standard of welfare and prevents a race to the bottom for employers of low-wage workers. The International Labor Organization promotes minimum wages as “one element in a policy designed to overcome poverty and to ensure the satisfaction of the needs of all workers and their families, [and its] fundamental purpose … should be to give wage earners necessary social protection as regards minimum permissible levels of wages.”30 The Universal Declaration of Human Rights is not a binding agreement, but it is recognized as the international consensus on fundamental rights. The United States has signed but not ratified the International Covenant on Economic, Cultural, and Social Rights, and this means that the United States recognizes the right to work and is bound to the fundamental aims of the treaty.

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Not only does the subminimum wage structure violate the right to work, but also because of its disproportionate impact on workers of color it violates international human rights standards prohibiting discrimination.31 The subminimum wage is the cornerstone of a system of exploitation that violates numerous human rights of workers such as Alma.32

Raising the minimum wage to a living wage is a human rights issue that can have profound effects on the lives of low-wage workers.

International human rights standards give advocates the frameworks and a vision to advocate beyond a minimum wage and to make substantive new demands for low-wage workers in the United States. The consistent human rights violations that workers experience throughout the country can be alleviated by an industrywide shift to raise the minimum wage and create a unitary wage for tipped and nontipped workers—a unitary wage which would approach a living wage in the restaurant industry. Success in this effort could provide a model for transforming the U.S. economy as a whole.

ROC United’s Human Rights Advocacy: Advancing a Right to a Life with Dignity

Through its One Fair Wage campaign, ROC United seeks to eliminate the subminimum wage and raise the minimum wage nationally by targeting key states and localities.33 Raising the minimum wage to a living wage is a human rights issue that can have profound effects on the lives of low-wage workers.34 Eliminating the subminimum wage is critical to tackling poverty in a majority of states operating under the two-tiered system.

The restaurant industry is one of the most vibrant in California. Although restaurant owners stand to benefit from the growing economy, low-wage immigrant workers of color have historically endured increased levels of exploitation through industry booms—from low wages and lack of benefits to persistent occupational segregation and discrimination, racial and gender discrimination, and sexual harassment. Women workers of color are precariously situated in the restaurant industry because of the intersectional layers of discrimination they face.35

In California most restaurant workers are Latino or Latina, and over one-third of them are immigrants. They work under “the highest levels of directly observable occupational segregation” in the restaurant industry, “while African Americans are largely absent from [higher-paying] full service restaurant occupations and overrepresented in limited-service fast food occupations.”36 Furthermore, California just enacted the highest-minimum-wage law of any state; the law raises the minimum wage to $15 an hour.37 Because California does not have a two-tiered wage structure, the new law includes tipped workers.

Eliminating the subminimum wage is critical to tackling poverty in a majority of states operating under the two-tiered system.

However, immigrant low-wage restaurant workers of color in California suffer from the highest poverty levels and face significant barriers to accessing this higher minimum wage.38 ROC United has found that employers frequently do not inform workers that the minimum wage has increased, and even when workers become aware of the new minimum-wage law, they are unlikely to demand an increase for fear of retaliation. These workers have few employment opportunities; this limitation forces them to stay in these jobs and earn subminimum wages. Their vulnerability especially increases if they lack a documented status.

By organizing workers and advocating higher labor protection for workers, ROC United is advancing a human rights advocacy framework to ensure that low-wage restaurant workers can access a living wage. One of the biggest fights in California will be the enforcement of the new minimum wage. Two California chapters of ROC United are engaged in mobilizing workers to hold employers accountable and will embark on popular education workshops to inform workers of their rights. Workers are already leading in mobilizing against wage theft and have been using human rights discourse to do so.

ROC United plans to help professionalize the restaurant industry to remove the stigma that working in the industry is not respectable. The lack of respect leads to a lack of urgency and lack of demanded rights. ROC United seeks to implement existing laws in a meaningful way and wants restaurant workers to have the same dignity that people in other industries have and the ability to maintain a prosperous quality of life.

Evelyn Rangel-Medina
Director, Bay Area Chapter of Restaurant Opportunities Centers
Intern, Berkeley Law’s International Human Rights Law Clinic

900 Alice St. #300
Oakland, CA 94607

702.534.9115
evelyn@rocunited.org

Saru Jayaraman
Co-Founder and Co-Director, Restaurant Opportunities Centers (ROC United) Director, Food Labor Center,
University of California, Berkeley


275 Seventh Ave. Suite 1703
New York, NY 10001
210.243.6900
saru@rocunited.org

Notes

  1. See Restaurant Opportunities Centers United (ROC United) et al., Tipped Over the Edge: Gender Inequity in the Restaurant Industry 5 (Feb. 13, 2012) (“According to the Bureau of Labor Statistics, seven of the ten lowest-paid occupations—and the two absolute lowest-paying occupations—are jobs in the restaurant industry.”).
  2. See Food Labor Research Center et al., Working Below the Line: How the Subminimum Wage for Tipped Restaurant Workers Violates International Human Rights Standards 9 (Dec. 2015) (George Pullman, owner of Pullman Train Company, largest employer of African Americans in the 1920s, “purposely fostered the ‘servile relations’ characteristic of the anti-bellum [sic] South in train travel and almost exclusively employed black men as porters and black women as maids”) (internal citations omitted). See also Saru Jayaraman, Forked: A New Standard for American Dining 33–34 (2016) (“In the late 1800s, [American hospitality and railway companies] argued that they should not have to pay wages to their employees—many of whom were former African-American slaves …—because these workers were earning tips. In other words, the impetus for these industries to be able to hire workers and not pay them a wage at all, arguing that their income could come entirely from customer tips, arose in part from [this] nation’s history of subjugation based on race.”).
  3. See Jayaraman, supra note 2, at 35 (“In the United States, the practice of tipping has been institutionalized through a wage system that not only created a justification for the restaurant industry to not have to raise wages for its own workers, but has also very nearly led to the industry arguing that they should not have to pay their workers at all.”).
  4. See generally Rinku Sen, The Accidental American: Immigration and Citizenship in the Age of Globalization 176 (2008) (“There were two important reasons for expanding [ROC United nationally]. First, there was tremendous demand—workers from all over the country had been calling them almost since the beginning, seeking advice about how to get control of their own abusive industries. People needed help everywhere because of the second reason: national policies affected local restaurants, but restaurant workers themselves had little ability to shape these policies.”).
  5. ROC United, Our History (n.d.).
  6. See ROC United, About Us (n.d.). ROC United operates in Albuquerque, the San Francisco Bay Area, Boston, Chicago, Houston, Los Angeles, Miami, Southeast Michigan, New Orleans, New York, Philadelphia, Seattle, and Washington, D.C.
  7. See ROC United, supra note 5. See, e.g., Adam B. Ellick, Boulud Settling Suit Alleging Bias at a French Restaurant, New York Times (July 31, 2007); ROC United, Worker and ROC-NY Dispute at Del Posto Resolved, Star Chef Mario Batali to Become “High Road Employer” (Sept. 24, 2012).
  8. See ROC United, supra note 5. ROC United is projected to open two additional restaurants in Washington, D.C., and Oakland, California, in 2017.
  9. See Saru Jayaraman, Behind the Kitchen Door 42 (2013).
  10. ROC United, supra note 6.
  11. Food Labor Research Center et al., supra note 2, at 14 (“The general poverty pattern for tipped workers employed in states with the subminimum wage reveals high rates of poverty.”).
  12. One Fair Wage, About (n.d.).
  13. See Food Labor Research Center et al., supra note 2, at 13 (“These international standards flow from several sources, including: the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social, and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination against Women (ICEDAW), and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).”) (internal citations omitted). See generally Katherine L. Caldwell, With Great Power Comes Great Responsibility: Grassroots Corporate Campaigns for Workers’ Human Rights, 45 Clearinghouse Review 225 (Sept.–Oct. 2011).
  14. See generally Food Labor Research Center et al., supra note 2, at 13–25.
  15. See Jayaraman, Behind the Kitchen Door, supra note 9, at 16 (“The people I write about in this book demonstrate not only how we can significantly improve the lives of workers in the restaurant industry, but also how the quality of our food depends on the conditions behind the kitchen door. Their stories may seem dramatic or depressing, but they are true and, in my experience, representative. Over the last decade I’ve heard stories similar to those related in this book dozens of times.”); Saru Jayaraman, From Triangle Shirtwaist to Windows on the World: Restaurants as the New Sweatshops, 14 New York University Journal of Legislation and Public Policy 625 (2011). See also Heidi Shierholz, Economic Policy Institute, Low Wages and Few Benefits Mean Many Restaurant Workers Can’t Make Ends Meet (Aug. 21, 2014).
  16. See Restaurant Opportunities Centers United, Ending Jim Crow in America’s Restaurants: Racial and Gender Occupational Segregation in the Restaurant Industry 17 (Oct. 20, 2015) (“In terms of gender segregation and inequality, the lowest wage states have substantially greater levels of occupational segregation, but inequality in wage levels are [sic] pretty consistent across all states. In terms of racial segregation and inequality, there is little difference in occupational segregation across states, but there are substantial differences in the levels of racial wage inequality. In all states, women and people of color clearly have lower wages, regardless of the occupational category they are in.”) (emphasis added).
  17. Food Labor Research Center et al., supra note 2, at 1 (tipping “has become codified in a two-tiered minimum wage system that denies tipped restaurant workers fair wages and basic labor protections”).
  18. Sylvia A. Allegretto & David Cooper, Economic Policy Institute, Twenty-Three Years and Still Waiting for Change: Why It’s Time to Give Tipped Workers the Regular Minimum Wage 2 (July 10, 2014).
  19. U.S. Department of Labor Wage and Hour Division, Minimum Wages for Tipped Employees (Jan. 1, 2016) (these states pay same minimum wage to tipped and nontipped workers: Alaska, California, Minnesota, Montana, Nevada, Oregon, and Washington).
  20. Food Labor Research Center et al., supra note 2, at 9.
  21. See id. at 3 (“The subminimum wage structure violates the human rights to an adequate standard of living and to just and favorable remuneration of tipped restaurant workers.”).
  22. Id. at 14, 17.
  23. Patricia Cohen, Working, but Needing Public Assistance Anyway, New York Times (April 12, 2015) (“taxpayers are providing not only support to the poor but also, in effect, a huge subsidy for employers of low-wage workers”). See Hannah Levintova, Who Subsidizes Restaurant Workers’ Pitiful Wages? You Do, Mother Jones (April 20, 2015); Khushbu Shah, 52 Percent of Fast Food Workers Need Government Assistance to Make Ends Meet, Eater (April 13, 2015).
  24. See Jayaraman, From Triangle Shirtwaist to Windows on the World, supra note 15, at 633 (“The industry also provides employment opportunities for new immigrants. In New York City, almost seventy percent of restaurant workers are foreign-born. Like the garment-manufacturing industry at the turn of the twentieth century, the restaurant industry includes a mix of immigrants, young workers, and other marginalized populations.”) (internal citations omitted).
  25. Alma’s coworker was a worker of color, and the owner was white. This racial dynamic is endemic in the restaurant industry (see Restaurant Opportunities Centers United, supra note 16, at 1–3 (“Workers of color are concentrated in lower-level busser and kitchen positions in fine-dining restaurants, and overall in segments of the industry in which earnings are lower. A canvass of 133 fine-dining establishments found that 81% of management and 78% of higher-level non-management positions such as captain, manager, and bartender are occupied by white workers, a disproportionate amount of these male. Mobility for workers of color is limited; of workers that have been denied a promotion, 28% cited race as the primary reason for their lack of opportunities. Overall, after adjusting for education and language proficiency, workers of color receive 56% lower earnings when compared to equally qualified white workers.”) (internal citations omitted)).
  26. See Restaurant Opportunities Centers United & Forward Together, The Glass Floor: Sexual Harassment in the Restaurant Industry 1 (Oct. 7, 2014) (“Since women restaurant workers living off tips are forced to rely on customers for their income rather than their employer, these workers must often tolerate inappropriate behavior from customers, co-workers, and management.”). See also Jayaraman, supra note 9, at 130 (“One woman told me that when she’d asked her manager for a promotion from server to bartender, he’d asked her what she’d be willing to do for a promotion. Several woman servers reported being forced to flash their managers before they punched in to work. Others described how aggressive men, mostly executive chefs, threw dishes, screamed racial epithets, and encouraged fights among workers. Since most of the men executive chefs ran hostile, testosterone-driven kitchens, women in the kitchen were constantly being ghettoized, pushed into pastry positions where they earned less money and had no opportunity for advancement in the restaurant.”).
  27. Food Labor Research Center et al., supra note 2, at 1.
  28. International Covenant on Economic, Social, and Cultural Rights, G.A. Res. 2200A (XXI), U.N. GAOR 21st Sess., Supp. No. 16, at 49, arts. 6–7, 11, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3 (entered into force Jan. 3, 1976); Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. GAOR, 3d Sess., art. 23(3), U.N. Doc. A/810 (Dec. 10, 1948).
  29. Special Rapporteur on Extreme Poverty and Human Rights, Final Draft of the Guiding Principles on Extreme Poverty and Human Rights, Human Rights Council, 84(b), U.N. GAOR, U.N. Doc. A/HRC/21/39 (July 18, 2012) (by Magdalena Sepúlveda Carmona).
  30. International Labour Organization, Minimum Wage Fixing Recommendation, ILO No. 135 (June 22, 1970).
  31. Food Labor Research Center et al., supra note 2, at 19 (“The prohibition against discrimination is incorporated into every international human rights treaty and States acknowledge it as a fundamental, universally recognized right. Two international treaties are dedicated to the topic of discrimination: ICERD on race discrimination and ICEDAW [International Convention on the Elimination of All Forms of Discrimination Against Women] on discrimination against women.”) (internal citations omitted).
  32. See generally id.
  33. One Fair Wage, supra note 12 (“Through our ONE FAIR WAGE campaign, we will be advancing campaigns across the country to pass legislation in cities and states that will require the restaurant industry to pay all its employees at least the regular minimum wage.”).
  34. Indivar Dutta-Gupta, Georgetown Center on Poverty and Inequality, Improving Wages, Improving Lives: Why Raising the Minimum Wage Is a Civil and Human Rights Issue 9 (Oct. 2014) (“A higher minimum wage is fundamental to achieving civil and human rights. Raising the minimum wage―—including the tipped minimum wage――—will help people of color, women, LGBT individuals, and other disadvantaged individuals disproportionately, as these groups are disproportionately represented in low-wage jobs. Since the mid-20th century through today, an adequate minimum wage has been understood as core to the struggle for civil rights.”).
  35. See id.
  36. See Restaurant Opportunities Centers United, supra note 16, at 3–4 (this form of segregation results, after adjusting for education and language proficiency, in workers of color receiving 56 percent lower earnings than equally qualified white workers; women of color, on average, earn 71 percent of what white men earn in restaurant industry).
  37. S.B. 3, 2015–2016 Reg. Sess. (Cal. 2016). See Christine Mai-Due, California Now Has Highest Minimum Wage in the Country (Just Don’t Tell New York), Los Angeles Times (April 4, 2016).
  38. See, e.g., Kate Williams, Ex-employees File Suit Against Calavera Restaurant, Berkeleyside (April 4, 2016).
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