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Workers ROC the Restaurant Industry

How low-wage food service workers are serving up justice

ROC-NY members head out of the kitchen and into the streets. (Courtesy: ROC United)AFL-CIO President Richard Trumka has a hard time pronouncing “Jayaraman,” but he’s been getting some practice.

At a conference of labor researchers this spring, the union leader introduced Saru Jayaraman, co-director and co-founder of the Restaurant Opportunities Centers United (ROC), as a “real pioneer.” No wonder he’s impressed. In an industry that, according to the Labor Department, is more than 95 percent unorganized, ROC has been winning money settlements for workers, improving conditions in trendsetting restaurants, and making a policy impact large enough to render one of the nation’s most powerful corporate lobbies visibly nervous.

Indeed, in calling Jayaraman a pioneer who’s “demanding answers to the questions that need to be asked about the future of workers,” Trumka may have things backward. The truth is, ROC’s not demanding answers so much as coming up with them, and they are answers that may have beyond-the-restaurant relevance for twenty-first-century labor.

Jayaraman was a 26-year-old lawyer working with immigrants in New York when she was tapped to head what became ROC. She’d done plenty of eating out, but, she admits, “I’m embarrassed to say I couldn’t think of a single person who had touched my food.”

September 11 changed all that. Seventy-three restaurant workers at Windows on the World died that morning. Another 250 lost their jobs. Soon after, the hotel workers union then known as HERE approached Jayaraman and Fekkak Mamdouh, one of the leading waiters at Windows, about starting an organization to support the survivors.

Today, ROC has some 10,000 members in thirty cities, while Jayaraman—now the mother of two young children—has become the director of the new Food Labor Research Center at the University of California, Berkeley. She is also the author of Behind the Kitchen Door, which was published by Cornell University Press this past spring with a foreword by Eric Schlosser, the author of Fast Food Nation. The book and her publicity tour are all part of what ROC calls its “three-pronged” strategy. Prong one: organize workers, punish the worst employers and win wide-ranging settlements. Prong two: promote the “high road to profitability” and best practices in the industry. Prong three: change local and national policy.

Last fall, the organization scored a win on a couple of those prongs when they struck a deal with Mario Batali’s famed Del Posto in New York, a place where the beef is truffled, the octopus charred and the prix-fixe dinner costs $115. In 2010, ROC filed a lawsuit alleging that the restaurant’s management had denied workers tips and overtime and engaged in “race and national origin discrimination and retaliation.” The settlement didn’t only include cash, although there was $1.15 million of that for thirty-one current and former employees; it also contained cultural sensitivity training for managers and a new emphasis on promoting employees from within. And Del Posto agreed to become a “High Road Employer,” collaborating with ROC on a plan for implementing paid sick days as well as vacation days and benefits.

Batali’s is not the only business that has come to an agreement with ROC without a strike, a union or National Labor Relations Board involvement. Brand-sensitive restaurants are vulnerable to public shaming, and no white-tablecloth establishment wants its diners serenaded by protesters, like the ones who showed up with ROC signs outside Del Posto—or, worse, treated to the sight of inflatable vermin. As Top Chef’s Tom Colicchio (of Craft) put it, becoming a ROC partner is smart: “What’s the alternative? Having a twelve-foot cockroach in front of your restaurant?”

At the DC conference, Jayaraman announced some next steps. High-profile settlements are nice, but the United States has more than 10 million restaurant workers, and restaurant work is tied with retail as the nation’s fastest-growing and most poorly paid sector. Seven out of the ten lowest-paying jobs in the country are food-service-related, with dishwashers earning a median wage of $8.87 an hour—and there are more than 370,000 of them. What needs to change isn’t one restaurant or even one restaurant chain, but the entire sector—and for that, ROC is hot in pursuit of what Jayaraman calls its “Michael Pollan moment.” 

Books like Pollan’s The Omnivore’s Dilemma prodded conscientious eaters to think critically about their food. The demand for change grew, and restaurants started boasting of their locally sourced and organic ingredients. If people can be inspired to care about the origins of tomatoes and the ethical treatment of  meat, Jayaraman reasons, surely they can be persuaded to care about restaurant workers like Woong Chang and “Claudia” and “Frantz,” three of the people profiled in Behind the Kitchen Door.

Woong Chang was a DC bartender who lost his job when he declined to work more than a handful of shifts with swine flu. “Frantz” was a Haitian seafood prep cook whose managers at the Capital Grille Steakhouse in Miami refused to give him any job but washing dishes. “Claudia” was a “tipped” worker trying to get by on no tips to speak of at a Texas pancake chain.

Because women tend to be concentrated in the low end of the industry, they take home, on average, 68 percent of what male servers earn ($17,000 versus $25,000 annually). Working nights, Claudia often took home a pay slip but no pay, all her wages having gone to taxes. ROC’s research suggests that restaurant workers rely on food stamps twice as much as the rest of the workforce. Before she quit, Claudia was going hungry—or flirting with the cooking staff out of desperation to score a bite of leftover shrimp. 

ROC hopes the stories in Behind the Kitchen Door will get diners to pay attention to their servers when they eat out. But it’s not just the workers that the group is determined to highlight: it’s also the Big Food industry ROC is up against.

“I’m glad you’re writing about us, but I wish you were writing about them,” Jayaraman protested when we sat down to a meal at Busboys and Poets in Washington this summer. 

She has a point.

* * *

Unlike scads of American workers, the ones in the restaurant industry aren’t mourning the loss of “good union jobs”; they never had them. Living wages, overtime pay, paid sick days, transparency in promotion—it’s not that restaurant workers don’t want or need those things. If they don’t have them, it’s largely because they’re up against one of the most powerful lobbies the public’s barely heard of. The National Restaurant Association, or the other NRA, is the US trade association for the $600 billion restaurant industry. A member of the so-called Gang of Six big industry associations, it’s also a member of the reactionary American Legislative Exchange Council (ALEC), and it has consistently hired lobbyists named the “best in the business.” Fortune magazine once called the organization one of the twenty-five most powerful lobbies in Washington.

With nearly 750 employees, the other NRA’s annual budget is around $30 million, of which $2.7 million went to lobbying in 2012 (and this doesn’t include lobbying by state restaurant associations). The NRA represents mom-and-pop restaurants the same way the US Chamber of Commerce represents your local cooperative bakery. The real movers and shakers are the big food chains: McDonald’s, Yum Brands (which owns KFC, Taco Bell and Pizza Hut) and Darden (Red Lobster, Olive Garden, the Capital Grille). They’re Fortune 500 members with CEOs earning approximately $14 million, $13 million and $8 million, respectively. In fact, research by the Economic Policy Institute reveals that restaurant CEO pay was an astounding 788 times higher than employee earnings across the sector last year.

What do these Fortune 500 food companies pay their lobby to do? In 1996, future presidential candidate Herman Cain, then president of the NRA, cut a deal with Congress to accept a raise in the federal minimum wage in exchange for the minimum wage for “tipped” workers staying at $2.13 indefinitely. Employers are supposed to make up the difference when workers’ tips and pay don’t add up to the minimum wage, but in thousands of surveys of restaurant workers, Jayaraman has found only one instance where an employer made that a regular practice. 

“The NRA has set standards that are so low, they’re virtually nonexistent,” says Andy Shallal, the owner of Busboys and Poets and one of ROC’s “High Road” partners. Shallal once served on the board of the DC NRA. On wages and hours and working conditions, he came to believe, these so-called standards were morally wrong. He now pays a minimum of $10.25 to all, and he’s opened five hit restaurants in eighteen years.

When ROC brought Shallal and other members of the group it founded, called RAISE (Restaurants Advancing Industry Standards in Employment), to a DC press conference in support of increasing the minimum wage this year, they pierced the NRA’s veneer. “They claim to represent the entire industry. They don’t,” says David Levine of the American Sustainable Business Council. 

Along with Representative George Miller (D-Calif.), co-sponsor of the Fair Minimum Wage Act, and Representative Donna F. Edwards (D-Md.), sponsor of 2011’s failed WAGES Act, the restaurateurs called for improved standards in the industry—and made the case that fair wages and worker protections are not only right; they’re good for the bottom line. 

“We can make a numbers case: less turnover and less stressed workers keeps down costs and adds to productivity over the year,” Paul Saginaw, the co-founder of Zingerman’s Deli in Ann Arbor, Michigan, tells me. Plus, he adds, “having restaurant workers going hungry is simply embarrassing.” 

* * *

In 2005, ROC was part of a campaign that raised the minimum wage for tipped workers in New York State to $5 an hour, making New York one of thirty-two states where the tipped minimum now stands above the federal norm. Seven states have extended the federal minimum wage of $7.25 to all. On the other hand, some states have done away with the state minimum wage altogether, which means that restaurants too small to be covered by federal regulations—those with $500,000 or less in revenue—don’t have to pay their workers a wage at all.

The next wave of common-sense workplace reform is extending paid sick leave. In 2007, San Francisco became the first city in the country to require paid sick leave for all workers. Since then, DC and Milwaukee have followed with their own versions, as have New York, Seattle and Portland, Oregon. In 2011, Connecticut became the first state to require paid sick days, and other states are considering similar measures. Salon has called paid sick days the next “liberal litmus test.” 

The NRA has actively opposed every living-wage and paid-sick-leave initiative and points to the failure of such measures in Illinois, Indiana and North Carolina as a victory. In DC, it negotiated a closed-room deal to exempt tipped workers from the city’s sick-leave law. In March 2013, it joined ALEC and the US Chamber of Commerce in lobbying Philadelphia Mayor Michael Nutter to veto a bill passed by the City Council that would have allowed over 180,000 workers to earn up to four paid sick days per year. Nutter complied.

The next phase of the sick-leave battle is “pre-emption,” an increasingly popular scheme whereby state governments pass legislation overruling local laws, often at the behest of industry groups. Wisconsin Republicans overturned the sick-leave law that had passed with 70 percent of the vote in Milwaukee. Florida Governor Rick Scott recently signed similar legislation that not only prevents cities from passing paid-sick-leave laws in the future, but also invalidates a paid-sick-leave initiative that was slated for a vote in Orange County in 2014.

“The NRA’s not hiding their involvement in the anti-paid-sick-days fight,” says Brendan Fischer, general counsel at the Center for Media and Democracy (CMD), which produced the report ALEC Exposed. State restaurant associations have already played a role in introducing pre-emption bills in almost a dozen states. In Florida, two companies helped write the legislation: Disney and Darden.

At a 2011 ALEC meeting in New Orleans, the Wisconsin bill was the center of a special session on pre-emption strategies for paid sick days. According to documents obtained by the CMD, legislators received a target list of states where paid-sick-leave mandates are in effect and a map of states where pre-emption bills have been introduced, all courtesy of the NRA.

Ellen Bravo, director of the Milwaukee-based Family Values at Work Consortium, says pre-emption laws are another sort of voter suppression: “They’re seeking to limit not just who can vote, but what we can vote for.”

* * *

It’s not just smart public relations to take on a huge, ugly opponent like the NRA and be able to tell a clear story about hardworking waiters and dishwashers. It’s also smart power analysis. Trade unions came of age in an era when workers knew where their bosses lived, but today more and more workers find that the real power is very far from the franchise-holder who signs their paychecks.

One of the most successful organizing drives of recent times, Justice for Janitors, targeted the enormous but obscure real estate companies that hire building service contractors. “In all of our janitorial organizing, we would try to do two things simultaneously: split the bad guys and then put them back together into some kind of association that we could negotiate with,” says Stephen Lerner, who headed up that campaign. 

In targeting the NRA, ROC is doing something similar and similarly smart, namely targeting an entity that sets standards nationwide and could change the sector.

The NRA is clearly paying attention. When Behind the Kitchen Door came out, a full-page ad appeared in USA Today accusing ROC of being a labor union “front group.” The ads directed readers to ROC Exposed, a website that mimics ROC’s own and accuses the organization of engaging in “mob-style shakedowns,” among other things. ROC Exposed has been traced to the Employment Policies Institute (EPI), a front group formed in 1991 by Richard Berman, a professional mudslinger, to argue “the importance of minimum wage jobs for the poor and uneducated.”

“I sometimes think the NRA takes me more seriously than some of my allies,” Jayaraman mused over dinner.

Until ROC came along, the NRA was the only accepted “expert” source on the restaurant business. That’s why ROC puts such an emphasis on research. In addition to conducting thousands of surveys and issuing dozens of reports, ROC has also made a habit of showing up at NRA meetings and taking workers to protest on the NRA’s “Lobby Day.” This year, when ROC held its own lobby day with the RAISE restaurateurs on Capitol Hill, ROC Exposed protesters showed up outside.

“It’s very flattering,” Jayaraman said. “After years of us flash-mobbing the NRA’s Lobby Day, now they are picketing ours.” But it’s painful, too: there’s been a congressional probe of ROC by probe-mad Republican Darrell Issa, and just this year an IRS complaint was filed charging that it engages in illegal lobbying.

“ROC must be doing something [right] or the restaurant industry wouldn’t be going to such trouble,” says Marion Nestle, professor of nutrition, food studies and public health at New York University. As the obesity epidemic once was to the soda industry, so the worker justice movement is now to the big restaurant industry, Nestle believes.

Part of what’s made ROC effective is its ability to do things that unions can’t, like secondary picketing and boycotts; also, it’s not tied to a cumbersome structure of national and local boards. Still, while traditional labor has the problem of a model in decay, worker centers like ROC have vulnerabilities too, says David Rolf, the president of SEIU Healthcare 775NW as well as one of the community/labor innovators behind the current wave of fast-food-worker walkouts. A settlement is not the same as a union contract. (ROC’s agreements typically last six or seven years before they have to be renewed.) There’s also the challenge of funding. “How do [they] find a model that changes lives, does it to scale and produces revenue so [they] aren’t subject to what happened to ACORN?” he asks.

For years, Berman’s EPI fought ACORN's efforts to increase the minimum wage. EPI took out a full-page ad in The New York Times that directed readers to RottenAcorn.com. Berman worked for the tobacco industry and the soda industry, now he’s going after ROC. And ROC, a non-profit, is vulnerable.

Right now, groups like ROC are overwhelmingly dependent on big foundations, which get skittish—especially when facing IRS complaints and probes by Congress. And while the SEIU and AFL-CIO are funding more community organizing than they have in the past, they don’t yet offer an alternative for “alt-labor.” Still, that hasn’t stopped Jayaraman, Mamdouh and their colleagues from opening two worker-owned restaurants, COLORS (in New York and Detroit), and training hundreds of largely low-wage immigrant workers in fine-dining and bartending skills (enabling them to advance through the ranks and boost their wages). They are considering a membership structure and have almost finalized a twenty-five-year plan. Breaking through on the foodie front is a critical part of that. 

As Michael Pollan has pointed out, there are limits to what consumers can do. The food movement’s done more to shift the culture than it has to change the political and economic forces shaping the food system. Coca-Cola didn’t change, except insofar as it found a way to profit off bottled water. Still, Pollan said, “When big business has such sway, they aren’t vulnerable in Congress; they are vulnerable in terms of brand.”

Right now, Jayaraman is riding a wave. This April, as part of her book tour, she appeared on HBO’s Real Time With Bill Maher. Bouncing onto the set in an eye-grabbing red dress, she wowed the host and studio audience. Panelist David Stockman, the former Reagan administration budget director, seemed to bore even himself with his musty case against minimum-wage laws. “Even if you’re a selfish asshole, you don’t want someone sick touching your food,” Maher responded emphatically. 

So watch out, NRA—the Restaurant Opportunities Centers United just might be about to have its Michael Pollan moment.