Power to the servers

by David Forbes March 21, 2015

Asheville’s food service workers mobilize to demand better conditions, protection for their rights and a share of a booming industry

Above: The image of the Asheville Sustainable Restaurant Workforce, designed by Jessi Steelman.

On the cold, blustery afternoon of Feb. 23 about 15 people gathered at the West Asheville Public Library to talk about the realities of the city’s supposedly booming food service industry.

The meeting was organized by the Asheville Sustainable Restaurant Workforce, an advocacy group pushing for better pay and conditions in an industry that’s at the heart of Asheville’s economy.

Alia Todd, a restaurant industry veteran and one of ASRW’s organizers, said that people like them form the core of Asheville’s economy.

“It’s not young kids flipping hamburgers to get through school; it’s adults, it’s women, it’s women with children,” Todd said. “It’s people’s livelihoods, making real money and trying to survive.”

All around, she continued, they saw the signs of a full-fledged tourism boom, but gain little from it.

“Times are good for restaurant owners in Asheville; wages are still very stagnant,” Todd said. “Asheville business is doing really great and it’s about time for some workers to start doing really great too. The only way to do that is to get together” to address issues, “admit that they are true and figure out what we can do about it.”

ASRW is working on issues like paid sick days (one worker said that most restaurants have a de facto “tough shit” policy when it comes to illness) health benefits and vacation time. But, while those remain important goals, Todd observed that in many cases in Asheville, as around the country, food service workers aren’t aware of their rights and face problems just getting the pay and protection they’re due under existing labor laws.

So they’d come to talk and organize, and Carol Brooke, an attorney with the N.C. Justice Center, made the trip from Raleigh to add her legal expertise to the discussion. Two of the attendees were from Vincenzo’s, a downtown fixture that closed the day before the meeting with, they said, barely a few days notice for its employees.

“We thought we’d get another year or two,” Michael Mouser, a former chef at Vincenzo’s, told the Blade after the meeting. though they were aware of the conflict between restaurant owner Dwight Butner and landlord Chris Peterson. “Someone was going to lose out. Unfortunately there’s about 20 of us that are going to be suffering the most.”

“This is very important to the Asheville workforce because our economy is totally based off the food service industry,” he said of his reasons for attending. “It’s important to me because I was a chef almost four years at Vincenzo’s, very loyal, very dedicated. Even though my restaurant shut down, I still love this industry and want to support it in any way I can.”

Before Brooke presented a primer on the ins and outs of labor laws, the workers took turns describing how Asheville’s economy felt to them. Some said “booming,” before going to words like “owner-driven,” “disproportionate” and “exclusive.”

Getting there

The ASRW emerged out of Just Economics’ Voices for Economic Justice program in May 2014, which both Todd and fellow co-founder Jessi Steelman participated in. That program, which has also helped organized transit riders and public housing residents is one way, the non-profit’s Executive Director Vicki Meath told the attendees at the Feburary meeting, of helping people deal with “frankly, the harsh realities of capitalism” and trying to ensure all voices are heard.

“It’s exciting to live in a day and age where we know worker organizing still works; even though we’re consistently sold the narrative that it doesn’t,” she said, noting that advocacy groups and public pressure had played a role in Wal-Mart recently agreeing to raise its wages.

ASRW, which started ramping up its efforts last summer, has come along at a time when low wages and a rising cost of living have made pay and working conditions an increasing topic of discussion in Asheville. The area’s food service sector employs 21,790 people, virtually a city unto itself, according to 2013 numbers from the Bureau of Labor Statistics. The median pay in that industry is $9.07 an hour, including tips, putting it well below the living wage of $12.50 an hour ($11 if a business offers health insurance) necessary to make ends meet without public or private assistance. That number’s also driven up a bit by higher-paying management jobs in the industry. The median wage for a waiter is $8.86 an hour, and for bartenders it’s $8.73.

By forming alliances with other groups as well as “reaching out to diners and business owners,” as Todd put it — with “workers being the most primary part” — the group hopes to change that.

In the weeks leading up to the late February workshop, ASRW released a video summarizing some common labor questions and increased connections with other groups. Fliers for Raise Up for 15, a regional group that has an organizer in Asheville and is pushing for better wages and unionization, starting with the fast food industry, were on a table alongside ASRW and Just Economics info.

Knowledge in the arsenal

Emerging from the discussion between the attendees and Brooke’s presentation were some answers to common questions about wages and workers’ rights in the food service industry:

• While North Carolina is an “at-will” employment state, giving employers wide latitude about hiring and firing, some protections under state and federal law do exist.

• Employers still can’t fire or discriminate against workers due to their race, religion, age, disability, pregnancy and gender. Cutting down hours can, in some cases, constitute discrimination.

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

• Employers also, under the state’s anti-retaliation law, can’t penalize workers for complaining about wages or health and safety issues. Complaints about retaliation are first investigated, Brooke noted, by the state Department of Labor, “which is not very effective,” but after that process is completed employees have the right to sue, which she observes is usually far more favorable to workers.

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

• Unless they’re upper management, the vast majority of restaurant workers are not exempt from overtime, even if they receive a salary. Their employer still has to pay them at an overtime rate if they work more than 40 hours in a week.

• Tips, both cash and credit card, are the property of a worker, and employers can’t deduct from them for unspecified “overhead” or other costs. If they’re paying the tipped minimum wage of $2.13 an hour before tips, they can’t deduct items like broken dishes from the employee’s pay.

• Restaurant workers are not “independent contractors” and treating them as such is illegal.

• Companies can’t require workers to work off the clock for duties like rolling silverware or cleaning. If workers are spending 20 percent or more of their time doing such work, they must be paid at least the regular minimum wage of $7.25 an hour for it, especially if they’re during a time, like before opening or after closing, when there’s no possibility of tips.

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

• Waiters can’t be forced to share tips with non-tipped employees, a way some restaurants use of subsidizing low wages for cooks or dishwashers. Waiters can choose to voluntarily give other workers a share of their tips, but their employer can’t require them to.

• Under state law, employers can’t deduct the cost of a uniform or other item of clothing from an employee’s pay unless, like a white shirt or black pants, it has a use outside work.

• Brooke and multiple attendees noted the protections and potential power provided by unions, something Todd later noted she hopes will become a less verboten concept in Asheville. While North Carolina’s “right to work” laws do place some curbs on unions, their ability to organize is protected by federal law. Brooke emphasized that a union contract can replace the usual broad “at-will” authority employers have over their employees with more general protections and that unions or similar organizations could help nip problems in the bud by providing a way for workers to stand together.

“It’s a whole lot quicker to fix something through everyone standing up for their co-workers,” she said.

“They have [Asheville Independent Restaurants]; it’s a coalition of owners,” Mouser said. “It’s our turn. Let’s get together, organize ourselves.”

These problems affect workers across the city and showed the need for those in the restaurant industry to communicate, Todd noted, “we’re not a large group here today, but we really represent more than just the people in the room.”

“Power’s not given to you,” she added later. “AIR is not going to come to us and say ‘hey, you guys are right, you’ve been fussing a little bit, here you go.’ We’re going to have to bring it to them. While we like to be nice, what we’re here to do is protect workers.” Some of that will be voluntary and done in cooperation with businesses, especially those that do treat workers well, but “some of that will be about demanding change.”

James Browne, one of the ASRW’s organizers, noted that ignorance plays as much of a role as intent in spreading bad practices, as many owners are “old servers, they’re old chefs. They decided they were going to open their own restaurant and they just do whatever they had to do, that’s the practices they had to enforce. They don’t know any better.”

“This is why it’s important for restaurant workers to start organizing, especially in this town because what we do is we compete with each other for favor with our bosses,” Meath noted, while “tons of illegal things have become industry standard.”

“It’s really common for servers to work off the clock because you’re not making your money off $2.13, you’re making your money off the tips,” she said. “So if another server says ‘wait a minute, I want to be paid for that,’ they’re just not scheduled for those overtime shifts because someone else is willing to work off the clock. That’s why we need to organize and unite together and say ‘look, this is illegal.’”

Moving forward

Since the February workshop, the ASRW has established an anonymous grievance form on its website.

“We have no legal authority, but we can put them in touch with someone that can help,” Todd says.

ASRW was also featured in a recent Mountain Xpress guide and due to the increased attention from multiple quarters, Todd says, more people than before are interested in helping the organization as it heads towards its first anniversary.

This coming Monday, March 23, they’ll hold an open membership meeting at 4 p.m. at the French Broad Chocolate Lounge to plan for further organizing, launching a campaign for an employee handbook in every restaurant containing information detailing workers’ rights under the current law and responding to the concerns raised in the workshop.

Todd still describes “awareness” as the biggest hurdle the organization faces, ranging from making workers more aware of their rights and the need to organize to making businesses aware of the law and making the pubic aware of the realities Asheville’s restaurant workers face.

“We’re going to be about gaining more membership, gaining more awareness and building alliances with other advocacy groups,” she says. “This is bound to be the biggest tourist season Asheville has seen, and we continue to find power and gain our voice.”

The Asheville Blade is entirely funded by its readers. If you like our work, donate directly to us on Patreon. Questions? Comments? Email us.