Restaurant employees across the nation are facing a serious threat to their wages, pushed by the legal arm of the National Restaurant Association, or “the other NRA.”
Just as the National Rifle Association is a front group for weapons manufacturers –they are majority-funded by them, not concerned citizens – the National Restaurant Association is a front group for restaurant owners. They routinely oppose policies that would help restaurant workers in order to save profits, and their current lawsuit endangers the wages of over 4 million tipped workers.
Famously, businesses in the U.S. are allowed to pay tipped workers less than minimum wage, as low as $2.13/hr., so long as tips account for the difference (in theory). This “discount” that the government allows is called the tip credit. But servers have two roles: 1) as servers, which qualifies as tipped labor, and 2) as cleaners and preparers – for example: refilling saltshakers and vacuuming after guests – which does not count as tipped labor.
In 2012, the Department of Labor added a regulation to mitigate wage theft, called the 80/20 rule: Businesses may only utilize the tip credit against workers who spend 20 percent or less of their time in untipped labor. Now, the NRA’s “Restaurant Law Center” is challenging the regulation in Restaurant Law Center v. U.S. Dept. of Labor.
Without the 80/20 rule, employers could order tipped employees to spend the majority of their time on untipped labor, while still paying them as low as $2.13/hr. This reduces their opportunity for tips, and often, the added responsibility also means more distracted service, which reduces the tips themselves.
Before this rule, tipped workers had to file complaints with the DOL and demand back pay for weeks where their tips did not reach the state minimum wage. This process is long, and for workers who live paycheck to paycheck, going months without full wages is not a feasible option. While pay dispute investigations take place, workers in NY could take home as little as $4/hr. in NYC and $2.90/hr. in New York State. For the richest country in the world, the widespread existence of poverty wages like ours in the majority of states is simply unconscionable.
Like with every other industry, restaurateurs fight against any changes that may increase expenses, no matter how small, and even when their employees’ livelihoods depend on it. The 80/20 rule, while not perfect, was meant to help ensure opportunity for tipped income. By committing to a living wage, restaurants could take credit for a major reduction in sexual harassment within the industry, as well as a substantial decrease in the amount of workers relying on government assistance – as we’ve seen in the seven states without a two-tiered wage system or “One Fair Wage” states.
Instead, the NRA will spare no expense, in the courtroom and the court of public opinion, to have their way unless political action makes it more expensive for them. The NRA and their donors are currently gambling that this fight will pay off. It is up to all of us to ensure that it does not: Demonstrations, calling representatives, speaking out against wage theft, boycotts, and taking the fight to advertisers are but some of our strategies. Collective liberation, whether as a marginalized employee or as an ally in solidarity, depends on us taking some form of action – as always.
Pierce Delahunt holds a M.Ed. from the Institute for Humane Education. His research was a study of activist-education programs throughout the country. He is a member of Patriotic Millionaires and Resource Generation. He has worked with Youth Empowered Action, an activist-education summer camp, since 2014.