“If I want to be paid, I have to endure this”: Why restaurant workers say the tip credit is a civil rights issue

Lindsay Brownstein

Tricia Vuong

Pulling restaurant workers out of poverty is relatively easy—raise wages. But ending sexual harassment is trickier. Could tips be the problem?

On New Year’s Eve 2019, New York’s Democratic Governor Andrew Cuomo made a big move for workers. After years of consideration, he eliminated the tip credit—a system that allows some workers to earn a reduced base wage, as long as gratuities bring them up to their city or state’s legal minimum—for 70,000 workers in nail salons, car washes, and other industries. The move was roundly cheered by labor advocates. 

The governor’s office said the effort would improve the lives of working-class New Yorkers. But the big surprise? He didn’t end the tip credit for the hospitality industry—by far the largest sector of the tipped workforce, representing tens of thousands more people in the Empire State, and 70 percent of tipped workers nationwide.

On Monday, around 60 restaurant workers and supporters took to the streets of New York City to protest not just their omission from the change, but also what they say is the real reason tipped work is so precarious: relying on tips as a primary income source increases the risk that workers will tolerate sexual harassment and misconduct. 

restaurant workers and supporters outside Cuomo's office

Restaurant workers and supporters outside Gov. Cuomo’s office. The rally was organized by One Billion Rising and One Fair Wage

Tricia Vuong

Clad in pink beanies and aprons, and toting signs proclaiming “we are not on the menu,” the workers amassed in front of Cuomo’s Manhattan office to argue that the state’s lower minimum wage for servers, bartenders, bussers and baristas—between $4 and $5 less than their counterparts in other, non-tipped industries, based on where they work—is a civil rights issue. Without a robust base pay, they must depend on tips, which promotes a culture of mistreatment they must silently suffer, they say. That culture can include grabbing, catcalling, and inappropriate propositions from customers and managers alike.

“It’s that imbalance of power that makes people accept conditions just for the way they are. You take what you get when you’re paid that low,” says Nikki Cole, a 21-year veteran of the hospitality industry in Washington, D.C. Cole is now the national policy director of One Fair Wage, a campaign to end the sub-minimum wage system nationally, which organized the protest.

Nikki Cole

Nikki Cole is the national policy director of One Fair Wage

Tricia Vuong

As part of the action, trainers from the Center for Anti-Violence Education, a Brooklyn-based nonprofit that hosts self-defense classes for women and gender non-conforming people, led a public training on Monday—showing workers, mostly women, how to shrug off unwanted touches, how to say no, and make palm strikes to defend themselves against violent attacks. Why self-defense? Because as long as restaurant workers rely on tips, Cole and other advocates say, they will most certainly have occasion to defend themselves from inappropriate behavior in the workplace. 

Making a direct connection between tipped work and worker safety is one of the more nuanced aspects of the minimum-wage debate, and it can require some explanation—at least to policymakers. Advocates say the path to lifting restaurant workers, among the country’s very lowest earners, out of poverty is pretty straightforward: pass laws that guarantee all workers a living wage. 

But protecting them from offensive remarks, unwelcome advances, requests for sexual favors, or other physical or verbal abuse, whether from a boss or a customer, is trickier. Federal laws against sexual harassment, while clear, aren’t always followed on the ground. In the United States, far more claims are filed with the Equal Employment Opportunity Commission (EEOC) from the restaurant industry than any other.

“If somebody makes an inappropriate comment to you, or if somebody asks you for your phone number, or if somebody touches you inappropriately, those are things that, if you speak up, could potentially affect your income.”

To change that seemingly endemic culture in restaurants, worker advocates are recasting the tip debate as a way in.

“If somebody makes an inappropriate comment to you, or if somebody asks you for your phone number, or if somebody touches you inappropriately, those are things that, if you speak up, could potentially affect your income. You are stuck in this predicament,” says Gemma Rossi, a One Fair Wage organizer at the protest. She says she relied on tips as a 15-year veteran of New York City restaurants, most recently at Brooklyn’s Caracas Arepa Bar, before quitting in 2017. “If I want to be paid, I have to endure this.”

In New York, servers, bussers, bartenders, and baristas start at cash wages that range from $7.85 to $10 an hour, based on where they work. Meanwhile, their non-tipped counterparts, like cooks and dishwashers, start between $11.80 and $15. Nationwide, only seven states, and the city of Flagstaff, Arizona, have done away with this two-tiered system.

Gemma Rossi

Tricia Vuong

Gemma Rossi relied on tips as a 15-year veteran of New York City restaurants

It’s not just that workers like Rossi are subject to mistreatment from diners. Restaurant servers who get by on gratuities are also vulnerable to harassment from their managers, who can affect their take-home pay by scheduling them for a lucrative weekend shift, or punishing them with a paltry weekday one. Advocates say putting restaurant workers on the same minimum wage as everyone else could end that exploitation.

“It doesn’t necessarily stop people from engaging in bad behavior, but if a worker knows they are going to have a solid paycheck at the end of the week, regardless of what they receive in tips, it gives them a bit of a power to stand up,” says David Cooper, an economist with the Economic Policy Insitute, a think tank that advocates for liberal economic policy. Cooper’s research has found that in states with a universal minimum wage, tipped workers have higher take-home pay, and restaurants still operate successfully. “They may feel more empowered to say no to a manager who may be behaving badly towards them, even if that means they get a bad schedule for next week. It just creates a little more stability for them, so they feel like they don’t have to rely on tips for the bulk of their income.”

At one point, Governor Cuomo may have agreed. In late 2017, after the #MeToo movement took off and high-profile harassment cases were making headlines, he proposed eliminating the sub-minumum wage for tipped workers, including those in the hospitality industry. His office cited a report from Restaurant Opportunities Center (ROC) United, a New York City-based nonprofit that advocates for restaurant workers and founded the One Fair Wage campaign, that found workers in states with a universal minimum wage experienced sexual harassment at half the rate of workers who didn’t. 

Months later, Cuomo’s Department of Labor Commissioner, Roberta Reardon, recommended the move, saying it would reduce pressures that lead to workplace harassment. Reardon conducted seven public hearings on the issue in 2018, which focused primarily on the plights of workers in restaurants, car washes, and nail salons, culminating in a raucous, eight-hour hearing held in Manhattan in June.

“The point here isn’t that sexual harassment isn’t a problem, the point is that sexual harassment has little to do with how a state treats serving’s tipping income.”

Finally, in December 2019, the department released a report that recommended ending the sub-minimum wage for workers only in “miscellaneous industries,” with scant reference to the hospitality industry, which had dominated the hearings and represents the vast majority of tipped workers in New York state.

Cuomo’s office did not respond on the record to requests for comment, and deferred to the Department of Labor. In a statement emailed to The Counter without attribution, the department said it omitted restaurant workers from the recommendations after the “overwhelming majority” of the 3,100 individuals who testified at the hearings came out against the change. The department also says it received over 3,000 written comments, and many expressed a similar view.

One such person was Michael Saltsman, managing director of the Employment Policies Institute, a Washington, D.C.-based political advocacy group that helped overturn a ballot initiative to end the sub-minimum wage for servers, bussers, and bartenders in the Capitol two years ago. At a hearing I attended on Long Island, New York in 2018, Saltsman said there wasn’t a meaningful relationship between a lower minimum wage and harassment, and cited EEOC records that showed equal rates of restaurant harassment charges in states with and without a universal minimum wage. “The point here isn’t that sexual harassment isn’t a problem, the point is that sexual harassment has little to do with how a state treats servers’ tipped income,” he said.

That opposing view is not stopping the activists. One Fair Wage announced another public self-defense on February 24 in Albany, on the steps of the state capital. The campaign will join IMPAC, a New York City-based political action committee that focuses on sexual violence and harassment, to more effectively lobby lawmakers. 

Sam Bloch is a contributing writer for The Counter, where he covers business, environment and culture. He has also written for The New York Times, L.A. Weekly, Places Journal, Art in America and other publications, and is currently working on his first book, a work of narrative nonfiction about shade, for Random House.