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

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.

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.

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.

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.