On March 17, Marcelino Napolina was told by his manager that the restaurant he worked at as a chef for five years was closing. The closure, like many of the surrounding restaurants in Midtown Manhattan, was due to the coronavirus. When Napolina asked when his check for the last few weeks would come in, he was told “soon.”
One week later, Napolina learned he wouldn’t be paid until the restaurant reopened. He has two kids, and he says over video chat through a translator that he’s afraid to go back to work because he doesn’t know if he will be paid or not. As of early June, Napolina is still waiting for payment for work he did months ago.
There’s a general lack of good data and documentation across the board for wage theft in restaurants. This makes it hard to understand for people who want to help. It also makes it difficult for workers seeking restitution to know where to turn.
Restaurant workers have long faced various forms of wage theft, including not being paid and being denied paid time off or overtime pay. They are sometimes misclassified as independent contractors, paid a subminimum wage or lower-than-promised daily rate, and made to work off the clock. Now, as restaurants around the country struggle to survive, workers are being put at even greater risk.
“Workers being desperate and hungry and just wanting a job makes them powerless when it comes to fighting for their rights,” says Ligia Guallpa, executive director of the Worker’s Justice Project. “Immigrant workers in particular, and every worker who is on the front lines, could be potentially experiencing wage theft in one form or another.”
Even before the pandemic, restaurant workers were often put in precarious situations by widespread wage theft. A 2017 report from the Economic Policy Institute found that millions of workers lose around a quarter of their earned wages each year due to wage theft. Seventeen percent of low-wage workers are impacted by minimum wage violations, and in the worst states, Pennsylvania and Texas, the average victim is cheated out of more than 30 percent of what they’re owed. A New York Times op-ed stated that 84 percent of all full-service restaurants violated labor standards between 2010 and 2012.
Class action settlements by the U.S. Department of Labor have resulted in billions being paid back to workers, but as another 2017 report by the EPI states, “that’s just a drop in the bucket” compared to what has been taken.
“Restaurant work is overwhelmingly low-wage work, and in the low-wage workforce you have a lot of folks with very little bargaining power,” says David Cooper, the deputy director of EPI’s Economic Analysis and Research Network and an author of its wage theft studies. “Right now we know that there aren’t restaurant jobs available, that there are a lot of folks in the service industry who are forced out of work, and so there’s a glut of potential workers for employers in those industries. And that means that workers are going to have fewer options and have less of a voice if their employer starts cheating them.”
Another big risk, Cooper says, is that more workers will be misclassified as independent contractors. Unlike employees, independent contractors don’t receive benefits or have payment protections. They’re also ineligible for official unemployment insurance when they lose their job.
“Unfortunately in this current moment, more people may be willing to accept that sort of arrangement simply because they don’t have other options,” Cooper says.
There’s a general lack of good data and documentation across the board for wage theft in restaurants. This makes it hard to understand for people who want to help. It also makes it difficult for workers seeking restitution to know where to turn.
The Wage and Hour Division of the U.S. Department of Labor is in charge of handling federal wage theft cases, and some states have similar bureaus. But several of these state-level agencies have been eliminated—Florida disbanded its Department of Labor in 2003—leaving many labor disputes to be handled by an overwhelmed U.S. Department of Labor. This means that, as cases increase during and after the pandemic, there will be fewer public sector workers to fight for those whose wages are being stolen.
“I can see states saying, ‘Look, we don’t have the funds to keep wage and hour investigators on staff,’” Cooper says. “And so you’re going to see less oversight simply because states will say this is not something we want to prioritize at the current moment.”
Guallpa of the Worker’s Justice Project is worried that it may take longer than ever to get wage theft cases resolved. In normal times, some of these cases could take as long as five years. Sometimes workers can receive back payment through private litigation when state or federal agencies don’t help, but that typically only happens with large class-action lawsuits.
“It’s difficult now because we sometimes went to the business to take action with the workers and protest, but now we can not do that,” says Glendy Tsitouras, an organizer with the Worker’s Justice Project. This group and others continue to pressure employers to pay fair wages by filing wage theft claims with the U.S. Department of Labor.
Cooper sees at least a few reasons to be optimistic. State and local attorney generals have started to focus on wage and hour issues in recent years in places like Washington, D.C., Seattle, and Minnesota. New York City promised $2 million in restaurant aid to businesses that pay $20 an hour to tipped workers for its new Restaurant Revitalization program.
But many workers are still struggling. Napolina and a few of his past coworkers confronted the restaurant that withheld their pay for completed work. Two of his coworkers received their paychecks, but Napolina is still waiting.
“Many restaurants, it’s normal for them to say, ‘I won’t pay you,’ or, ‘I will take advantage of you,’” Napolina says. “People should contact organizations like Worker’s Justice, or any organization that they can.”
He adds that the collective voice of workers is one way people can hold those perpetrating wage theft accountable.
“People aren’t alone,” Napolina says. “Everybody has rights, it doesn’t matter if they don’t have documents, they still have rights. They have to report all those cases, if they don’t report, then those companies are going to continue doing the same thing. Don’t be afraid to speak out.”