Tipping points

Many of the comforting little certainties of everyday life that we could heretofore take for granted are being questioned and rent asunder. But one outpost of stability remains: every diner in the metropolitan area will serve split pea soup every Thursday and seafood bisque alternate Fridays.  

Civility has been largely upended in public debate. Latter-day Einsatzgruppen cheerleaders on the geopolitical stage and college campuses have revived the relevancy of the famous saying about being doomed to repeat history. Absolute values that gave civilization at least intermittent cohesion and promise are being revisited and relativized. 

We are beleaguered by a million disincentives to serenity from sunrise to sunset. And so, we turn our lonely eyes to the soup delivery coordinators. They are masters of logistics like battlefield suppliers. 

Soup is the ordnance of those of us who are past their prime and look to the little things of life, like Early Bird specials. For us, matzoh ball soup is a motivation to wake up each day and crumble our crackers as society crumbles.  

But let's not romanticize these restaurants. The way these businesses are often operated reveals much of what makes the hospitality industry the poster child of workplace exploitation.  

To a large degree, management is simply taking advantage of the Fair Labor Standards Act, which like the Inflation Reduction Act, is a ludicrous and ironic misnomer that mocks and belies its name. The FLSA legitimizes and practically mandates the cheating of workers, because tipped workers, such as waiters, are exempted from minimum wage mandates. 

According to ny.eater.com, New York places "a larger burden on the consumer, rather than on restaurant owners … [w]hile the state budget specifically bullets out the wage schedules and pay rates for the full minimum, the law buries the tipped minimum language in a twelve line section that reads like a messy, marked up resolution from a high school Model UN conference. … The tipped rates are not expressed as actual dollar-based wages in the budget, but rather as fractions of the regular wage.”

A few years ago, when tipped workers in New York became entitled to a full minimum wage, food workers "successfully beat back their inclusion because they feared a change would lead to fewer tips,” the Democrat & Chronicle reported.

Although employers are required to keep records of tips, the tracking, "through a mix of their own accounting, credit card receipts and self-reporting from staff members" is “murky,” according to The New York Times. Prominent attorney Ryan Stygar concludes that the laws for tipped workers are "so bizarre and obscure" that, The Times reported, “employers acting in good faith can still make legal mistakes.”

And it's a safe bet that they often do so. By design with the cover of calling it an honorable error if caught.

When employers make a bundle, they are touted as exemplars of a free and robust economic system who should be unapologetic of the success that they achieved by hard work. But if a tipped worker makes a penny above bargain basement wages, it is treated as windfall profits raked in by finagling and gaming the system.

Restaurant owners can eke out every ounce of worker productivity without it being on their dime. In a broader sense of a "contract,” even in the absence of a written agreement, there is an implicit "rights and responsibility" relationship that has traditionally been expected and practiced between bosses and their working stiffs. But when it comes to restaurants, you can pour boiling lentil soup on that standard. These particular regulations are, in effect, a conspiracy against tipped workers.  

The rules are an anomaly, but their wider application is a wet dream of management leeches.

New York Labor Law says that as long as tipped employees make the equivalent of a minimum wage, they cannot be denied being paid a minimum wage in the first place. And according to Lipsky Lowe, an employment law firm, "If the credit card company charges a 3 percent fee, the employer could legally reduce the employee's tip by 3 percent as well.”

They can take it out of the hide of workers whose wages are skin and bones.

The regulations governing wages for tipped workers are dense and convoluted and overall suited to the interests of management. There is "tip pooling" and other expedients to justify minimum wage restrictions. Lipsky Lowe notes that employers can determine how the pooled tips are divided among tip-eligible employers, but can "forfeit the right to take the tip credit" if they allow cooks, dishwashers and managers to be part of the tip pool.

Employers must distribute the tip pool to the waiters and cannot withhold it for themselves.  However, "employees who have limited supervisory duties may participate in the pool if providing personal service to patrons is a regular or principal part of their duties.”

"Limited" and "regular" are words with built-in wiggle room for bosses.

As long as a worker is entitled to the legal minimum or its equivalent by other means of compensation, should it make a difference? Isn't it a matter of quibbling over "six or one or a half-dozen of the other"? A guarantee is a guarantee, is it not?

It is not.

Employees in the "tipping pool" are still being bilked. The machinations used by employers to rip off their tipped workers are legion. Bosses are on the "honor system" to disperse tips honestly, but workers who have doubts and raise questions are risking career suicide. They may win the battle to vocally exercise their rights, but it will be a hollow victory when they are punished by management's countless avenues of retribution.

Many employers are habitual violators. Attorney Emre Polat cites failure to pay overtime rates beyond 40 hours a week, siphoning tips to pay off non-service and kitchen staff, non-payment of trainees, charging workers for breakages, unpaid bills of customers and maintenance of uniforms.

Wage slavery is a core tenet of the hospitality industry generally. The rules that allow tipped employees to be paid sub-minimum wages, as long as the difference is made up for in customer gratuities, have the effect of suppressing economic freedom to rake in a penny above the lowest nominal.

To test the cognitive function of recovering stroke patients, they should be explained New York's byzantine rules for tip pooling, tip-sharing and the rights of "directly and indirectly tipped employees" and asked to repeat it right away. If they can, they are fully rehabilitated.

A recitation of the rules defining the classification of employees and independent contractor abuse sound like a Gilbert and Sullivan patter song or a lecture from the late Professor Irwin Corey. Turns out that Donald Rumsfeld, the former secretary of defense, had a natural feel for the parameters of legally protected workers' rights and the razor-sharp definitions that advocates may use to enforce them: “As we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns — the ones we don't know we don't know.”

Regardless of immigration status, all tipped employees enjoy full legal protection to the extent that it exists and is practicable for those paid "off the books.”

The profit margin for restaurants is small, we are told. They must be scrupulously unscrupulous to survive. That includes levying a 4-percent fine on credit card purchases above the posted menu price and calling it a "cash incentive.” That doesn't bother me, except for the play on words.   

But the economic abuse of waiters, who are run ragged and often mistreated by temperamental patrons who have no other outlet in their lives to vent their frustrations, is reprehensible. Next time you frequent a diner, give your waiter a hug.  But don't let them drop the dishes.  Management may dun them as debtors until they replace those saucers with coins from their own purses.

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