Workers alleging wage theft say picketing the surest path to justice

NEW YORK — On a recent early winter evening, a group of restaurant workers gathered at a sixth floor apartment belonging to Maggie Andres, a 42-year-old immigrant from Mexico. Christmas decorations hung from the walls and ceiling of the small but cozy apartment, and seasonal music played in the background. Despite the festive atmosphere, the gathering’s purpose — to plan pickets outside their workplace — was anything but.

Since April 2014, these 14 workers, primarily immigrants, have been engaged in a campaign protesting wage theft against their employer at Liberato restaurant on Jerome Avenue in the Bronx borough of New York City. Throughout, they have continued to work their regular shifts — sometimes up to 12 hours at a time. But during their off-hours, they have been picketing outside the restaurant and sometimes even around their managers’ homes.

“When you pass a flier outside the workplace, the boss is not too happy to see you when you show up on the job,” Andres said. “But we will not stop the protest until they respect our rights.”

On Nov. 10 the workers called off direct actions against their employer because both parties’ representatives entered court-ordered mediation. But Andres, who said she earns just $4.44 an hour for a nontipped position (a rate several dollars shy of the state-mandated minimum hourly wage of $8.00), said the workers returned to the picket line on Dec. 10 because they believe the restaurant managers were not negotiating openly or fairly. Liberato’s owners and managers did not respond to requests for comment.

Over the past several years, there have been many calls across the country to raise minimum wage rates to a level that would cover basic living costs. Several states, including New York, have raised their minimum hourly rates to help struggling workers. But in addition to workers continuing to have a hard time getting by on the minimum wage, there are many who are forced to subsist on even lower incomes than the law requires. 

A landmark 2008 National Employment Law Project (NELP) survey of workers in low-wage industries in the three largest cities in the U.S. — Los Angeles, Chicago and New York — found wage theft was “severe and widespread.” Over one-quarter of workers surveyed were paid less than the minimum wage, and over three-quarters reported overtime violations. Although labor law, specifically the Fair Labor Standard Act, technically allows employees to recover stolen wages and protects them against retaliation for organizing or speaking up, workers and their advocates say getting workplace justice requires nothing short of a long-term commitment to the picket line.

“The truth is that the deck is stacked against workers,” says Saru Jayaraman, a co-founder and co-director of the Restaurant Opportunity Center United (ROC), an organization formed shortly after 9/11 to help stop wage theft and other abuses rampant in the restaurant industry. “It’s far too easy for employers to circumvent the laws as long as they can intimidate workers into not speaking out.”

Since the ROC was founded, the organization has helped workers recover almost $10 million in lost wages — their most recent victory being a $1.15 million settlement with the Del Posto restaurant, owned by celebrity chef Mario Batali.

But each of these victories came about with workers organizing before they lodged complaints with the U.S. Department of Labor and participating in direct actions as necessary until the issues were resolved. And according to Jayaraman, workers often have to wait years for settlements and usually end up with far less than they are owed. “It’s like having your purse stolen,” she said, “and five years later, after a backbreaking campaign, a judge might rule that you be given back half the contents.” 

In a statement to Al Jazeera, department spokesman Edmund Fitzgerald said the length of investigations and resolutions "vary according to the individual circumstances of each case." It also cited some $1.3 billion found in back wages that had been returned to 270,000 workers "including $79 million in low-wage industries for 109,000 workers." 

But part of the perceived problem is that the department's wage and hour division has just over 1,000 investigators to oversee about 7.3 million businesses. The division’s budget is set to increase by $41 million in 2015, which will allow for 300 additional investigators to be hired. But for now, some exploited workers feel they have little choice but to take to the picket line — a nerve-racking prospect for any vulnerable employee. For foreign-born workers, who, according to the NELP survey, are nearly twice as likely as their U.S.-born counterparts to experience wage theft, challenging an employer who can threaten them with contacting immigration authorities is even more daunting.

Before the workers at Liberato — most of whom are foreign-born — launched their campaign, several of them, including Andres and her former colleague Oscar Ramirez, underwent training at the Leadership Institute, run by the Laundry Workers Center (LWC). The LWC was formed in 2011 to inform immigrant workers of their rights and how to ensure them. “One of the key things we teach every worker who passes through the training,” said Virgilio Aran, an LWC co-founder and its executive director, “is that they must commit themselves to a long struggle when they launch a campaign. Unscrupulous employers will use every trick in the book to suppress workers’ rights, and they must be prepared for that.”   

According to the complaint filed on behalf of the Liberato workers, when Ramirez, who was earning $6 an hour for a nontipped position and working up to 80 hours a week with no overtime pay, approached the manager in December 2013 on behalf of the workers to ask that they be paid the legally required minimum, he was fired. The complaint also details a potential retaliation against at least one other worker, who had his hours reduced, and Andres said she has been written up several times by her bosses for petty reasons.

In 2011, two years before Ramirez was terminated, New York state implemented the Wage Theft Prevention Act, with strengthened protections for workers and enhanced rules against retaliation, but so far, he said, these enhanced protections have done little to help him.

Still, the workers have been inspired to keep going largely because of the unprecedented success of a campaign launched in January 2012 by mostly foreign-born workers at the Hot & Crusty Bakery on Manhattan’s Upper East Side. These workers went from experiencing severe wage violations and other abuses to having a union hiring hall, across-the-board pay increases and benefits. It was a groundbreaking victory but one that involved an epic struggle to achieve.

According to Mahoma López, who is the president of the Hot & Crusty Workers Association, when he initially filed a wage theft complaint on behalf of all his colleagues in August of 2011, the Labor Department didn’t respond for months and never showed up to investigate. He and some other workers trained with the LWC’s leadership institute and began their campaign in January of 2012. By May of that year, they achieved union recognition; by July they were awarded an economic settlement; in August the bakery owners announced they were closing down.

“It was a classic union-busting tactic,” López said, “but we didn’t let them get away with it.” The workers, who were joined by Occupy Wall Street activists, community leaders, labor leaders, faculty members and students from nearby Hunter College and LWC members, maintained a 12-hour-a-day picket in two shifts for 55 straight days until the new owners signed an accord agreeing to recognize the union and honor the contract the workers had negotiated.

“The reason for the success is that the workers didn’t solely rely on the law,” said Sándor John, an associate professor at Hunter College who followed the campaign closely. “They understood it, but they didn’t sit back and wait for the laws to work for them.” But, he added, the onus should not be on vulnerable workers to fight for what is their legal right — a fair wage and benefits.

Still, for now, the combination of understanding the laws and being willing to fight for their enforcement is reaping dividends for workers across the country, documented or otherwise. On Dec. 15 a group of about 280 workers — mostly Chinese immigrants — at the Yank Sing dim sum restaurant chain in San Francisco won a landmark $4 million settlement and new labor standards and benefits through a combination of negotiation and direct action.

For many workers, the struggle isn’t just about recovering lost wages; there’s dignity to be restored too.

“At first we were very scared to do this,” Andres said, as she prepared to return to the picket line in December when talks stalled. “We thought we had to stay silent, to stay hidden. But now we are very enthusiastic.”