Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘employment law’

For Women Restaurant Workers, Sexual Harassment Starts with the Day You’re Hired

Thursday, November 9th, 2017

Anyone who has ever scanned Craigslist for a restaurant job knows the boilerplate “will train the right person,” code for, among other things, “Be young and have a nice ass.” I have two (attractive, blonde) female colleagues who got their first serving jobs at 19 on the supposed basis of their scores on the restaurant giant Darden’s infamous personality test. The first guy who ever hired me to wait tables said he liked my writing in my personal statement.

No one is innately or instantly good at waiting tables. Training someone who has never worked in a restaurant involves several long weeks of physically and mentally exhausting serial humiliation during which time she is likely, perversely, to be the restaurant’s most expensive front-of house employee, since until she is eligible to earn tips she has to be paid the ghastly sum that is the full minimum wage. The “right person” is likely to be the target, until a new right person supplants her, of so much hostility and derision from the chefs and the cooks and the food runners and the bartenders and the managers who didn’t hire her, and the other waiters and waitresses forced to train her, that the sexual harassment that results inevitably from being hired for her looks/intangibles/etc. is likely to seem, at first anyway, like the least of her problems. At first.

The dress code at my first restaurant job consisted, for women, of a black miniskirt, ballet flats and neutral makeup during the week and black minidress, slouchy boots, red lipstick and “statement jewelry” on the weekends. For dudes, it was a black shirt and jeans at all times. None of the dudes had been hired on the basis of their potential to prove themselves “the right person”; they’d all been servers at big strip mall chains and, before that, food runners and bussers and barbacks. They had collective decades of advanced tray carrying experience on us: The youngest female server had just turned 19, the youngest male was 27, and that was a fairly standard state of affairs at restaurants willing to administer Remedial Restaurant 101 to “the right person.” It would be hard to design a context more conducive to being sexually harassed by co-workers, and indeed, like 80 percent of women restaurant workers in a 2014 Restaurant Opportunities Center United (ROC United) survey, we all were.

We experienced sexual harassment from customers, too (as did nearly 80 percent in the ROC United survey)—the entire point of making female servers dress a certain way is to entice customers, not managers or coworkers. But as in any field, it’s the harassment from bosses and superiors—the guys who decide whether you’ll be waiting on three tables or ten tonight, who can choose to help you or chastise you if the hosts stick you with five two tops all at once and you get behind, the guys you see every fucking day—that really gets to you. Even the handsiest dirty old man customer has to compete with a dozen other dinner guests for your attention, and if he’s really that creepy the hosts won’t let him sit in your section—or depending on his spending habits/status/infractions, any woman’s section—again. (Also, there’s always the chance creepy old man leaves a 40 percent tip, in which case, and depending on the infraction, he is roughly 90 percent forgiven.) 

I was fired from my first job after two weeks, when the guy who hired me went on vacation. The firing was done by a nervous-looking fellow who’d spoken all of three words to me and gave no reason at all. For months afterward, I was still fielding flirtatious texts from the fortysomething ex-Marine I’d been assigned to shadow during my brief employment. (He thought he could get me hired back.) My friend Liz, who worked for an enormous restaurant chain, survived hazing to win the “most improved server” award after a year during which she learned “to finally not suck,” but one of her managers regularly slapped her ass on the floor (even after she started whipping out her lighter and threatening to burn him whenever he approached) and another would regularly creep up and massage her shoulder blades—oh to have a nickel for every unwanted shoulder massage!—while she was ringing in orders.

And that’s par for the course at a massive publicly traded company with a huge human resources department. My current restaurant group has no HR department, despite employing close to a thousand people (among them a half dozen “guest relations” staffers whose full time job it is to pore over the responses to our incessant feedback emails for negative reviews.) The response to sexual harassment claims varies depending on who is doing the harassing and who is responding to the complaint: The chefs recently fired a cook for repeatedly cornering a cocktail waitress in the underground parking lot to ask for dates, but a food runner who complained last year of being constantly harassed for sex by an executive manager was simply transferred to another restaurant. Nor was there an HR department at Besh Hospitality Group, the 1,200-employee restaurant group helmed by Louisiana celebrity chef John Besh, until the publication last month of an expose in which 25 separate women accused the chef of fostering a Playboy Mansion-esque corporate culture and forcing himself (and inflicting what can only be described as two years of veritable sex slavery) upon a young female subordinate. I don’t want to make too much of this: “Human resources” as a field originated primarily as a union avoidance scheme; its practitioners are inherently adversarial to the interests of employees. But if nothing else, the presence of someone, anyone, devoted to the function can—maybe?—serve as a deterrent to the worst behavior, or a psychological comfort to someone who knows she is being mistreated. A union could help, but you could probably fit the number of unionized non-hotel American restaurant workers inside my restaurant.

Without any third party nominally devoted to employment law compliance, bosses operate with total impunity, as a friend of mine learned when her manager attacked her in the office when she was working as a nightclub bartender in her early twenties. “He was always known as ‘the groper’ and it was just kind of this hilarious joke,” she recalls. “He had an Asian fetish and that was a joke, too. I worked with him for two or three years and nothing happened. Then one night I needed cash in the middle of my shift, and I went into the office and he’s putting his hand up my skirt. I ran out, and after that he suddenly started acting really serious with me. One night in the middle of service, he called me into the office and showed me a video of me serving a guest, then immediately serving another and explained that I had just given a drink away without ringing it in—which was probably because she or someone in her group had a tab—but anyway, therefore I was being fired for stealing. I didn’t even argue. I just felt like I had no voice and would be forever known as ‘that girl.’”

It’s hard to say what exactly she means by “that girl.” Every restaurant is haunted by a few apocryphal tales of “that girl” who slipped on a piece of pasta while cutting in line for staff meal and successfully sued for nine months of worker’s comp, or forgot her hairnet the day the health inspector came and shut down the restaurant during service, or had some conflict with the only prep cook who could properly execute the foie gras parfait—and now we can’t eat in the back hallway/chop vegetables during staff meal/have nice things/etc. “That girl” isn’t always a girl—and the stories often have some basis in reality—but it is generally some employee whose defining quality is incompetence/disposability. Women who work in restaurants are exponentially more likely to feel acutely disposable in any given context, I think because we so often start in semi-ornamental roles, whether as barely-competent server trainees hired for our intangible qualities, or as hostesses hired to stand at the front of the restaurant and apologize profusely for the circumstances that led to all the riverside tables being occupied right now.  

A parallel, albeit more nuanced imbalance exists on the other side of the kitchen doors, where you will never, ever, ever find a woman washing dishes (typically, you will find a Latino man in trash bags doing the job) and you will virtually never find a woman grilling steaks, but you’ll find lots of women polishing glasses and arranging edible flowers on salads and piping meticulous domes and Hershey kisses and happy birthday messages out of oversized pastry bags. Women culinary workers who venture outside their assigned ghettos are often made to feel sorry they tried, via sexual assault and humiliation: A chef I know was fired from her first job in fine dining after the sous chef she’d theretofore considered a mentor shoved his crotch into her hands inside a walk-in refrigerator. She told people the story; soon after, she was fired over a small infraction—being late for a shift. She believes they feared she’d report the assault and wanted her gone.

Which brings me to a rare redeeming trait of the industry’s gender dynamics: As rampant as sexually inappropriate behavior is, there is also a severe shortage of private spaces in which that behavior has the opportunity to rise to full-fledged assault. (This is not to say assault doesn’t find places to happen: An August lawsuit detailing the “rape culture” pervading the—unionized!—Plaza Hotel described the coatroom as a go-to unsafe space for uninvited groping, and a Texas jury last year awarded $7.65 million to a teenage Chipotle employee whose manager raped her in the bathroom, the back office and by the dumpster outside in the parking lot.) There are no private offices and very few hotel suites, and the amount of time in a day the typical restaurant manager or server or even dishwasher or coat check girl can plausibly spend away from the kitchen or the floor is measured in minutes. Most importantly, the industry itself is fragmented and dispersed, its ultimate product hopelessly chained to an old-fashioned distribution system that relies on vast armies of human laborers, not an exclusive clique of “It Girl” starlets. There are thousands of chefs and restaurants with Michelin stars and James Beard awards and cookbooks and reality television appearances, and none of them can even begin to approach, even on a regional level, the influence or reach Harvey Weinstein exerted in Hollywood. That might be the biggest reason I don’t know anyone who has been seriously long-term traumatized by restaurant industry sleazebaggery the way certain journalist and media friends have been left utterly devastated by their relationships with various “predators”—no one person, in restaurants, can destroy your livelihood or render you long-term unemployable.

And yet over the long term I think all the women I know intend to lose the war of attrition with this industry. ROC United found that a third of women who had quit the restaurant industry after working in tipped positions did so because of unwanted sexual behavior. The diminishing financial returns are no longer worth the accumulated microaggressions—and it gets to the point where every friendly high-five between male colleagues in the line for staff meal feels like a tiny ulcer. I have been waiting tables for longer than I ever intended, and since graduating from the prime sexual harassment demographic, the rare lecherous remark is almost flattering. I look young enough that I should have a good five to seven years left before I find myself mysteriously demoted or taken off the schedule (the fate that tends to befall middle aged servers at Darden-owned Seasons 52, whose age discrimination case goes to trial this month.) But I still don’t make nearly as much money as male colleagues who regularly make stupid mistakes and get negative guest feedback and come to work viciously hungover—and neither do any of the female servers (save the one hypercompetitive twentysomething wunderkind who through sheer force of singleminded perfection and dogged sycophancy gets as many VIP tables as the mediocre bro types.) According to ROC United, full-time female servers make 68 cents for every dollar earned by their male counterparts.

But the most damaging legacy of our profession’s institutional sexual harassment may be the lasting perception that whatever we have achieved in the industry we owe to the fact that someone, at some point, just wanted to get in our pants.

This piece was originally published at In These Times on November 9, 2017. Reprinted with permission.

About the Author: The author works as a server in a restaurant. Ursula Buffay is a pseudonym.

Bagenstos on Employment Law and Social Equality

Wednesday, November 13th, 2013

Paul SecundaSam Bagenstos has brought to my attention his new article in the Michigan Law Review entitled: Employment Law and Social Equality.

Here is the abstract:

What is the normative justification for individual employment law? For a number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation.

Against both of these positions, this Article argues that individual employment law is best understood as advancing a particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. This Article argues that individual employment law, like employment discrimination law, is justified as preventing employers from contributing to or entrenching social status hierarchies—and that it is justifiable even if it imposes meaningful costs on employers.

This Article argues that the social equality theory can help us critique, defend, elaborate, and extend the rules of individual employment law. It illustrates this point by showing how concerns about social equality, at an inchoate level, underlie some classic arguments against employment at will. It also shows how engaging with the question of social equality can enrich analysis of a number of currently salient doctrinal issues in employment law, including questions regarding how the law should protect workers’ privacy and political speech, the proper scope of maximum-hours laws and prohibitions on retaliation, and the framework that should govern employment arbitration.

Very interesting new meta-theory on what animnates employment law. As an ERISA guy, I think Sam’s social equality theory equally applies to how the law should protect employee benefit plan participants and beneficiaries from opportunitistic behavior by plan administrators, plan sponsors, and their third party advisors and consultants.

An important new contribution to employment law theory that should be on the top of any workplace prof’s reading list.

This article was originally printed on Workplace Prof Blog on November 6, 2013.  Reprinted with permission.

About the Author: Paul Secunda is a professor of  law at Marquette University Law School.  Professor Secunda is the author of nearly three dozen books, treatises, articles, and shorter writings. He co-authored the treatise Understanding Employment Law and the case book Global Issues in Employee Benefits Law.  Professor Secunda is a frequent commentator on labor and employment law issues in the national media.  He co-edits with Rick Bales and Jeffrey Hirsch the Workplace Prof Blog, recently named one of the top law professor blogs in the country.

Same-sex spouse gets ERISA death benefit

Thursday, August 15th, 2013

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Sarah Farley had worked at a law firm where she participated in the firm’s Profit Sharing Plan – a plan qualified under the Employee Retirement Income Security Act (ERISA). The Plan provides that death benefits be paid to the participant’s “surviving Spouse.”

Sarah then married Jean Tobits in Canada. When Sarah died, both Jean and Sarah’s parents claimed the death benefits.

The dispute went to federal district court in Pennsylvania (Cozen O’Connor PC v. Tobits) where the judge had no trouble deciding that Jean was Sarah’s surviving spouse.

In United States v. Windsor (US Supreme Court 06/26/2013) the Supreme Court held that Section 3 of the Defense of Marriage Act (DOMA) – defining “spouse” as a person of the opposite sex – is unconstitutional. Therefore, since Sarah and Jean were lawfully married, and that marriage is recognized by the laws of Illinois, ERISA has to be interpreted as meaning Jean was Sarah’s spouse. And thus the law firm’s ERISA plan has to be interpreted as meaning Jean was Sarah’s spouse.

This leaves me with one huge question: Will you get the same result in every state? That seems doubtful to me. The opinion in Windsor (a 5-4 decision) relied heavily on the fact that Windsor’s same-sex marriage was recognized by the State of New York (and the Tobits marriage was recognized by the State of Illinois). As Justice Kennedy put it, “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.” So, if you’re in a state where same-sex marriages are not recognized, it may be difficult to apply the logic of the Windsor case.

Hat Tip to Mike Reilly at Lane Powell, who writes Boom: The ERISA Law Blog.

This article originally appeared on Ross Runkel Report on August 13, 2013.  Reprinted with permission

About the Author: Ross Runkel Ross Runkel is a full-time labor-management arbitrator, professor of law emeritus, and former editor of Employment Law Memo.

NLRB's Recent Significant Decisions

Thursday, January 3rd, 2013

The NLRB in the past few weeks made public a number of significant decisions, most reached in the final days of the term of Member Brian Hayes, which ended on December 16. The Board continues with three members, Chairman Mark Gaston Pearce and Members Richard F. Griffin, Jr. and Sharon Block.

The decisions touch on a variety of issues including social media postings, charter school jurisdiction, backpay awards, the chargeability of certain union lobbying expenses, and an employer’s responsibility to continue dues collection after the expiration of a contract.

Hispanics United of Buffalo
The Board found that the employer unlawfully fired five employees because of their Facebook posts and comments about a coworker who intended to complain to management about their work performance. In its analysis, the Board majority applied settled Board law to the new world of social media, finding that the Facebook conversation was concerted activity and was protected by the National Labor Relations Act. Member Hayes dissented.

Alan Ritchey, Inc.
In a unanimous decision that resolved the last of the two-member cases returned following the 2010 Supreme Court decision in New Process Steel, the Board found that where there is no collectively-bargained grievance-arbitration system in place, employers generally must give the union notice and an opportunity to bargain before imposing discipline such as a discharge or suspension on employees. Member Hayes was recused.

Latino Express
In a decision that will affect most cases in which backpay is awarded, the Board decided to require respondents to compensate employees for any extra taxes they have to pay as a result of receiving the backpay in a lump sum. The Board will also require an employer ordered to pay back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned. The Board requested briefs in this case in July 2012. Member Hayes did not participate in the case.

Chicago Mathematics & Science Academy
Rejecting the position of a teachers’ union, the Board found that it had jurisdiction over an Illinois non-profit corporation that operates a public charter school in Chicago. The non-profit was not the sort of government entity exempt from the National Labor Relations Act, the Board majority concluded, and there was no reason for the Board to decline jurisdiction. Member Hayes dissented in part.

United Nurses & Allied Professionals (Kent Hospital)
The Board, with Member Hayes dissenting, addressed several issues involving the rights of nonmember dues objectors under the Supreme Court’s Beck decision. On the main issue, the majority held that, like all other union expenses, lobbying expenses are chargeable to objectors, to the extent that they are germane to collective bargaining, contract administration, or grievance adjustment. The Board invited further briefing from interested parties on the how it should define and apply the germaneness standard in the context of lobbying activities.

WKYC-TV, Gannet Co.
Applying the general rule against unilateral employer changes in terms and conditions of employment, the Board found that an employer’s obligation to collect union dues under a check-off agreement will continue after the contract expires and before a bargaining impasse occurs or a new contract is reached. Member Hayes dissented.

This post was originally posted on LawMemo on December 21, 2012. Reprinted with Permission.

About the Author: Ross Runkel is the President and Editor of Law Memo. Ross Runkel spoke at the Washington State Bar CLE on Alternative Dispute Resolution on Arbitration: 9th Circuit and Supreme Court Update and Commentary, on September 26, 2008. He was also the lead-off speaker at the Texas District & County Attorneys Association Civil Law Seminar on Recent Trends in National Employment Law, May 16, 2007. Finally, Ross Runkel spoke at the State Bar of Texas Labor & Employment Law Section Annual Update & Skills Conference, on October 7, 2006. 

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