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Restaurant servers, approximately 66% female and overwhelmingly low-income, are the last people who need a pay cut. That is one reason why Gov. Ned Lamont was right to veto HB 5001, which would have done exactly that.
As a legal aid lawyer who has represented hundreds of low-wage restaurant workers over the last decade, I would like to explain what I mean. To understand how HB 5001 would cut server pay, you need to understand our wage laws. Both the federal government and the state of Connecticut have enacted laws to protect wage-earning workers from extreme forms of exploitation.
For example, employers cannot pay most workers less than the minimum wage, less than time-and-a-half for hours over forty, or less than they promise. Furthermore, both state and federal laws require employers to keep track of employee hours and pay. Without employer records, these laws would be impossible to enforce with any accuracy, with each case becoming a matter of competing recollections. When employers do not keep a complete set of records, courts are required to rely on a reasonable estimate provided by the workers themselves. This incentivizes employers to follow the law and pay workers what they legally owe.
These laws are especially important in the restaurant industry, in which illegal underpayment of wages, what we call wage theft, is rampant In the most recent (2010–2012) compliance sweep of nearly 9,000 full-service restaurants by the U.S. Department of Labor’s Wage and Hour Division (WHD), 83.8 percent of investigated restaurants had some type of violation.
If it became law, HB 5001 would remove the employer obligation to keep complete and accurate records for servers.
For decades, the law has allowed employers to pay servers less than the minimum wage for time spent waiting tables, so long as they pay the servers at least the full minimum wage for non-service work. As part of the deal, employers have had to keep records of that time, and segregate out one category from another. HB 5001 would immediately, and perhaps illegally, strike down that regulation, allowing employers to stop maintaining complete and accurate records. The law protecting server wages will become unenforceable, and many more people will be paid a sub-minimum wage for working in kitchens, cleaning bathrooms, stocking supplies, and closing down restaurants.
Ominously, the Department of Labor would then be required to “consult with representatives of the restaurant industry” prior to issuing a notice to also completely revise all of its tip-related regulations. Are servers invited to that meeting?
There are places, like California, in which all servers receive at least the minimum wage for all the work they do. If servers had been included in Connecticut’s minimum wage increase, thousands of women and men would have benefited. That did not happen. But it is almost literally the very least we can do to protect existing wage protections for our Connecticut friends and neighbors trying to make a living by waiting tables. Lamont was right to veto HB 5001.
James Bhandary-Alexander is an attorney at New Haven Legal Assistance and a Visiting Clinical Lecturer in Law at the Yale Law School.
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