How Restaurants Get Free Labor Out of Servers and Bartenders

By C.A. Pinkham | March 31, 2015 | 4:12pm

In Depth

Would it seem absurd to read that most restaurants in America get a significant amount of essentially free labor out of servers and bartenders for work that has nothing to do with serving or bartending? If so, it’s also such a basic, universal fact of the industry that almost no one even comments on it at this point.

Let me introduce you to the concept of side work.

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Side work is, simply put, the things you have to do after your actual service is over and you’ve stopped taking tables, but before you’re allowed to go home. A by no means exhaustive list of side work duties either I or friends have had to do in the past:

Refilling ice (or emptying out the ice tray, which is significantly more annoying)
Silverware roll-ups or napkin folds (if you’ve ever had to do an oyster fold, you know how obnoxious those can be)
Marrying and refilling ketchup bottles*
Re-setting tables
Vacuuming or sweeping the entire restaurant (or simply one’s own section)
Changing the chalkboard illustrations and marketing materials
Refilling salt, pepper, and sugar, taking out the trash
Cleaning and plastic wrapping the entire soda fountain
Lighting or extinguishing all tea candles in the restaurant
Cleaning out the entire industrial-grade coffee machine
Changing out/refilling salad dressing containers (an event which frequently leaves you smelling and occasionally looking like the Bleu Cheese Monster)
Cleaning up messes in the kitchen (usually side work for the cooks/prep cooks, but this defaults to servers in some places)
Cleaning up the bathrooms (for people in trendy areas, this frequently involves the additional danger of dealing with drug-related biohazard disasters)
Cleaning up innumerable and unspeakable bodily fluid-related disasters
Steam-cleaning and polishing wine glasses
Scrubbing out an entire walk-in freezer and chipping the ice off the floor
Re-stocking basically any product you care to name
Numerous other duties that don’t immediately come to mind (feel free to share any I’ve missed in the comments below)

Please bear in mind that side work most commonly includes many of those examples at once.

Not every restaurant is guilty of the problem to the same degree, as side work varies greatly from restaurant to restaurant in amount as well as form. There are even theoretically restaurants that don’t involve any side work—although I’ve yet to work at any of them, I’m sure they exist somewhere. It also varies in time expenditure; at some places, it’s minimal, to the level of simply doing 50 roll-ups of silverware, which takes about 20 minutes if you’re not busting your ass. At others, however, like the diner in College Park, Maryland** where I first started waiting tables, side work could take up to two hours, which is particularly brutal if you’ve just worked a 5 PM – 3 AM shift and are expected to do so again the next day (a scenario that happened to me more than once during the three months I worked there). Though side work generally falls somewhere between those two extremes, there are technically no established legal protections to prevent side work’s harsher variants (though as we’ll see below, courts generally side with workers when this issue is actually brought to the legal arena).

I’m sure the response to this from many quarters will be “well, employees at other jobs have to do re-stocking and other assorted stuff; why should all these entitled servers and bartenders be any different?”, but the answer to that is quite simply that employees at those jobs are paid the same wage for that work as they are for any other aspect of their job. In that same vein, it’s important to note that the ethical issues with side work do not apply in states with no tipped minimum wage; obviously, at that point it’s a (relatively) fair wage for fair work, insofar as the current minimum wage can be described as “fair” for anyone.*** Side work is likewise a fair proposition at any restaurant where employees are paid a living wage, like Bar Marco in Pittsburgh, which pays its workers a salary and bans tipping. But for the vast majority of servers who work in one of the 43 states with a tipped minimum wage and/or at restaurants which cheerfully take as much advantage of them as possible, working a sizable portion of their time on the clock doing non-tipped work for $2.13/hour is both par for the course and really, really messed up.

To say this is a somewhat unethical practice is roughly equivalent to describing the Yukon in January as “a place where one should probably wear a jacket.” There can be no serious argument that is is ever fair to pay employees $2.13/hour for non-tipped work. Nevertheless, restaurants get away with it due to a combination of no explicit laws governing the practice and the general acceptance of servers and bartenders that it’s just a fact of the business. From the outside, it seems obvious that the practice is laughably unacceptable, but when that system is all workers have ever known, it can be hard to see the forest for the trees. Moreover, even if a server or bartender knows the practice is unethical and probably illegal, the process of seeking out counsel and pursuing a suit—likely forfeiting desperately-needed wages in the interim—can be daunting enough to discourage legal action.

While some very dumb people will doubtless make the argument that “if it doesn’t add up to minimum wage, the restaurant has to make up the difference,” that’s a spurious point for two reasons: 1) most restaurants get away with not actually doing that, and far more importantly, 2) they wouldn’t even have to do it in the case of side work, because all the hours servers and bartenders work are considered tipped. What this means is, as long as the overall earnings of the server add up to the non-tipped minimum wage for all hours worked (no matter how many of those hours involve them actually doing work that results in tips), they’ll get paid the tipped minimum on all of them. There is no way to get around the fact that at that point, they are working a flat $2.13/hour with no chance to accrue additional wages during that specific time frame.

That’s what makes a lawsuit currently underway in New York State so interesting, where numerous employees are taking aim at several different locations of a chain called Dinosaur Bar-B-Que. Leave aside for a moment the fact that the lawsuit also mentions unpaid overtime (an industry lawsuit staple), failing to make up the difference for employees whose tips fall short of the minimum wage (such a common practice within the industry that many lawsuits forget to even include it), tip-sharing with the kitchen (illegal in states with a tipped minimum wage, though understandable elsewhere), and a tip-out fee going to managers for pre-booked, pre-paid parties (kind of a grey area — if a restaurant has an Events Coordinator who put the party together, they usually get a tip-out, and a good EC absolutely deserves it). We’ve seen all of those things before, highlighted in stark detail in nearly innumerable legal actions. No, where we want to direct our attention is this sentence in the above link from Syracuse.com:

It also says Dinosaur required tipped employees to spend more than 20 percent of their work day doing “side work,” which includes setting up dining areas, for which they do not get tipped. The suit says workers should be paid minimum wage for that work.

In other words, the restaurant employees are suing because they were given too much side work. This actually isn’t the first time this has happened, either, nor is it the first time companies have had to pay back wages for it. If past is prologue, it seems extremely likely that at minimum, the aptly-named Dinosaur will have to pay them a settlement. If they’re dumb enough to fight this out in court, they’ll likely lose and be forced to pay them a lot more. Dinosaur will take a hit, the employees brave enough to call them out on it will gain some measure of lost wages and dignity, and life will go on. Ho hum.

But the sad thing is, this case and those like it could and should mean so much more than that. For those who haven’t worked in the industry, side work may seem like such a minor issue compared to the myriad ethical quagmires the business presents, and on balance, it is. Side work isn’t the cause of worker mistreatment; it’s merely a symptom. But sadly, the cause—a culture that lauds economic gain at the expense of those who make such gains possible—is an incredibly difficult one to treat, particularly in a country founded in part on the principles of taking advantage of others’ hard work for little or no wages.

Eliminating the tipped minimum wage would handily solve this problem along with the more glaringly obvious issue of absurdly low wages, but thus far that’s been a difficult law to push through. The other option, thus far also difficult to achieve, would be unionization. It’s possible legislatively eliminating side work might be easier than either of those options, and could thereafter be used as a stepping stone towards restaurant labor laws with more far-reaching consequences. Until such time, however, thousands of restaurant workers will continue to perform non-tipped work for tipped wages, and most will never realize the advantage being taken of them.

* Kinja commenter Chid apparently had to deal with a wall-mounted ketchup-dispensing udder as part of this process. Chid’s adventures with the magical ketchup cow are enumerated in greater detail here.

** If you’re a UMD alum or current student, this is exactly the diner you thought of immediately.

*** It most assuredly cannot, but that’s not germane to this discussion.

Image via bonchan/Shutterstock.

Contact the author at [email protected], or on Twitter @EyePatchGuy.