We can all agree, COVID has made 2020 quite a difficult adventure for most of us. We can’t fully grasp its total effect and we’re desperate for stories of hope.
In this article series, we’ll uncover how certain private sectors have been impacted and uncover ordinary heroes who have transformed this unknown landscape into an opportunity to spread hope and offer support. First stop, the restaurant industry!
Concerns Among Restaurant Employees
Restaurants have been the hardest hit during the pandemic, accounting for the highest number of business closures. We just aren’t eating out as often. Despite the decline in patronage, restaurant employees who have returned to work face mounting health concerns as their exposure risks increase the more time they spend on the clock.
Most states designate restaurant workers as at-will employees. This means they can resign or be fired at any time for any reason. Restaurant workers still receive the benefit of federal anti-discrimination laws prohibiting employers from lay-offs on such bases as race, gender, age, sexual orientation, etc. However, upon reopening, employers who chose not to rehire employees affected by temporary closures were legally within their right to do so.
Of those rehired, health and safety weren’t the only concerns. According to a recent poll of restaurant employees 72% cite securing a higher hourly wage as a top priority. Workers are simply less inclined to rely on the kindness of strangers or unemployment benefits to make ends meet.
Of those who had a job to return to, how are concerns of health and safety and earning potential being addressed? We spoke with Danny Katz, Senior Counsel, and Julia Saltzman, Workers Justice Advocate, with the Washington Lawyers’ Committee to uncover the answer.
Health and Safety
Katz explained that workers are leading the charge in holding employers accountable for ensuring COVID health and safety measures are followed. In late May, the Center for Disease Control (CDC) released limited guidelines for restaurants and bars as reopening began. The guidelines left a great deal up to state officials and private employers. The CDC has since released two revisions each time making it clear that the guidelines are supplemental to state and local laws. As guidelines, they provide no legally enforceable protections.
Some workers returning to find employers lax around COVID precautions turned to The Occupational Safety and Health Administration (OSHA), the federal entity responsible for ensuring safe and healthy working conditions. Unfortunately, OSHA has remained “largely absent in conducting investigations and following up on complaints from workers in regard to COVID protections on the job” reports Saltzman.
Thus, workers have resolved to organize themselves. McDonald’s employees, for example, have organized strikes, walk-outs, and even brought a lawsuit citing various violations which put them at higher risk of infection. “The clearest example of workers coming together to successfully demand protections can be seen in Virginia,” notes Katz. Frontline workers partnering with organizations such as the Legal Aid Justice Center, Virginia Organizing and the Virginia chapter of The American Federation of Labor circulated petitions, provided testimony, and persisted in other advocacy efforts. “As a result,” states Katz “Virginia adopted one of the first and broadest state regulations to protect people at work.” The trend of valuing workers’ safety continued as over 14 states adopted similar protections!
Earnings and Unemployment
Restaurant employees are considered tipped workers and thus receive a lower hourly wage ranging from $2.13-$13 depending on their state’s minimum cash wage laws. It is expected that a tipped worker will earn at least the federal minimum wage (or more) when tips are accounted for. In fact, federal law requires employers make up the difference should tips earned not be sufficient to meet the statutory minimum.
The Workers’ Rights Clinic arm of the Washington Lawyers’ Committee fields employment related calls from the local community. Both Katz and Saltzman agree the Clinic has seen an uptick in calls regarding receipt of unemployment benefits for which workers rightfully qualify.
Caution in returning to a public facing position during a national pandemic is one major cause of employees losing unemployment benefits. “Unemployment compensation claims are very fact specific and difficult [to address] because everyone has justified concerns around prioritizing health and safety,” notes Katz. “It’s easier to find grounds to protest the loss of unemployment wages for an employee who has gone back to work and reports the employer not following COVID safety precautions,” he continues. Saltzman adds that employees with pre-existing conditions have different legal protections and should contact an organization such as theirs to determine how to maintain their benefits if returning to work isn’t an option.
Saltzman points to the legislative changes made to the Federal Family Medical Leave Act (FFMLA) which went into effect April 1st as another example of good news. Under the new provisions, “employers are required to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19,” according to the Department of Labor. “This is a federal protection for people [out of work because they are] experiencing COVID or COVID like symptoms, providing childcare if their provider is closed due to COVID, or quarantining after coming into contact with someone diagnosed with COVID,” cites Saltzman. “It’s created a national dialogue around providing every working person paid medical leave,” she explains. In the long run, Katz hopes to see the conversation continue and additional legislation passed to strengthen workers’ rights.
Some Really Good News
Despite the devastation the restaurant industry has endured due to COVID there are some shining examples of workers leading the charge to help each other. Sophia Miyoshi is a Lead Organizer with the D.C. chapter of the Restaurant Workers Opportunity Center (ROC), a workers’ centered advocacy nonprofit that assists restaurant workers in the District of Columbia. With the help of ROC, workers set up a series of social aid networks deemed ‘mutual aid pods’ throughout the city. Restaurant workers began collecting donations of food, diapers, and money to help support co-workers and friends in the industry.
Miyoshi helped engage workers in advocacy efforts to receive a city budget allocation for excluded workers as well. Excluded workers include people who work in an industry for which there is no proper work history, those who are paid cash, or who undocumented and therefore ineligible for unemployment benefits. “Through direct action led by restaurant and excluded workers including protests and petitions, the D.C. Council allocated $9M to provide much needed funds for excluded workers in the city who have gone eight months without aid,” Miyoshi exclaims. The organization continues to help workers organize and most recently hosted a virtual ‘party’ to gather workers’ stories around the topic of unemployment to be presented in testimony before the Council later this month.