County cracking down on wage theft by restaurants

SAN JOSE >> Ana would arrive before any of her co-workers at the San Jose restaurant where, as a chef, she mixed salsas and prepared tortillas well ahead of the meal rushes. Most days she would clock in at least 10 hours by the end of her shift.

The owner told her she was a good cook, but more than compliments, she wanted to be paid what she was owed.

She wasn’t. Her employer didn’t pay her all the overtime she put in, not even her lunch and rest breaks. One month, her paychecks bounced twice.

By the time she had enough of that and quit in December 2018, the restaurant owed her $13,000. With the help of a lawyer, she filed a complaint with the state Labor Commissioner’s Office.

“Restaurant owners can’t keep doing this,” said Ana, who asked that her last name not be used because she fears retribution by her former employer.

Like Ana, low-wage, mostly immigrant workers often don’t report wage theft and other labor violations out of the same fear, according to Ruth Silver-Taube, founder of the Santa Clara Wage Theft Coalition and an attorney at the Katharine and George Alexander Law Center, which offers free legal consultation to low-wage workers.

And when they do complain and the Labor Commissioner’s Office or local courts rule in their favor, many employers just ignore orders to pay, Silver-Taube said.

To change that, the Santa Clara County Office of Labor Standards Enforcement earlier this month rolled out a pilot program to expose restaurants that stiff their workers, doing so in part by identifying them in the same SCCDineOut app that lays out their food safety compliance record.

And that’s not all.

On Dec. 2, OLSE mailed courtesy notices to noncompliant restaurants in Sunnyvale, Mountain View and the 95112 and 95113 ZIP code areas of San Jose that have thus far evaded fulfilling their court-mandated payments.

OLSE will give the businesses three more warnings, which is equivalent to about a six-month grace period, before posting a red noncompliance placard in the restaurants’ windows and shuttering them for a minimum of five days or until they reach a payment agreement with the county. It estimates there are more than 600 noncompliant restaurants in the pilot areas and more than 3,000 in the county.

“For those with existing judgments, it gives them something to ponder, it gives them something to weigh: five days’ worth of closure compared to the amount of judgments owed to the worker,” OLSE Director Betty Duong said.

“When we’re engaging food retailers, we’re doing everything we can do. And we want them to know that we want to avoid a permit suspension,” Duong added.

Reported cases of unpaid wages doubled between 2014 and 2019, robbing county restaurant workers of more

than $5 million over the fiveyear period, an OLSE analysis found. Wage theft occurs when an employer fails to pay for overtime, rest breaks and minimum wage, or, in the most egregious cases, doesn’t pay at all.

Local support for the pilot program grew in part from a San Francisco Department of Public Health fact sheet that claims restaurants that commit wage theft are more likely to perform poorly in health inspections. When the Wage Theft Coalition presented that finding to the Santa Clara County Board of Supervisors and suggested health safety permits be revoked from restaurants that don’t fairly pay their employees, there was some initial hesitation, Silver-Taube said.

“It’s a little bit of a leap to health permits, so we had to convince people that there really was a correlation and also, legally, that had the power to do that,” she explained.

But the supervisors were convinced it was the right thing to do and unanimously authorized the crackdown.

Supervisor Dave Cortese, who sponsored the 2017 ordinance that created OLSE, said linking wage theft to the permit program “makes sense.”

“A healthy workplace is more than just food quality or food spoilage or people washing their hands at the right time. It’s also about making sure we’re not granting permits to people that allow them to do business in an oppressive fashion that exacerbates poverty and abuse and that’s going to affect other areas of the county,” Cortese said.

Mimi Hernandez from the LatinX Business Council, which provides free training to small Latinx-run businesses and partners with OLSE on the food permit program, calls mistreatment of workers a “silent epidemic” in the local business community.

“In this market where restaurants are competing for the same pool of very capable employees, you need to treat your employees well … if you plan on being here in the long run,” Hernandez said.

In her final month as a chef, Ana struggled to pay rent.

“This affected me so deeply that now when people offer me restaurant jobs, I’m afraid they’re just going to do the same thing that happened to me… I would go back to work for anything but in a restaurant,” she said.

Her former employer has paid off all but $2,000 of her back wages after a settlement reached at the Labor Commissioner’s Office.

She now runs a stall at a local flea market. “It’s going well and I’m my own boss,” she said.