End the Subminimum Wage for Tipped Workers

As a tipped worker, I’m grateful for the Fair Labor Standards Act (FLSA), which prohibited many forms of child labor, established the minimum wage, and ensured that workers would be paid for overtime. But I also know the act needs dramatic improvement. While the FLSA improved working conditions and wages for millions of workers, there were also glaring missteps when it was signed into law in 1938. Tipped workers were deliberately excluded from the law’s protections. Seventy-five years later, it’s easy to draw a direct line from these legal exclusions to the wage discrimination and mistreatment I and millions of other tipped workers face today. To address the appalling rates of poverty, wage discrimination, and sexual harassment facing many workers, we must amend and improve the FLSA to include tipped workers.

The reasons tipped workers were intentionally excluded from the FLSA are straightforward and disturbing. After Emancipation, many white restaurant owners were desperate to avoid paying newly freed Black workers. They imported a well-established practice from Europe—tipping to express gratitude for a job well done—and distorted it into what we know today: tipping to supplement wage costs that should otherwise be paid by employers. In fact, in the wake of Emancipation, some restaurant owners actually charged restaurant workers for the “privilege” of being able to potentially earn tips. Eventually restaurant owners organized into a lobbying force so powerful that, in 1938, when Congress and President Roosevelt enacted the FLSA, tipped workers were among a handful of groups expressly excluded from the creation of the minimum wage. As it stands, the federal subminimum wage, which hasn’t been increased since 1991, is just $2.13 an hour. Only seven states in the country, plus the District of Columbia, have taken action to end their subminimum wages. In the face of federal exclusion and powerful lobbying efforts, the cowardice of politicians in states like New York has left millions of restaurant workers behind.

Until recently, I was a server at an Applebee’s in the Bronx in New York City. I experienced firsthand the structural injustice of the subminimum wage. There were plenty of times when I had a table with a $200 check that left a $0 tip. And I can promise it wasn’t because of bad service—customers, coworkers, and managers consistently told me I was doing a great job. Over time it became clear that most customers don’t realize that their tips aren’t just an extra reward for good service but actually make up the wages that they assumed my employer paid.

Most customers don’t realize that their tips aren’t just an extra reward for good service but actually make up the wages that they assumed my employer paid.

I recently filed a lawsuit against Apple-Metro, the Applebee’s franchise owner in New York City, when I discovered that even though the Applebee’s in the Bronx is reportedly among the most financially successful and serves the same food as the Applebee’s in Manhattan, workers in the South Bronx are paid drastically lower wages. Why? Well, the workers in the South Bronx are mostly Black and Hispanic, and, as one of my managers put it, “[Manhattan] has white people and tourists.” Fortunately, as a Columbia Law student, I knew my rights and how to exercise them.I was also fortunate to be represented by amazing attorneys at the National Center For Law And Economic Justice (NCLEJ). I filed a legal complaint with the Equal Employment Opportunities Commission and filed additional charges when the company illegally retaliated by firing me after my complaint.

But this can’t be the answer to the systemic injustice in the restaurant industry. Bad actors are not given significant deterrence (this company has already faced lawsuits over discrimination and paid $100,000 to settle such claims), many workers may not feel comfortable filing legal charges, and the problem isn’t limited to one region or one restaurant. Upwards of 70 percent of women in the restaurant industry report they have been sexually harassed, Black and Hispanic workers face persistent discrimination, and all restaurant workers disproportionately struggle with food insecurity and poverty, including being twice as likely as other workers to rely on food stamps to feed their families.

It’s clear that our current subminimum wage system has a major cost, a cost passed onto consumers by employers refusing to pay the full minimum wage, a cost placed onto workers in the form of mistreatment and discrimination that is allowed to fester in the absence of legal protections, and a cost passed onto local economies facing worker shortages in the face of poverty wages. We can and we must do better.

The restaurant industry is the third largest employer in the nation; we can’t address poverty wages, sexual harassment, discrimination, and other mistreatment on a case-by-case basis. Nor should we have to. And while state-level policy change is important, the onus should be on the federal government to change our laws to be fair and evenhanded—no matter what powerful corporate lobbyists want. The best way to honor the good intent of the original FLSA is by improving it—and finally ending the subminimum wage once and for all. Every worker should be paid at least the minimum wage, and the minimum wage must be a livable wage.

Justin Onwenu, One Fair Wage, is a Columbia Law Student and former Applebee’s waiter who was fired after filing wage discrimination charges.

Read essays from workers and advocates whose direct experience with the FLSA’s shortcomings offers a starting point for discussion and action to change it:

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