The National Restaurant Association's Training Scheme Is Unconstitutional

[Omaha Steve]

Benjamin Sachs January 18, 2023

Yesterday’s New York Times reports on an extraordinary feature of the restaurant industry. Briefly, food service workers in four states (Texas, California, Illinois and Florida) are required to take a food safety training class every several years for which they are charged about $15. The company that provides the mandatory training to nearly all workers is called ServSafe, and it is owned by the National Restaurant Association. According to the Times, the fees that ServSafe charges for the mandatory training are used to fund the Restaurant Association’s political lobbying efforts, including the Association’s efforts to block minimum wage increases for restaurant workers. As the Times put it, “[m]ore than 3.6 million workers have taken this training, providing about $25 million in revenue to the restaurant industry’s lobbying arm since 2010.”

What do workers think about this arrangement? Most are kept in the dark about it, but those who are aware are unsurprisingly not happy. Again, from the Times story:

“I’m sitting up here working hard, paying this money so that I can work this job, so I can provide for my family,” said Mysheka Ronquillo, 40, a line cook who works at a Carl’s Jr. hamburger restaurant and at a private school cafeteria in Westchester, Calif. “And I’m giving y’all money so y’all can go against me?”

FULL story: https://onlabor.org/the-national-restaurant-associations-training-scheme-is-unconstitutional/

Benjamin Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School and a leading expert in the field of labor law and labor relations. Professor Sachs teaches courses in labor law, employment law, and law and social change, and his writing focuses on union organizing and unions in American politics. Prior to joining the Harvard faculty in 2008, Professor Sachs was the Joseph Goldstein Fellow at Yale Law School. From 2002-2006, he served as Assistant General Counsel of the Service Employees International Union (SEIU) in Washington, D.C. Professor Sachs graduated from Yale Law School in 1998, and served as a judicial law clerk to the Honorable Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit. His writing has appeared in the Harvard Law Review, the Yale Law Journal, the Columbia Law Review, the New York Times and elsewhere. Professor Sachs received the Yale Law School teaching award in 2007 and in 2013 received the Sacks-Freund Award for Teaching Excellence at Harvard Law School. He can be reached at [e-mail].

[Bluethroughu]

1. I wouldn't work in a restaurant anymore.

Not only do you have to pay for this stupid class, but most restaurants require the wait staff at the end of a shift to tip 5% to the hosts, 10% to the bar and 5% to the buss staff. BUT the wait staff is also charged 15% taxes on the bill of patrons they serve, and if the tip they received doesn't cover that, they pay tax on the bill anyway.

All this on top of the prep and cleaning of the restaurant for less than minimum wage.

[underpants]

3. Working in a restaurant was what fueled me to finally finish getting my degree

I’ve waited tables but at the time you just declared how many tips you’d received. The state got wise to that and now, as you said, assumes 15%.

Mostly I worked in the back. One job was me as the only nighttime cook in a bar with I’d say 80 seats. Kitchen closed at midnight and there was an hour of cleanup after that. I just wanted a job where I knew when I was getting off. No extra stuff.

[mopinko]

4. worked in a couple kitchens. making the cooks scrub down always pissed me off.

i always took it as a sign they didnt see me as skilled help.

i wouldnt work in a restaurant now, either. my time was long ago, but got a kid on the block that went through cia, and doesnt get shit for it. part of that is he’s biracial, which i was surprised about. trying to get his 1st job, had so many places that loved his resume, but were plain cold when he showed up. in chicago!
got a good job downtown now, but he’s not getting much/anything more than the guys who worked their way up. got $60k in loans, tho.

the pandemic is helping. when these places opened back up and started hiring they couldnt find dishwashers, let alone chefs.

[paleotn]

7. Been there. Won't do it again if I can help it.

Back in the 80's I worked a wait staff job my 1st year as an undergrad after my 4 year Navy stint. Went from trained and respected to shit on in one easy step. I vowed never to do it again and to this day treat wait staff with uber respect. Tough, thankless, low paying job.

Got into a fight last week over whether all US employers treat their employees badly. Well, this is one industry where we can all agree. The very wage structure itself is built to exploit all who enter the field. It's a travesty.

[eppur_se_muova]

8. WTH ?? "15% taxes on the bill of patrons they serve" ? What CONCEIVABLE justification is there ...

... for that ? That tax should be paid by the restaurant, not the employees !

I can see tax on the tip itself, but more tax than tip ??? Seriously, WTH is going on there ? I'm hoping I've misinterpreted that, or it's in error !

[ShazzieB]

13. I was confused by that, too.

It doesn't make one iota of sense to me. Say the bill is $100 (to pick a nice round number for the sake of disussion), and I tip $20 (20% of $100). If the server has to pay a tax of 15% of the bill ($15), that would mean they only get to keep $5 of the $20 I left? If so, that is incredibly messed up.

[KPN]

17. I believe what the poster was saying albeit a

bit unclearly was that wait staff income is reported by the restaurant for tax purposes as their wage plus estimated tips of 15% on the bills for all meals/drinks served by them. So a 15% tip is reported as wait staff income on every meal served whether a 15% top was left or not.

[eppur_se_muova]

19. OK, thanks for the interpretation! They are taxed on tips, ASSUMING 15% tips whether they get that

or not. Much clearer.

Makes me hate people who "tip" with Bible verses that much more.

[Casady1]

2. There should be a class action

lawsuit on this.

[markie]

5. well...

what a surprise... not!

[niyad]

6. Colour me sooooooo NOT surprised.

[MichMan]

9. I worked in a restaurant as a bus boy while in college in the late 70's

Watched the waitresses brag in front of me about making $100 in tips on a busy night, while I earned $15 from minimum wage. One of them gave me $1 once.

I never worked at another one again over the next 45 years.

[NullTuples]

10. Misleading headline; No court has ruled this to be unconstitutional.

Last line of the article: we look forward to a lawsuit.

Sure, we all agree it should be unconstitutional, but have you ever seen the current US Supreme Court? They're as likely to double down on lobbying as corporate person free speech.

[onenote]

12. How does a private entity's action violate the first amendment?

I'm not defending the practice, just wondering how this violates the First Amendment, which requires "state action".

[NullTuples]

27. Compelled subsidization

typically worded as, "a system of compelled support restricting employees' right not to associate, and not to support" vs the first Amendment's right to associate.

[onenote]

31. Again, the first amendment applies to government action

where is the government's involvement in this situation? The government isn't doing any compelling. And unlike some of the cases where union expenditures on lobbying activities have been found to violate the associational rights of public sector employees, the employees in this situation are not public sector employees.

[ShazzieB]

16. I think the headline is a statement of the author's opinion.

The author (an expert in labor law and labor relations) explains why he believes it's unconstitutional in the article:

So states are requiring workers to pay a fee to an organization that then uses the fees to fund political operations which many of the workers oppose. Sound familiar? It should. That’s because the Supreme Court has held that states may not require workers to pay fees to a union because to do so is to compel the workers to fund speech with which they may disagree. Indeed, the impermissibility of using mandatory fees for political expenditures has been established for decades. As the Court made clear in Abood (and reaffirmed in Janus), it views such compelled subsidization of political speech as unconstitutional under the First Amendment. But the food worker training system outlined in the Times has many of the same constitutional defects that the Court ascribes to mandatory union fees. (Whether ServSafe constitutes an effective monopoly in any of the four states, including whether workers have adequate notice that they can choose an alternative training provider, are important questions but are unlikely to change the underlying analysis.) Put differently, if mandatory union fees are unconstitutional so too are these mandatory food safety training fees, as long as the fees are used to fund political expenditures.

This makes sense to me. Of course, if it goes all the way to the Supreme Court, they can decide whatever they want, but it sounds like they have a reasonable case.

[MichMan]

20. Isn't that the same argument the RW uses in regard to union members opting out of paying dues?

"So states are requiring workers to pay a fee to an organization that then uses the fees to fund political operations which many of the workers oppose."

No one here believes that is a reasonable position.

[NullTuples]

26. Not quite the same as a union & employer are very different relationships?

[snot]

28. Right:

employees can't be compelled to contribute to a union that works to help them, but apparently they can be compelled to contribute to an organization that works to hurt them!

[NullTuples]

25. I don't disagree, but headlines should be clearly written to show that.

This one wasn't, so I felt the need to clarify, I guess?

[onenote]

32. The employees in the Abood and Janus cases were public sector employees

The restaurant employees required to pay fees that are used to fund lobbying expenditures are private sector employees. That typically is a constitutionally significant distinction. The only thing that might make this a constitutional issue is if the training courses are required by law. Even then, the courts might avoid the constitutional question by interpreting those laws as not allowing the use of mandatory training fees for lobbying (just as the SCOTUS has interpreted the NLRA as not permitting the use of mandatory security fees for expenses unrelated to collective bargaining).

[AllyCat]

11. How is this legal?

The employer should pay for training for employees, both their time to be there and the cost of the class!

[murielm99]

14. That should be true of many other types of jobs as well.

Why should any employer expect anyone else to train their workers?

[MichMan]

15. The employer isn't the one requiring it, the state government is.

Texas, California, Illinois and Florida

Apparently, they chose to use the National Restaurant Association as the provider.

[housecat]

21. Absolutely. Decades ago my new job paid regular salary for my three weeks training. It was

a good first impression.

[JoeOtterbein]

18. Those of us in the food safety business, think that ServSafe ...

...is a rip-off. The National Registry of Food Safety Professionals and National Environmental Health Association both have much better courses for a lot less cost. Even Prometric's Food Safety Management test is more cost effective than the little ServSafe test.

[PatSeg]

22. Whoa, what a scam

Food service has always been a rough occupation, but it appears to be getting worse.

[Farmer-Rick]

23. Wage theft is how most restaurants, especially chains, make their money

When most restaurants workers were illegal immigrants, especially the back of the house, restaurants got away with it. They could pay the struggling immigrants practically nothing, ignore safety requirements, scoff at labor laws and withhold tips.

But then the Republicons chased most immigrants away, especially if they were visible to the public. Now restaurants have to follow some minor labor laws and they are complaining.

There were very famous, supposedly liberal, restaurant owners bragging at how those immigrants were just sooooo much better workers than your average American citizen. They never said the middle part of that sentence. They were just soooo much better workers willing to accept miserably low wages and abuse than your average American citizen.

Wage theft and abuse of workers is how capitalism makes people rich.

[littlemissmartypants]

24. I loved being a waitress. I could quickly establish rapport, always remembered my customer's

special requests, how they liked their steak, took their coffee and anything that I could do to maximize their happiness and my tip.

I learned how to balance four platters of pasta on one arm, quickly winding my way around every dining room obstacle imaginable while carrying a loaded tray in the air with my opposite hand.

I love helping others and being a waitress provides a multitude of opportunities for that.

This article does chronicle a abuse that is no doubt unethical, underhanded and financially abusive. Plus, I'm certainly glad it's being addressed. Unfortunately, there's another pervasive injustice people in food service experience, especially women.

It's the invasion of one's personal space in the form of slapping and pinching which is actually assault. This is one thing I wish the PTB would be as interested in curtailing but may never take seriously. I believe that's because it primarily affects women.

I'll never understand what makes strangers, primarily men but sometimes even women, think that one can pinch or slap a woman on her bum and insist that it's socially acceptable.

One day, again inappropriately touched, assaulted by a customer, I was finally pushed over the edge.

My boss thought it was funny, didn't think of it as wrong and refused to stand up for me. He didn't want to alienate his customers. In fact, he suggested that I lighten up and advised me me that if I wanted to keep my job, I wouldn't be so difficult. There was even a suggestion that my tips would be better if I just accepted that it was part of the job.

But I'd had enough. I was being disrespected and getting no support so I took matters into my own hands.

Because sometimes revenge isn't a dish best served cold, I accidentally, on purpose, spilled a nice steaming bowl of soup into the man's lap.

I didn't get fired because I gathered my things and walked out. Funny thing is I found a twenty dollar bill on the rug just before I went out the door. I took that as a sign that I was doing the right thing and that things would get better. Financially they did. But I have continued to be sexually harassed my entire adult life and I am positive that I'm not alone.

Although it isn't waitress related, one of the most disgusting instances happened between the gas pumps at a Hess station. I was walking to the door to get my refund from my cash prepay when the guy who had been pumping gas at the next row of pumps right across and behind me stepped toward me.

As I started to pass by he took his erect penis out of his pants and like a proud kindergartener said "Look what you did to me and all you did was stand there." I don't know what he was expecting. Applause? For me to say "atta boy?" To have me thank him for the compliment?

As disgusted as I was, I walked by unphased. He however, was proud and unrepentant. He was just one more jerk in the never-ending parade of harrassers. What he did was illegal and it wasn't my first rodeo.

Another man had exposed himself to me at work. The guy was arrested because a police officer just happened to witness it and we ended up in court. So this guy at the gas station didn't even register as a blip on my radar.

Like every woman who has ever lived, I am just another (female)
second class citizen. As we’re not recognized by law as having bodily autonomy, we will never be free of harassment as long as entitled jerks live and women work as waitresses or in any other field.

We're waiting, too. When can we expect some justice, I wonder?