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Give a waiter a break?

Conflicted servers, nervous owners, and wound-up lawyers are battling it out in the latest labor fight to stir up San Francisco’s restaurant world.

Witness a scene being played out in restaurants all over San Francisco: A couple settles into their favorite table—the one with the comfortable banquette and the view of the open kitchen, where they can see flames jump from the pans as cooks work the line. The waitress smiles and asks, “The usual?” When she returns with two Manhattans, she’s also carrying a glass of wine. “This new Italian white just came in. I think it would be delicious with the cured anchovies you two like so much.” And even though the Tuscan kale is not on the menu tonight, she mentions that she saw some in the kitchen and will make sure they get a side of it. Oh, and there’s one more thing—a last-minute substitution, if you will. It’s time for the server’s dinner break, so someone else will be taking her place.

Welcome to your ringside seat for the latest battle in the world of restaurant labor relations. At a time when San Francisco’s restaurants are struggling to adapt to a series of city-imposed mandates—including increases to the minimum wage, paid sick leave, and a steep hike in healthcare costs—the issue of mandatory meal breaks is making many of the people who toil in the world of Bay Area dining extremely anxious.

California’s law calling for rest and meal breaks is perhaps the most worker-protective in the nation. While the requirements are nothing new—they’ve been around for decades—the consequences for flouting them have become too costly to ignore. Under legislation signed by then governor Gray Davis in 2000, employers who fail to comply owe their employees one additional hour of pay for each violation. What’s more, they’re on the hook for offenses going back three or even four years, according to a ruling last year by a surprisingly unanimous state Supreme Court.

It’s not hard to defend such a law, particularly in an industry that employs such a large number of young workers and immigrants earning minimum wage. An exhausted server doesn’t pose the same imminent public hazard as, say, a bleary-eyed truck driver. Nonetheless, says Sara Flocks, cofounder of Young Workers United (YWU)—a nonprofit worker center whose MySpace page urges, “Contact Us If Work Sucks!”—“most people can’t imagine working 8- or 10-hour shifts without being able to sit down or go to the bathroom.”

In the last two years alone, 131 servers, cooks, bartenders, and dishwashers have filed claims with the state labor commissioner in San Francisco, and thousands more workers at chain restaurants in California have joined class-action civil suits against corporate chains such as Emeryville-based Chevys Fresh Mex and Dallas-based Brinker International, the parent company of Chili’s. Bar Bambino, Tres Agaves, and Absinthe are just a few of the locally owned restaurants that have had to pay back wages for missed meal breaks.

As a result, restaurant owners now complain about their vulnerability to what the Golden Gate Restaurant Association calls “drive-by lawsuits,” claiming that attorneys are trolling for such cases. In fact, most employees at non-chain restaurants don’t have a case lucrative enough to attract a lawyer, and instead may file claims with the state labor commissioner’s office. Still, the threat is sufficient to scare restaurant owners into taking any steps necessary to avoid such legal proceedings, including changing decades-old rules, most of them unwritten, about how waiters should do their jobs. The math alone is convincing: A restaurant with just 25 employees has a potential exposure of $87,000 a year on missed or undocumented meals alone. Given the three-year back penalties, a larger restaurant with 100 employees is looking at a hit of up to $1.56 million if it gets caught—enough to put such a restaurant out of business.

The restaurant association has circulated guidelines warning that a violation can occur if an unpaid meal break for employees working five hours or more is less than 30 minutes, does not begin within five hours of the start of a shift or ends more than five hours before the end of a shift, if the employee performs some work during the meal period, or if the employee is not free to leave the restaurant. When an employee sues or files a claim, employers also bear the burden of proving meal breaks were taken. (The state is less strict about documentation for 10-minute rest periods, required for roughly every four hours of work.)

Restaurateurs are learning the hard way that they forgo scrupulous record keeping at their peril. “I hear the same story all the time: ‘I have very loyal employees, and we’re like a family,’” says lawyer Dale Hudson, who specializes in labor and employment law. “All it takes is one employee where there’s a breakdown. If that employee becomes unhappy, gets terminated, gets educated, marries a lawyer—then you’d better be able to prove they took all of their breaks,” or else.

The climate of trepidation is pervasive. Employees fear being fired or blacklisted for daring to complain, and some waiters and bartenders are angry at coworkers who lobby for breaks that require them to leave the floor for an unpaid half hour in the middle of a busy shift, losing out on the tips and wages they depend on. Restaurateurs—even those who now follow the law—dread becoming the target of ex-employees seeking settlements that could devour their already strained profits.

Regardless of their stake in the matter, few of the interested parties are eager to talk about the issue publicly. This point was made clear at a labor commission hearing in February, at which five former employees of the San Francisco Brewing Company accused owner and manager Allan Paul of denying them breaks. A grim-faced Paul declared that he “didn’t care” to participate in any article, while Sonya Mehta of YWU called it “outrageously unprofessional” for the journalist to use the plaintiffs’ names without asking their consent, despite the fact that the reporter had permission from the commissioner to cover the proceeding. Owners and workers from several other restaurants declined interview requests for this story.

This tension is changing the dining world restaurant by restaurant, from high-end dining rooms to corner pizzerias—requiring an industry that prides itself on its rogue spirit to conform to a model that many of its employees took restaurant jobs to escape.

“Listen, I’m not in the corporate world; I’m a blue-collar guy who just happens to have a restaurant,” says Basque chef Gerald Hirigoyen, owner of Piperade and the tapas-and-wine bar Bocadillos. He says that his staff, after reporting to work at 4 p.m., typically take a half-hour break at 5 before the restaurant opens for dinner, and go home around 11 p.m. “I treat my people with respect,” he says, “and everything is fine here. No problems. It’s good.”

The truth is that there’s a particular rhythm to restaurant work that can make it difficult to establish a predictable break schedule. Dan Scherotter, chef-owner of the financial district’s Palio d’Asti and president of the Golden Gate Restaurant Association, insists that the food industry is different from many other types of businesses. “The first rule is that when everyone else is eating, you’re working. Can you imagine stockbrokers leaving the floor in the middle of the trading day?”

Over the years, restaurants have established their own set of rules. The business depends in large part on young workers with few skills, along with immigrants, many of them illegal. Breaks, health insurance, vacation, and sick pay—benefits that workers in other industries take for granted—were, until recently, essentially unheard of in restaurants. In exchange for their loose interpretation of standard employment practices, restaurants offer on-the-job training and entry to the workforce for unskilled laborers. Flexible schedules give staff time to attend school or pursue other careers as musicians or artists, and still pay the rent. Bartenders and waiters can count on a cash-based income that often goes unnoticed by the IRS. Illegal workers find employers more interested in dishwashing skills than in citizenship status. And plenty of restaurant owners sponsor immigrant employees for green cards and hire their relatives who are new to the country.

But this custom of winking at the law occasionally ends up in a hearing room. Phil Meeker, a former brewer at San Francisco Brewing Company, testified at the hearing that not taking breaks was “part of the culture,” adding that those who questioned the policy would be berated and threatened with losing their jobs. Alicia Hershey testified that she often worked as the sole server responsible for more than 25 tables, frequently without the chance to take a break. Paul insists that he only objected to workers’ taking breaks during busy times. Asked why their time cards seemed to contradict his claim, he maintained that he had repeatedly instructed staff to clock out before their breaks—and that all their time cards proved was that they had ignored his request. Ultimately, the hearing officer ruled that the restaurant must pay back wages for missed meal breaks.

Labor advocates say it’s time to yank back the curtain and expose the dirty secrets of an industry that exploits its transient, low-wage workforce—and ignores laws like the one requiring breaks because it believes workers will be too intimidated or uninfor­med to demand them. But while dishwashers and bussers are often immigrants with less labor-law savvy, waiters and bartenders tend to be better informed. “There’s nobody more sophisticated about employment rights than servers in San Francisco. Seriously, a lot of them are PhDs,” says employment attorney Margaret Murray.

By and large, the lawsuits seem to be having the desired effect. State records suggest that San Francisco restaurateurs are becoming more careful about complying with break laws; while 87 workers filed cases in 2006, last year the number was half that. Privately, though, both sides acknowledge that there are still instances of people working without breaks—sometimes by choice and sometimes not—although in San Francisco, that’s becoming rarer.

“In my earlier experiences working in restaurants, I’d say the number of breaks ranged, on average, between nil and none,” said Marc Bell, who recently left the restaurant industry to become a booking agent for musicians and DJs. “But at my last server job, at Town Hall, they were great about making sure you were fed and respecting your needs. Things seem to be getting better, although I know servers in some
other restaurants are still worked to the bone.”

How does the public feel about all this? While some customers are supportive, others have been surprised by the notion that servers need to stop and eat. “There were those who acted anxious, like I was abandoning them,” said Josh Truett, describing the responses from his tables when Salt House instituted a rotating “rover” to relieve servers for breaks. “Sometimes I’d feel like saying, ‘It’s the law. Do you work all day without a break at your job?’”

Some restaurants expect break-relief servers to share in the tips given to the servers they relieve, while others pay them a higher hourly wage in exchange for their forgoing tips altogether. Critics claim that this solution is not as simple as it sounds. “A good waiter in San Francisco, with salary and tips, makes between $28 and $30 an hour. That’s what you need to pay an experienced server to cover breaks,” says Palio d’Asti’s Scherotter. “You have to pay more, and suddenly you don’t have someone motivated to sell your food, because they’re not on commission.”

Other restaurant owners have looked for alternatives, such as requiring workers to take breaks near the beginning or end of their shifts. The legality of that practice is at issue in the much watched Brinker case now pending in court.

Another option, known as pay-as-you-go, allows restaurants to tack on an extra hour of pay to make up for the loss of midshift meal—in effect paying employees the same compensation they would be entitled to if they were ever to file successful claims over the missed breaks. According to Dean Fryer, spokesman for the California Department of Industrial Relations, the state has no objection to this solution.

At Marina trattoria A16, evening servers typically work from 4 p.m. until nearly midnight without a meal. “If we made them take a break halfway through their shift, they’d be breaking at 8—that’s at the height of dinner service,” says managing partner Shelley Lindgren. Instead, the owners add extra time onto the payroll after the waiters clock out. “If a server really wants to take a meal break, we tell them a manager will step in and cover,” says managing partner Victoria Libin.

How often does that occur? “It’s never happened,” Libin says. “Rest periods are different, but if you tried to enforce dinner breaks and make a server working for tips leave their tables for half an hour, you’d probably have everybody quitting.”

Lindgren, who worked for many years as a waitress at San Francisco’s landmark French restaurant, Fleur de Lys, says that “as a server living primarily on tips, I didn’t really want to take a break. It’s nothing like a computer job, where you can stop, take a break, and then just start where you left off.”

Under a new policy at Tres Agaves, early-shift workers get a staff meal between 3 and 4:30 p.m., and the later shift gets one starting anywhere between 9 and 11 p.m., plus an occasional appetizer spread on which they can nosh. “A lot of this is body-clock management,” says managing partner Eric Rubin. “We can’t make people eat when they’re not hungry. If somebody says, ‘Rubin, I’m hungry,’ they’re going to be able to take a meal break. But there’s no way you’re gonna get a server to take a break between 6 and 9 p.m. It’s against their self-interest.” In fact, insists Scherotter, midrush meal breaks go against everyone’s interest.

“If the waiter who’s been taking care of you, and knows what you’ve ordered and how you’ve ordered it, disappears, the customer loses. The restaurant operator loses. And that server loses out when it comes to tips. It’s lose, lose, lose all around.”

However individual restaurants resolve the issue, it’s clear that this increased attention to workers’ rights is changing the restaurant industry in fundamental ways. The days when employers could rely on a "you take care of me and I’ll take care of you" approach to labor issues, ignoring the letter of the law while perhaps embracing its spirit, are coming to an end.

Flexibility is a great advantage in an ideal world, but it can invite exploitation in an imperfect one. For the time being, operators who fail to strike the right balance between the rights of workers and the peculiar demands of their industry run the risk of getting served themselves. Increasingly, their workers seem ready to dish it out.