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Tom Colicchio: Top Chef or Top (Wage) Thief?

We have watched hundreds of cooking shows on television. One of our early favorites was Top Chef, in which a group of talented cooks compete in an elimination format for a large monetary prize and designation as “Top Chef.” The chief judge on the show is Tom Colicchio, a noted chef who has won five James Beard awards. Colicchio has parlayed his cooking prowess into a career as an entrepreneur and is now the owner of the Craft group of restaurants, with venues in New York City and around the country. On the show, his opinions matters most; if you watch carefully, you soon see that what he says goes. To the aspiring top chefs, Colicchio is imperious and demanding, critical to a fault and not accepting of excuses, no matter how valid they might be. The contestants usually seem to fear him; it certainly is true that they challenge him at their peril.

Given the way her carries himself, it would be reasonable for viewers to think that he is above reproach in his own restaurant affairs. Thus I am sure that it came as a shock to fans of his and the show that he and his restaurants are now defendants in a class action civil suit alleging wage theft. New York Times labor reporter Steven Greenhouse wrote that,

“The lawsuit, filed in Federal District Court in Manhattan, accused management of violations of federal and state wage laws, including failing to pay workers time and a half for all hours worked over 40. It also asserts that management shared employee tips with other workers who are not qualified under federal and state law to share in the tip pool.”

The well-regarded law firm filing the suit, Outten & Golden LLP, states on its website that,

“On December 11, 2008, Outten & Golden filed a nationwide class action against celebrity chef Tom Colicchio and his Craft-brand of restaurants – Craft, Craftsteak, and Craftbar. The lawsuit, brought on behalf of the restaurants’ waiters, bussers, runners, and other hourly service workers, claims that Colicchio deprived his workers of the tips they earned, failed to pay them overtime for all of the hours they worked over forty in a week, did not pay at the proper minimum wage rate, and made other unlawful deductions from the workers’ pay. The complaint also alleges that suit’s named plaintiff, Nessa Rapone, was fired in retaliation for raising concerns with management about the restaurants’ wage and hour policies.”

Serious charges. I don’t know if Colicchio and company are guilty, although given his supercilious demeanor on Top Chef (the photo below, from the Times article, speaks a thousand words), I would be the first to say, “It figures,” if he is.

Chef  Tom Colicchio (Virginia Sherwood/Bravo)

On Greenhouse’s blog, there are several dozens comments, and most of them express little surprise at the suit and assume that it is very likely true. Many of the comments are from current or former restaurant workers who have had their wages stolen. In fact, wage theft seems to be epidemic in the United States. Kim Bobo, founder and Executive Director of Interfaith Worker Justice , has been documenting this employer crime. Bobo tells us that,

“Billions of dollars in wages are being illegally stolen from millions of workers each and every year. The employers range from small neighborhood businesses to some of the nation’s largest employers—Wal-Mart, Tyson, McDonald’s, Target, Pulte Homes, federal, state, and local governments and many more.

Wage theft occurs when workers are not paid all their wages, workers are denied overtime when they should be paid it, or workers aren’t paid at all for work they’ve performed. Wage theft is when an employer violates the law and deprives a worker of legally mandated wages.

Wage theft is widespread and pervasive across all types of companies. Various surveys have found that:

60 percent of nursing homes stole workers’ wages.

89 percent of nonmonitored garment factories in Los Angeles and 67 percent of nonmonitored garment factories in New York City stole workers’ wages.

25 percent of tomato producers, 35 percent of lettuce producers, 51 percent of cucumber producers, 58 percent of onion producers, and 62 percent of garlic producers hiring farm workers stole workers’ wages.

78 percent of restaurants in New Orleans stole workers’ wages.
Almost half of day laborers, who tend to focus on construction work, have had their wages stolen.

100 percent of poultry plants steal workers’ wages.”

 Bobo goes on to say that, by conservative estimates, many millions of workers are being regularly cheated by their employers—not paid minimum wage, denied lawful overtime, misclassified as independent contractors or supervisors and thus illegally denied wages and overtime, denied mandated breaks, subject to illegal deductions from their pay, and victimized by arbitrary changes in their time cards.

What is going on here? Let’s look at this more deeply, using the restaurant industry as our model. My three sons earn their living in this industry, and it is from them that I have learned about this occupation. Working in kitchens is hard and dangerous. Two summers ago, Karen and I were at a party. A woman I have known for more than thirty years was going on about fine restaurants and what an art form the preparation of a good meal was. As she talked, our irritation rose. She knew little about what went on in “fine dining” kitchens. People shouting and moving quickly in small spaces, carrying sharp knives, hot pans, and kettles of boiling liquid. Floors are slippery, and rooms are hot. Temperatures of 150 degrees are not unknown. In the Pittsburgh restaurant, Baum Vivant, the cooks, overcome by the heat, routinely went outside to vomit. The equipment is often faulty. A chef we know got his hand mangled in a blender he was trying to repair on the fly. Missing fingertips and cut and burn scars are universal. In some small establishments, the head chef works the line with everyone else and the cooks learn and execute the dishes from start to finish. The menu may change daily, adding to the stress but giving the workers a sense of accomplishment and pride as they develop their all-round skills. When one of our sons, who has worked in several such places, cooks a meal for us, we never want to cook again. His food is good in a way that ours will never be. The downside is that work hours are onerous and frequently unpaid. The chef or owner often offers more pay if the cook agrees to go on salary. But then, the bosses assume that overtime does not apply, and hours are cranked up beyond belief. Days off disappear. Even the best of chefs tends to shift work to his most talented underlings. Given that there are usually many available cooks in most markets and given that they are unorganized, there is little that the exploited cook can do except bear the pain or look for another job and begin the rat race all over again.

In larger, more corporate kitchens, work is done in assembly-line fashion, with a strict division of labor and a power hierarchy to match. Each cook has a station and does the same thing again and again. The jobs may be Taylorized (cooks must do a job in an exactly specified way) to enforce maximum labor efficiency. Strict portion control is maintained through intense supervision. If lucky and good, cooks get to change stations and learn new things and eventually be promoted to a position in which they get to oversee the labor of others. Until that happens, cooks can count on low wages and no or limited benefits to complement their hard work. It is a rare job that pays more than $12 an hour to start, no matter the skill of the applicant. But when cooks get better jobs, they will be put on salary, with the aforementioned results: unconscionable hours, few days off, and no overtime.

A fundamental law of capitalism is that competition forces businesses to “accumulate capital,” that is, to make a profit and use it to expand the invested capital. Talented chefs who manage to get financial backers and good reviews dream of owning a restaurant. If they manage to do so, their dreams soon turn to expansion: cloning their restaurants or opening ones with different themes; starting a line of cooking products; writing best-selling cookbooks; starring in a television show. There are also, of course, restaurant entrepreneurs who are not chefs but who just open or buy restaurants. Danny Meyer and Jeffrey Chodorow are good examples. We’re more familiar with the chef/owners—notably such high-fliers as Emeril Lagasse , Bobby Flay, Mario Batali, Rocco DiSpirito, Jean-Georges Vongerichten, Anthony Bourdain, Paula Dean, Tom Colicchio, Gordon Ramsey. These chefs are omnipresent on television and in the dining section of our major newspapers.

Celebrity chefs serve two functions. First, they glamorize this line of work, both stimulating the restaurant business and encouraging people to pursue cooking careers. Thousands of young, and not so young, men and women shell out thousands of dollars to attend cooking schools, which have sprung up like weeds in every part of the nation. Second, and connected to the first, the chef stars help to hide the reality of kitchen work.

Let us set up a plausible chain of events. A skilled and imaginative cook like Mr. Colicchio works his way up the kitchen hierarchy and becomes a chef. He then takes advantage of an opportunity to become a chef/owner. His restaurant wins awards and multiple star ratings from Zagat or Michelin. He still cooks, but he has assigned many of his previous kitchen duties to subordinates because he has other things to do. He may yet have a paternal concern for his employees. Many workers who were employed by Mr. Colicchio have portrayed him as a fair and honest owner. But now something interesting happens. Rich backers enter the picture and our chef soon oversees the opening of a new eatery. He writes a cookbook and makes his first media appearances. The process repeats itself and before you know it, everyone is clapping when, like Emeril, he says “Bam!” He is the center of a culinary empire, with a small army of PR personnel, lawyers, accountants, bankers, and a large number of intermediaries between him and the workers who staff his various restaurants and related enterprises.

Once this happens, the chef has become a capitalist and less an individual that a representative of the entire class of owners. He is now embedded in an enterprise whose operations are dictated solely by the logic of capital accumulation, and he is no longer the more autonomous being he was when he spent his evenings in the kitchen. If things go awry for a particular employee, the capitalist can, with some truth, claim that he is not responsible. Now, the bottom line rules, and nothing else matters.

What does the logic of capital accumulation mean to the cooks, waiters, and bartenders who keep each establishment humming for lunch and dinner each day? Mr. Colicchio, or any other restauranteur, cannot control the market. There is too much competition—many good chefs, thousands of cookbooks, various lines of cookware, hundreds of comparable restaurants, and new blood always on the prowl for fame and fortune. However, they can control the workers who make the profits and growth possible. The pay and security of supervisors down the chain of command can be tied to their ability to get as much work out of each employee at as little cost as possible. Jobs can be time and motion studied to minimize the amount of labor per unit of output (a meal in a restaurant, for example). Cameras and security staff can reduce theft and unauthorized breaks. Cooking tasks can be subdivided into details to convert a kitchen into an assembly line where meals flow off the stoves like cars on an assembly line. Computer programs can monitor every aspect of the business so that constant improvements can be made (what the Japanese call “kaizen”). All of these thing must be done if capital accumulation is to occur. And they will be done irrespective of what Mr. Colicchio or Mr. Lagasse might prefer from a human point of view.

The restaurant industry has certain features that make more nefarious cost-cutting measures likely, even certain. Much employment in restaurants is casual. Workers move from one job to another with regularity; even skilled cooks routinely quit one job for another. Waiters might be serving tables until something better comes along. Immigrants, some without documents, fill urban restaurant kitchens. Heavy drinking and drug use, often enough tolerated or encouraged by management (to keep workers loyal and hardworking, as rewards in lieu of pay and substitutes for needed rest and sleep), are common in restaurants. Young, transient workers do not always keep track of their daily hours or save their time slips. Cooks are trained to have a macho attitude, to handle any challenge, no matter how physically demanding. At the same time, their training is feudal, in the sense that they are taught to obey superiors without question. Cooks really do say, “Yes, chef,” like they do on the television shows. Finally, kitchen and dining room workers are seldom organized in unions. This makes it less likely that they will be cognizant of laws that might offer them protection against employer abuse.

In such a setting, managers, who are themselves under constant pressure to show a profit, soon see that a nearly foolproof way to cut labor costs is simply to cheat the workers. At the well-known restaurant, Veritable Quandary, in Portland, Oregon I knew a cook whose time card was altered. He said that this was common practice. A manager would visit the place, usually on a weekend, enter the employee hour database on a computer, log in, and reduce employee hours. This worker logged in one day with seventy-two hours on his biweekly time card. He worked nine hours, but he discovered that his total hours had increased only to seventy-four. He was cheated of seven hours of hard work. He had his daily time records, so when he confronted the manager, he was told that a mistake was made. The hours total was corrected. But another time he didn’t have his slips and he was a victim of wage theft. I know cooks whose employers refused to pay them for their last days of work after they quit. I also know restaurant employees who have not been paid legally mandated overtime. In an interview, Kim Bobo says, “You talk to any young person who’s worked in the restaurant industry, in recreation. They all talk about having tips stolen, working hours they’re not paid for or being clocked out long before they stop working. Wage theft is all around us.”  So multiply what I know my several million, and you see that the problem is indeed “all around us.”

What we have in the restaurant industry and many others as well, is not a case of a few bad apples or tragic mistakes. It is systemic. All profits derive from the labor of wage workers. This makes it incumbent on employers to control the labor process—every aspect of the way in which the work is done—as much as possible. If the workers are divided and unorganized, the employer has carte blanche. Put simply, if wage theft can occur, it probably will. If I were a betting man, I would wager that Mr. Colicchio and his companies will be forced to make a settlement of any class action lawsuit. However, even if there is a settlement, he will escape unscathed, a little poorer perhaps but free to continue to make money. How has Kathy Lee Gifford suffered from her admitted connections to Central American garment sweatshops? She is still appearing on television, including a recent appearance on Top Chef, where as a host on the Today Show she rudely and disgustingly spit out the food of a Top Chef contestant. The reason that it will be business as usual for Tom Colicchio is because there is at present little systematic organization of workers, no way to force systemic change. Yes, there will be more lawsuits. But these must be initiated by workers, who must find lawyers to bring them, attorneys who will reap millions of dollars in fees. These lawsuits will not empower workers collectively, the only thing that has real staying power.

My dad worked from 1940 to 1984 in a unionized glass factory in my hometown of Ford City, Pennsylvnia. The union and the company had negotiated a complicated incentive plan for production workers. Each pay day, the men and women scrutinized their checks for errors. A check a few pennies short would lead to an angry demand for immediate restitution. No one worked unpaid overtime. If the employer violated the contract, it had to pay, even if it meant paying someone twice, once for the work he should have done and once for the work he had been ordered to do. Wage theft was unthinkable. If what happens every day in restaurants had happened there, the workers would have walked out the door. And then they would have been paid.  What will stop wage theft is massive working class organziation, in workplaces and in the larger society.

References

The Greenhouse report is at  (http://www.nytimes.com/2008/12/13/nyregion/13chef.html?partner=rss&emc=rss).  The Outten & Golden statement is at <(http://www.outtengolden.com/firm/practice/class-actions/#255)>.  Information about Kim Bobo and her organization and book are at <(http://www.iwj.org/template/index.cfm) and http://www.wagetheft.org/).  The Bobo interview is at < http://www.aflcio.org/mediacenter/speakout/kim_bobo.cfm)>.

4 Responses to Tom Colicchio: Top Chef or Top (Wage) Thief?

  1. Louis Proyect December 31, 2008 at 2:25 pm #

    Here’s an interesting article on NYC’s most notorious case:

    NY Times, December 18, 2008
    The American Dream, Delivered Perhaps Too Cheaply
    By RALPH BLUMENTHAL

    If anyone seemed to embody the American dream, it was Simon Nget.

    Reaching New York’s shores in 1981 as an unlettered 18-year-old Chinese refugee from Cambodia, where he said relatives had starved to death under the Khmer Rouge, Mr. Nget learned his A B C’s in high school in Chinatown and the Bronx, as he recounted, the homework sometimes taking him 10 hours a night.

    But he graduated and went on to college, packing delivery orders of Chinese food, waiting tables and cleaning offices until he saved up enough to marry and buy a coffee shop in Queens. From there, it was a Vietnamese restaurant on Broadway, where, he recalled, he lived for two years, sleeping in a chair. Then there was a second Manhattan restaurant, and a third, all grossing, by 2006, a total of $7 million a year.

    “I come to this country, what I do is work, work hard, learn hard, and you learn something; you work hard, you save money,” he testified in a federal court case. “Save money, work hard making money, save money, that’s very important.”

    Maybe too important, if the accusations against him are proved. On Dec. 3, Mr. Nget, 45, and his wife, Michelle, 51, mother of their two children, were arrested on 242 state criminal charges each of cheating the food deliverers for their Saigon Grill restaurants out of millions of dollars in minimum wages, falsifying business records, taking kickbacks and defrauding the state’s unemployment insurance system. Each count carries a prison sentence of up to four years.

    The Ngets, who pleaded not guilty, were released on bond and continue to operate their two remaining restaurants, at Amsterdam and 90th Street and on University Place between 12th and 13th Streets, although they no longer deliver from the downtown location.

    In a separate federal lawsuit brought pro bono by lawyers from Davis, Polk & Wardwell, Magistrate Judge Michael H. Dolinger ruled against the Ngets in October, finding their testimony about their business practices “incredible” and “manifestly false” and ordering them to pay $4.6 million in back pay and damages to 36 delivery workers, mainstays of their operation.

    “Because he was exploited in the past is not a reason to exploit others in the future,” said Josephine Lee, the coordinator for Justice Will Be Served, a labor organizing campaign that championed Mr. Nget’s aggrieved workers. If anything, she said, it made the actions of the Ngets “all the more inexcusable.”

    The lawyer for the couple, S. Michael Weisberg, insisted that the Ngets were blameless. “Their workers are liars,” he said at their arraignment.

    The Ngets, who live with other family members in a cluster of 12 apartments in College Point, Queens, did not respond to repeated telephone messages and workers at the restaurants said they were not there.

    But the federal trial transcript and sworn depositions of the Ngets and fired workers encapsulate a stark narrative, a rags-to-rags tale of immigrants accused of victimizing people much like they had once been.

    “I got here owning nothing, you know,” Mr. Nget told Judge Dolinger.

    Arriving in New York on June 12, 1981 — “very important date, I know,” Mr. Nget testified — he was sponsored by a cousin whose parents died in the Khmer Rouge genocide. Other family members joined him, including his parents; his elder brother, Richard; and his elder sister, Leana, who would later help him in the restaurants.

    “I have a family who should be die in Cambodia, but we survive and we got a life in the United States, like in heaven,” he testified. “We love our life.”

    He supported himself by packing orders in a Chinese restaurant. He said that he never considered himself exploited and gave little heed to wage laws. “I paid not much, but I make a very good living,” he said. “I have no complaint.”

    He spent a semester at City College and two semesters at Polytechnic Institute of New York University before dropping out because, he said, “I find food is much easier.”

    By 1986, he had saved enough to marry and pay about $50,000 for a coffee shop in Astoria, Queens.

    In 1996, he and a Chinese cook became partners in the first Saigon Grill, on Broadway at 87th Street.

    “I take risk, you know,” he testified. “He cook,” he said, referring to his partner, “but it doesn’t taste good.” After a year, Mr. Nget said, he and his sister took over the cooking and he bought out the partner.

    “I was the first two year busy like a dog,” he recalled in his deposition. “I sleep in there two year on the chair.”

    But in just another year, according to trial testimony, the family’s fortunes had swelled enough for Mrs. Nget and partners to buy a building on Second Avenue and 88th Street for a second Saigon Grill. In 2002, they closed and moved the Broadway restaurant to Amsterdam Avenue. And in 2006, they closed on Second Avenue and opened on University Place.

    But the success, evidence suggested, came at a steep and illegal cost to delivery workers, mostly illegal immigrants from Fujian Province in China who testified they were paid $500 to $600 a month for working 70 to 80 hours a week, often less than $2 an hour. They usually made several thousand dollars a month in tips, but that did not relieve the Ngets of their wage obligations under the law.

    Yu Guan Ke, 36, who began delivering for the Ngets in 1988 and became the lead plaintiff against them, said in an interview that “in the beginning, the boss and boss lady treated workers pretty fairly.” But as the restaurants started making money, Mr. Ke said, conditions became “harsher and harsher.” He said he once asked Mrs. Nget why. “She just kind of laughed and walked away,” he said.

    He said he was twice robbed during deliveries and had to repay the Ngets.

    To create false payroll records, the workers testified, the Ngets paid them with checks for larger amounts that they had to cash and pay back to receive their real — lower — pay. They also had to provide and service their own bikes and were fined $200 by Mrs. Nget for forgetting items in a food order.

    And when they sought to organize in protest, Mr. Nget ended up firing them all. In February the National Labor Relations Board ordered their rehiring, but whether the Ngets have complied is disputed.

    In her testimony, Mrs. Nget denied that she had ever hired or instructed any workers or knew anything about their pay beyond handing out the envelopes. “I have no idea what’s inside,” she said.

    Mr. Nget said he thought he had paid minimum wages. But he acknowledged, “I don’t keep any record.”

    “I’m a simple man, a good man,” he told the court.

  2. JK December 31, 2008 at 4:56 pm #

    Excellent piece. Was the Restaurant Opportunities Center (http://www.rocny.org/) involved in the class action suit? They have done some fascinating work using class action lawsuits as a tool to build collective worker power in the restaurant industry (in essence, as I understand it, ROC-NY becomes a party to the lawsuit and thus a party to the settlement, which is not a collective bargaining agreement but is legally enforceable by the ROC members in the shop).

  3. mike December 31, 2008 at 8:17 pm #

    Dear DK,

    I am not aware that the ROC is involved in the suit. I’ll have to look into that. I went to an ROC meeting in Chicago last year. Interesting group. Thanks for the note. Good point about using suits to buld power. Chinese Staff and Workers Asociation in NYC’s Chinatown does this too.

    Please notify others of my blog and this entry.

    Michael Yates

  4. Patty Majzoub February 2, 2009 at 3:04 pm #

    Hello Michael –

    I’m not sure if you’ve heard the news or not, but the Nobu Restaurant chain has paid $2.5 million to settle their tips lawsuit. I posted this on your Facebook page as well.

    Patty

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