Most Americans would never accept a new job without knowing where it was and what the hours would be. Nor would they take an apartment without knowing if it meant a bedroom to themselves or a living room floor shared six ways — a scenario described by one worker interviewed by the Gazette.
Undocumented restaurant workers don’t always have that luxury.
Illegal immigrants travel largely from Asian countries, Mexico and countries in the South and Central Americas — and some 11.3 million arrived in the U.S. in 2014 alone, according to the Pew Research Center.
Many arrive in New York City without papers, family or friends, turning instead to a network of Chinatown job agencies to find jobs in restaurants that offer sub-minimum wages, work weeks of 50 to 72 hours and “free” housing in Hampshire County and other locations around the Northeast.
When it comes to employment, the term “undocumented” means someone working illegally in the United States. In some cases, this means that a worker has absolutely no documentation. In other cases, a worker has been granted political asylum, a student visa or some other type of temporary visa — but no working visa — and therefore is not legally permitted to work.
Bob Luz, president and CEO of the Massachusetts Restaurant Association, said that while the food industry is not alone in struggling with how to deal with immigrant workers, it has become a major concern given the large number working in American kitchens and dining rooms.
“We only advocate that restaurants hire documented (immigrant) workers,” Luz said. “That being said, we think the restaurant associations — both state and national — have been pushing for comprehensive immigration reform because there’s a need for it, as you’re finding.”
Luz said restaurants have a hard time staffing their kitchens and so owners naturally turn to undocumented workers who are here and eager to work.
“We tell our people legally what they have to do when they employ people — you can just get yourself into too much trouble and it’s just not worth it,” he said. “But every employer needs employees, as well.”
Chris Chen, owner of Taipei and Tokyo restaurant in Northampton, said he provides housing for the Chinese immigrants he hires who might otherwise have trouble finding housing on their own.
“We try to hire citizens, but it’s hard to find Americans who can cook Chinese food,” said Chen, who said he paid workers $2,800 a month for 72-hour weeks, which would be slightly under the legal minimum and does not include the overtime pay that would increase the paycheck to $3,520. “Most of what we do is legal.”
(Chen’s wife, Daisy Huo, said in a later interview that he had been wrong. She said the restaurant does not employ or house undocumented immigrants, and that everyone at the restaurant makes legal wages.)
Whether workers are here legally or illegally, government officials stress, they must be paid at least the minimum wage, which in Massachusetts is $10 an hour. Restaurants (or other businesses) that pay less are hurting workers and giving themselves an unfair advantage over competitors.
“That is part of what makes a case a priority and when employers are exploiting workers, they’re creating this unlevel competition for those paying above the table,” said Northampton labor attorney Jocelyn Jones, who served as deputy chief of the Fair Labor Division of the Attorney General’s office for eight years before going into private practice.
State and federal wage and hour officials said they do not ask workers their immigration status when investigating pay and other labor issues. Questions surrounding immigration are handled separately through the U.S. Department of Homeland Security.
State and federal law requires employers to pay non-management employees an hourly wage, to deduct sums for taxes, Social Security and unemployment insurance, and to keep careful records of that compensation. But restaurant workers say the more common approach in Chinese establishments is to get a monthly lump-sum payment.
That raises a red flag, said Billy Peard, an attorney with Central West Justice Center in Springfield. “When I hear that a worker is offered a flat rate per week or per month, that for me raises concerns.”
Peard said that underpayment — increasingly known as “wage theft” — is a particular problem for immigrant workers who don’t know how to complain to government authorities or are afraid to risk losing a job and being deported. He said the low number of wage-related complaints filed by restaurant workers with the Massachusetts attorney general might actually indicate a large problem.
“Approximately 30 percent of the U.S. workforce is the victim of wage theft on an annual basis, so this is not specific to restaurant workers — it’s a societal problem,” he said. “Where there are lower complaints going into the AG’s office, that’s where the hairs on the back of our necks stand up a little bit taller.”
A bill passed by the Massachusetts Senate in July aims at cracking down on employers who underpay. Under the bill, employers would face stiff penalties for underpaying workers, including being shut down. It also gives employers a grace period to remedy pay problems once they come to light.
In the final legislative session on July 31, the House chose not to take up the bill, meaning it must again go through the committee process before it is voted on by the House or Senate in the new session beginning in January.
“Every worker has the right to guaranteed wages and protections from wage theft,” said Senate President Stanley C. Rosenberg, D-Amherst. “An honest day’s work deserves a just wage. This bill holds violators accountable while also giving recourse to workers, including immigrant workers who might be reluctant to speak out, who have been victims of wage theft.”
Northampton City Councilors Maureen Carney and Alisa Klein are drafting an ordinance that would tie restaurants’ food and liquor licenses to wage and hour law compliance. The measure should come before the full council later this fall.
“I’ve heard anecdotally for years from folks who’ve worked in restaurants that there are real problems with wage theft,” said Klein.
Labor lawyer Jones confirmed that state and federal officials have noticed “some sort of funneling system” between the New York Chinatown employment agencies and low-wage jobs in Massachusetts. In addition to the restaurant industry, Jones said she’s seen the system in play in the plastics manufacturing industry, and other sectors that rely on temporary workers.
“Our office is committed to protecting the most vulnerable workers in Massachusetts and we work closely with community-based organizations to make sure that workers who are exploited know to file complaints with our office and that we are here to help,” said Emalie Gainey, spokeswoman for the Massachusetts attorney general’s office.
The attorney general’s Fair Labor Division is one of nine agencies that form the Council on the Underground Economy, a body created two years ago with the advent of a higher minimum wage. John Ronan, a lawyer who works with the council, said the body seeks out employers who are cheating the system. In cases of systemic violations, he said, the council will conduct raids.
“I’m familiar with the types of situations that you’re talking about,” Ronan told the Gazette. “I think it’s something that has gone on for a long time — I think that Massachusetts is kind of at the forefront” of addressing it.
Officials offered as an example a case against Peabody Market, a convenience store in Peabody, for underpayment of workers. The attorney general’s office demanded $43,400 from store owner Azhar Ali after officials found he was routinely paying one employee less than minimum wage, not paying overtime and failing to keep accurate payroll records. The investigation came only after the worker — who was provided lodging in the store’s broken-down walk-in cooler — filed a complaint.
Karen Chen, co-director of the Boston-based Chinese Progressive Association, said the immigrant job agencies are “not a new phenomenon.” She said she’s aware of the underground system, but that she hasn’t been able to uncover many details because workers are usually afraid to talk about them.
“I do know there are restaurants that provide housing and usually, yeah, there are pretty bad conditions for workers,” said Chen. “We don’t have a whole lot of details, because we haven’t had someone who’s been willing to talk about exposing their employer.”
She said the underground Asian employment system flows from a system in which Chinese gang members known as “snakeheads” smuggle people into the United States in exchange for an exorbitant fee, which immigrants interviewed said can range from $65,000 to $85,000.
“I know there’s this underground network where people will pay a snakehead to get here and they work pretty much indentured to pay off their debt,” she said. “People are afraid to expose their employers or these networks.”
Amanda Drane can be contacted at adrane@gazettenet.com.