“How much is the banana?” I asked the clerk at the donut joint.
She looked for the button on the register, and couldn’t find it.
“What?” I said. “I can’t hear you. I have a banana in my ear.”
She laughed. She still couldn’t find the button the register. She said, “The other Dunkin’ Donuts I work at the button is right on the register.” We waited for the manager to show her the button.
“Huh?” I said. “You work at two D&Ds?”
“Yep,” she said. “Forty hours there and 33 hours here.”
Lawyer mind kicked into high gear. I told her I would look into an unpaid overtime claim. Federal and state law allows most wage earners to collect time and a half for more than 40 hours worked in a week.
To my dismay, she is not eligible for overtime. Despite her working 73 hours a week at both stores, wearing the same uniform and saying “Hi, welcome to Dunkin’ Donuts, may I take your order please?” at both stores, she does not qualify under federal or state overtime laws.
Her job is virtually identical at both places, save for a banana button here or a manner of mopping the floor there. She gets paid the same crap minimum wage at each store, save for a nickel raise every six months, if she’s lucky.
But two different limited liability companies own the two different Dunkin’ Donuts stores. Unless the franchisor – the main Dunkin’ Donuts company – has direct involvement in cheating her out of her lawfully earned wages, the franchisor gets out scot-free.
For example, a guy who owned 12 McDonald’s in New York may have been instructed by the McDonald’s corporation headquarters in Oak Brook, IL to shave hours off of time cards to not pay overtime, according to www.topclassactions.com.
Back in May 2013, a worker named Jeffrey Schuyler filed a class action lawsuit against the McDonald’s franchisee and main headquarters Mickey Dees, the franchisor. So unless the main company instructs franchisees to deny overtime, our Dunkin’ Donuts worker is out of luck.
It is rare to catch a franchisor like McDonald’s in such heinous activities. The franchisor usually insulates itself from the nefarious acts of its business associates.
This is yet another example of how businesses engage in human rights violations, but find legal ways to escape liability for wage theft. We might say that much of modern American business structures are built around practices like this.
The cycle is simple, and oft repeated. Workers struggle mightily to gain a concession from the capitalist class, be it a minimum wage, a 40-hour work week or workers’ compensation laws.
Then, gradually, the business owners figure ways around these laws. How about an individual who owns three fast food franchises, of the same denomination? In one week, suppose he forces an employee to work 30 hours at one store, 25 hours at the second store and 38 hours at the third store?
So our hard-working minimum wage earner at the hypothetical fast food joint above has worked 93 hours in one week. But, the franchisee says you don’t get overtime, because they are three different LLCs.
In reality, he loses. It’s called a single enterprise. Same owner, three different LLCs still means same employer. But our exploited wage earner still loses.
The wage earner must find a lawyer who will work on speculation (file the claim now and hope to get paid in the future). Those are rare.
Even for a middle-class white collar worker, who has a good claim for discrimination before the Commission on Human Rights and Opportunities, most labor lawyers want a $3,000 retainer. Who has that kind of change sitting around waiting to be spent on justice? Not many people.
The bad joke in the legal industry: “You want justice? How much can you afford?” Employers know this. Some employers go out of their way to hire people they know will be ignorant of the law.
The franchisee who runs the single enterprise wins if the exploited employee does not know how to file an unpaid overtime claim at the federal or state departments of labor.
Any claim takes months to resolve, and all the while, the franchisee gets to keep the money they have stolen from the employee. Wage theft in its many forms is a huge, but often overlooked problem when discussing the income inequality in this country.
Aside from our federal government’s failure to raise minimum wage, the imbalance of bargaining power between the business class and their workers is a huge problem. Paul Krugman of the New York Times summed it thusly this week:
“Since the late 1970s real wages for the bottom half of the work force have stagnated or fallen, while the incomes of the top 1 percent have nearly quadrupled (and the incomes of the top 0.1 percent have risen even more).”
Yet, to hear many tell it, the rich deserve their monies because they earn it. Krugman calls it the myth of the deserving rich. “America’s affluent are affluent because they made the right lifestyle choices. They got themselves good educations, they got and stayed married, and so on. Basically, affluence is a reward for adhering to the Victorian virtues.”
But who wants to tell me out friend at Dunkin’ Donuts who works 73 hours a week standing on our feet isn’t working hard? Yet it is highly unlikely she will ever climb two or three rungs up the ladder of social mobility even working 73 hours a week.
One small health-related issue, and boom, she’s knocked back a rung. We can say it is just that she should be paid overtime for the 33 hours extra hours per week she works for Dunkin’ Donuts to make ends meet.
Dunkin’ Donuts benefits from her excessive time investment, but does not reward her so, hiding behind the cloak of franchisees. It would take a lot of legal manuevering and policy shifting to change the situation so franchisees are on the hook for overtime.
How hard would McDonald’s fight this? The same restaurant chain told its underpaid employees to save money by returning unwrapped Christmas gifts. This is the kind of “deserving rich” we have setting policy. It makes me sick.
A better form of justice for our friend at Dunkin’ Donuts would be a living wage for the 40 hours she already works. Instead, our friend is virtually sweatshopped into hawking donuts for minimum wage.
What kind of quality of life does she have? Many conservatives will still have the gall to call her a member of the undeserving poor, that mythical class of people who have made poor lifestyle choices and deserve their poverty.
It is time we change the debate in this country. But as long as those who enjoy the fruits of exploitation control the media, the politicians and the means of production, we still have a long way to go.