September 22, 2016

CWJC Attorney Billy Peard quoted in minimum wage violations investigation in Pioneer Valley

Some Chinese restaurants pay immigrant workers less than minimum wage

Wilfredo Zuniga came to the United States last year in search of something he couldn’t find in his native Honduras: a job that would allow him to send money back to his wife and three children without living in a city where “they’ll kill you for a cellphone.”

The search led him to Northampton, where he got a job busing tables at Zen Restaurant on lower Main Street. For a 72-hour week, Zuniga says, he was paid about $475 — far less than the $720 (or $880, with overtime pay) he would be entitled to under the state’s $10-an-hour minimum wage law. 

“How are we going to get that back?” Zuniga said of the wages he was never paid. “They think that we won’t do anything.”

Allegations of abusive pay practices surfaced after Zen closed abruptly on May 23. Zen’s owners did not respond to requests for comment for this report, but shortly after it closed, restaurant manager Erik Hong denied paying workers less than they were legally due.

Zen is not alone in facing questions about pay practices. A Gazette investigation has identified at least six other Chinese and Japanese restaurants where workers seem to be making less than the legal minimum — and that’s without taking into account the time-and-a-half overtime pay many employers provide for work beyond the standard 40-hour week. (See related story.)

The Gazette identified at least four Hampshire County restaurants whose managers acknowledged paying workers a sum that appears to be below the minimum wage: Oriental Flavor in Amherst, Oriental Taste in Northampton, Sakura Buffet in Northampton and Dynasty Gourmet in Easthampton.

Additionally, workers at three other establishments — Ginger Garden in Amherst, Tong Sing in Easthampton and the former Zen — reported wages that appear to be below the minimum. Ginger Garden management declined to answer questions from the Gazette, and the owner of Tong Sing did not respond to repeated requests for comment.

Workers and advocates say such practices are widespread at Chinese and Japanese restaurants. The Gazette attempted to interview owners or managers at 18 other Chinese and Japanese restaurants in Hampshire County. Some managers and owners either refused to comment or were said to be unavailable; others agreed to be interviewed but declined to comment on pay practices. Many workers also declined to speak when approached at employer-supplied homes that serve as de facto dormitories.

“The owner wouldn’t want me to say,” said an Oriental Taste chef upon answering the door at 198 State St. in Northampton, the same house where Zen formerly housed its workers. He identified himself only as Mr. Hu.

The reluctance to speak is not surprising, say legal experts, worker advocates and some of the workers themselves. They say many undocumented immigrants have been swept into an underground economy that offers jobs and housing in exchange for low pay, crushing hours and silent compliance.

Jocelyn Jones, a Northampton labor attorney who spent eight years as head of the Attorney General’s Fair Labor Division before moving to Northampton last year, said: “Whether it’s fear of detainment and deportation, fear of retaliation by one’s employer and of being left with no possibilities for work, isolation, and sometimes loss of housing, undocumented immigrants — while often performing work that no citizens want — justifiably and frequently believe they have far more to lose in many situations than to gain by reporting violations. Unfortunately, employers who purposely hire undocumented immigrants understand this far too well.”

Lin Geng, a former Zen sushi chef, said it took him 14 years to work his way up to a position where he was finally making the minimum wage.

“At the beginning I started to feel like, ‘Oh, I’m undocumented, I don’t deserve that,’” said Lin, 33, who emigrated from China and has worked in more than a dozen Asian restaurants in six states. After years of struggling to make ends meet, his perspective changed.

“I deserve that,” he said of the $10-an-hour plus some tips he was earning when Zen closed. “Everybody deserves that.”

Government labor officials say undocumented immigrants are entitled to the same pay and protections as American-born or naturalized citizens. But in reality, they say, some restaurant owners exploit immigrants’ need for work and fear of deportation to increase profits.

Some owners defend their pay practices by saying they provide workers with housing.

“They need somewhere to sleep,” said Sakura owner Limei Chen. Most Chinese restaurants are like that, she said, “so we just follow” that practice.

Emalie Gainey, a spokeswoman for the Massachusetts attorney general, says employers are allowed to deduct no more than $35 a week from a worker’s paycheck to cover housing — a sum that would not close the gap between actual wages and the minimum at the restaurants identified by the Gazette.

“That mentality was not dissimilar from the mentality that existed in the 1800s in the South,” Billy Peard, an attorney with Central West Justice Center in Springfield, said of the “free housing” defense. “The notion that I don’t have to pay my worker the full minimum wage because I’m providing them with valuable goods and services in lieu of wages — while a good rationalization, it is illegal.”

The pay practices discovered by the Gazette may get the attention of state and federal labor and law enforcement officials. The revelations come at a time when state lawmakers and municipal officials are also trying to root out instances of “wage theft” through toughened laws and more aggressive enforcement.

“We seek to level the playing field for law-abiding employers,” said Carlos Matos, director of the Boston district office of the U.S. Department of Labor Wage and Hour Division. “Say you have several restaurants on a street. The employer who underpays his employees is hurting not only them, he’s also undercutting the restaurant that is doing the correct thing and paying its employees their legally required wages.”

An ingrained practice

In interviews with the Gazette this spring and summer, owners of four Hampshire County restaurants acknowledged paying kitchen workers amounts — mostly in lump sums between $1,500 and $2,000 a month — that appear to run below the legal minimum.

Cheng Hui Zheng owns Oriental Flavor restaurant in Amherst, along with Oriental Taste, which recently opened in Northampton in the former Zen location. He said he starts untipped kitchen workers at $1,500 a month for 50-hour weeks. The legal minimum for the same hours would be $2,000, or $2,200 with overtime.

Zheng defends his pay practice, saying he rents apartments for his workers at Amherst’s Rolling Green complex and charges them nothing.

“It’s like an Asian custom,” he said of providing housing. “I want them to stay here and work for me.”

Like other Chinese restaurant owners — not only in the Pioneer Valley, but throughout the Northeast — Zheng says he sometimes finds workers not just through local sources but also through the job agencies in New York City’s Chinatown that cater to immigrants.

The restaurant owners say they offer the workers a fair deal and better lives than they would have had in their native lands.

Jay Zhang, owner of Dynasty Gourmet in Easthampton, said working conditions have improved significantly since he came to the U.S. as a teenager with his father 18 years ago, recalling making as little as $3-an-hour at jobs found through agencies, and living in overcrowded company housing.

Now, he said he finds workers through the Chinatown agencies and pays them $2,000 a month for 72-hour work weeks — less than the $2,880 they would earn at the $10-an-hour minimum wage ($3,520 with overtime).

Paying workers’ wages and maintaining their housing — in addition to climbing food costs — are Zhang’s biggest expenses in an industry with shrinking margins.

“Profits are down,” he said. “Food costs and employee salaries are up.”

Workers interviewed say the pay rates rise and fall based not on what the law requires but on what the underground marketplace allows.

“Those who want to hire quickly offer more, and it’s all based on the market rate,” said Lin Geng, the former Zen chef. “Salaries go up and down with competition — it’s not based on minimum wage.”

Limei Chen, who owns Sakura Buffet in Northampton with her husband, said starting pay for kitchen staff at her restaurant is around $9 an hour.

“It depends on the experience,” she said.

Sub-minimum wages

Yao Zheng, 29, followed her parents to the Pioneer Valley nine years ago and has worked in Chinese restaurants ever since. When she began at one Holyoke restaurant about five years ago, she says she lived with her co-workers and made about $900 a month for 72-hour weeks, helping behind the line and working the counter, which landed her some tips in addition.

“Nine hundred dollars was pretty good back then,” she recalled. “I was young, and I didn’t know how to cook.” It was also well below the minimum wage, which at the time would have entitled her to at least $1,664.

Zheng, who hails from the Chinese city of Fuzhou, now makes $2,000 a month working as a server, hostess and kitchen helper at Tong Sing, a relative’s restaurant in Easthampton. She said she works 72 hours a week, and makes some tips from diners at the restaurant’s handful of tables to add around $500 to her monthly income.

A restaurant worker making the state’s legal minimum wage of $10 an hour would make $2,880 for the same hours ($3,520 with overtime). While tipped workers’ income depends partly on the generosity of customers, employers are required by state law to make up any difference between their tipped wages and minimum wage.

While Zheng said the work is hot and tiring, she had no complaints about her pay, saying it’s money she and her parents — who work alongside her in the restaurant — wouldn’t otherwise have.

“My parents couldn’t find a job,” she said. “So we left China.”

Restaurant owner Wen Ping Zhang did not respond to requests for comment, including both letters hand-delivered and mailed from the Gazette.

Yao Zheng’s story is not uncommon.

Hw (Kenny) Yang, 27, works at Oriental Flavor in Amherst as a host and cashier. He came to the U.S. three years ago with his family, he said; unlike many others, he has a work visa. He found his job through a Chinatown agency, and while his income varies with tips, he said he makes about $1,600 per month for about 200 hours of work — less than the $2,000 ($2,200 with overtime) he might expect under the minimum wage law.

Yang lives with three of his co-workers in a three-bedroom apartment at Rolling Green in Amherst provided by restaurant owner Cheng Hui Zheng.

Yang seemed ambivalent about his current pay, saying through a translator that he needs to learn English before he can make more.

“Everybody speaks Chinese so it’s difficult to practice,” he said. “For now, (the job) is good. I want to learn more English. Maybe in the future I’ll change my mind and my work.”

Four former Zen employees interviewed for the story — all undocumented workers from Honduras who worked as dishwashers, cooks and one as a busboy at Zen — said they received pay ranging from $1,800 a month to $2,400 a month in the time before the restaurant closed May 23. Those salaries appear to fall well under the legal minimum, $2,880 ($3,520 with overtime) for the shortest possible month — four 72-hour weeks.

After Zen closed suddenly, Wilfredo Zuniga traveled to the New York City agencies, where he found a job back in the Pioneer Valley, at Ginger Garden in Amherst. He worked there for only two days, though, saying the pay — $1,900 a month — was too low for the 72-hour work weeks he was expected to turn in busing tables and washing dishes.

The Gazette called and twice visited Ginger Garden, including once to hand-deliver a letter seeking comment, but management declined to answer questions.

Restaurant work is hard, Zuniga said, but at least it’s a living — and a better one than he can get in his violent and impoverished home.

“There’s a lot of poverty in Honduras — it’s not like here,” Zuniga said in Spanish, adding that the cities are so violent he and his family avoid them at all costs. “You can be intelligent and educated but there’s no skilled work.”

Zuniga is employed anew at a restaurant in Springfield which he describes as more laid back and where he makes $1,800 a month. He declined to name the eatery for fear of losing the job.

Juan Carmelo, who identified himself as a prep cook at Ginger Garden, answered the door in late June at the restaurant’s employee housing at 5 Mill Valley Road in Hadley. He said he made $1,800 a month for between 240 and 288 hours of work — well under the $2,400 to $2,880 (not counting overtime) minimum wage.

But Carmelo wasn’t complaining.

“I’m accustomed to work,” said Carmelo, who worked planting crops in Guatemala before coming to the U.S. “I’m just chilling and working, and then I’ll go back.”

The Gazette returned to the home for a follow-up interview three weeks later, only to find that he had left the job and moved out of the house.

Zuniga, the former Zen busboy, said he endures the low pay, hard work and transitory nature of the industry by reminding himself it’s all temporary.

The goal, he said, is to work here for three years and then return home to his wife and children. The village where he’s from, El Guantillo, is a beautiful place in a rural part of central Honduras, but everyone knows to avoid the cities.

“They’ll kill you for a cell phone,” he said.

Still, he said, his family is safest where they are, because illegally crossing the border is dangerous, especially because of the criminal gangs that prey on migrants.

The trip across country lines, he said, spans about five days and costs around $1,000. “Many people die in Mexico,” he said.

One American dollar, he estimated, is worth about $25 in Honduras. Therefore, he said, it’s worth it for him and his family to keep working and sending what he can home.

But it isn’t always easy.

Some mornings, he said, “You don’t want to wake up.”

Contact: adrane@gazettenet.com.