Immigrants Win Back Stolen Wages, But Few May Report Violations During Pandemic

Before it went out of business last year, Kome Japanese Seafood Buffet in Daly City was a popular spot for families celebrating birthdays and graduations.

Ping Tam, 29, started working at the Daly City restaurant in 2012, prepping food in the kitchen for the sushi bar.

From his very first paycheck, Tam said, he noticed that his wages only covered eight-hour shifts. But Tam was clocking 10-hour workdays, six days a week, he said. And the wage theft went on for several years.

"I was angry, but also felt powerless,” said Tam, an immigrant from Hong Kong, speaking in Cantonese. “Many of us complained to management but nothing would change. They just ignored us."

After a four-year legal battle, Tam and more than a hundred sushi chefs, servers, dishwashers and other restaurant staff won a multi-million dollar settlement against Kome’s owners. It was announced last month by the California Labor Commissioner's Office.

In recent years, a series of well-known restaurants in the Bay Area, including Burma Superstar and La Taqueria, have settled or received fines for allegedly stealing wages from their workers.

But advocates and state officials in charge of upholding labor laws worry that vulnerable workers today will be less likely to report mistreatment, because the pandemic has resulted in widespread job insecurity.

The California Labor Commissioner's Office opened an investigation and payroll audit at Kome in 2016, after some employees complained that the restaurant’s owners were using workers’ tips to pay minimum wage salaries.

Building a case requires those impacted to cooperate with the labor agency and testify during hearings, said Winnie Kao, an attorney with the Asian Law Caucus in San Francisco. But workers may be afraid of losing their jobs or facing retaliation from their employers, and some are too scared to proceed, she said.

“Some of the most abused workers involve workers who are unfamiliar with the legal system, who are sometimes fearful of government agencies,” said Kao, who represented some of the Kome workers. “There can be language barriers or cultural barriers.”

Tam was one of a handful of Kome workers who were willing to step forward.

The nonprofit Chinese Progressive Association helped them organize. The workers passed out flyers outside the restaurant about the violations they said they experienced and garnered attention from the San Francisco Board of Supervisors, which passed a resolution urging San Franciscans to stop going to Kome until the Labor Commissioner’s citation was resolved.

Tam, who moved to the U.S. in 2008 in search of economic opportunities, said he decided to speak up about his experience after his employers retaliated against him and other workers, cutting their hours and even firing one employee.

When Tam testified in person against his former employers at a hearing last year, Kao said he held his ground and inspired others.

“He was really centered and just matter-of-fact about telling the truth,” said Kao. “Just a really strong, solid leader.”

The Labor Commissioner found that between 2014 and 2017, dozens of cooks, sushi chefs and dishwashers were paid a fixed amount that didn’t include overtime, even though they typically worked 55 hours per week. California law requires that most hourly workers be paid one and a half times their regular rate when they put in more than eight hours a day or more than 40 hours a week.

The restaurant’s owners also stole overtime from other staffers, such as servers and busers, and illegally counted the workers’ tips as part of their hourly wage, according to the investigation.

Under the settlement, Kome’s owners agreed to pay $2.6 million, mostly in back wages owed to 133 workers. The employers did not admit to any wrongdoing, however, said Cindy Elias, an attorney with the Bureau of Field Enforcement at the Labor Commissioner’s Office, who worked on the case.

The labor agency initially issued wage assessments and civil penalties totaling $5.16 million in the summer of 2018, but officials reduced the amount after the employers presented evidence that they had already paid employees some of that money.

Each worker will get on average $14,200. A first check was sent out in August, and a second payment will go out by the end of the year, said Elias.

“It's a huge victory for the unheard voices, the people that are most vulnerable,” she said. “You had workers who were brave enough to come forward and file a complaint. ... I mean the amount of courage and strength it takes for workers to do that.”

She added that all workers in California are protected by labor laws, regardless of their immigration status.

The restaurant owners named in the settlement are David Leung, Wendy Lai Ip, Gang Zhou, Jun Zheng, Bai Dong Zhang and Tiffany Leung. They did not return a request for comment sent to their attorney.

A spokeswoman for the California Restaurant Association said that restaurants who cheat not only harm their employees but also put other law-abiding businesses at a disadvantage.

“People should be held to account when wage theft occurs,” said the association’s spokeswoman, Sharokina Shams, in a statement. “Beyond the obvious damage done to the workers involved, there is damage to neighboring businesses as well since they are forced to compete with an operator who is failing to comply with laws.”

Wage theft costs the state’s workforce a whopping $2 billion in earnings per year, according to a 2017 report by the Economic Policy Institute, a nonprofit think tank in Washington, D.C.

Elias and Kao, with the Asian Law Caucus, worry that with millions of Californians unemployed, low-wage workers who do have jobs will be less willing to cooperate in investigations of abuse or retaliation.

“It's much more difficult for people to report labor law violations because they're very afraid of the consequences and losing their job, especially during this time,” said Elias. “I am sure that’s a consideration that workers are taking into account.”

Still, Ping Tam said the fact that he and his co-workers are finally recovering thousands of dollars in wages they were owed sends a message that employers can be held accountable.

“This settlement provides a credible signal that if owners exploit their workers, there will be oversight and workers will be compensated,” said Tam, who lives with his mother in a single-room occupancy hotel in San Francisco’s Chinatown.

“What I want out of this is to send the message that workers have rights that will be protected, that workers can have a recourse,” he said.