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Battle over ServSafe fees spills into federal court

The National Restaurant Association has been sued for using the proceeds to fund its lobbying. The plaintiffs want the practice stopped and reimbursement of the $15 that any employee paid for the course.
The suit has been filed in U.S. District Court for Southern New York. / Photo: Shutterstock

Assertions that the National Restaurant Association is tricking restaurant workers into paying for lobbying to hold down their wages have escalated into a federal court case.

A lawsuit filed last week seeks to block the association from using proceeds from its ServSafe food safety certification to fund the group’s advocacy efforts. Disallowing the trade organization from tapping those funds would put a severe crimp in its ability to protect and promote the industry’s political and governmental interests.

The suit also seeks reimbursement of the $15 course fee for restaurant employees who had to swallow the cost rather than having the expense covered by their employers. The percentage of workers who paid the charge themselves is unknown. More than 4 million restaurant employees have undergone ServSafe training.

"The allegations lack merit and we will be fully vindicated," the restaurant associated said in a prepared statement. "We believe the complaint is one part of a larger strategy driven by competitors and people with special interests to undermine ServSafe’s vital mission of keeping millions of Americans safe from food borne illnesses.”

The suit is the latest effort by restaurant workers and labor advocates to portray ServSafe as a ploy for raising lobbying dollars rather than a widely used tool for protecting the public from foodborne illness. Virtually every jurisdiction that mandates food-safety training accepts ServSafe certification as a way of satisfying the mandate. It has an estimated 70% market share.

The suit filed last week by two ServSafe alumni, Sean Gallagher and Piaget Ventus, flatly characterizes the training program as a ruse by the National Restaurant Association to generate revenues. 

“ServSafe is publicly marked [sic] as ‘training’ or ‘certification’ of basic hygiene and cleaning routines,” the complaint reads. “In actuality ServSafe is effectively a valueless service or product…rudimentary training of food handling and other tasks that would otherwise and ordinarily be common knowledge or learned on the job.

“In actuality, ServSafe served as a source of revenue for ‘a nationwide lobbying campaign to keep [service workers]’ wages from increasing,’” the filing continues.

The quote is from a 2014 report by the Restaurant Employment Opportunities Centers United, or ROC, an employee training group funded by Service Employees International Union, the nation’s second-largest labor union.

ROC, in turn, is the benefactor of One Fair Wage, a labor advocacy group that’s pushing to kill the tip credit and have servers collect the full minimum wage directly from employers.

One Fair Wage announced last week that it’s launching a $10 food-safety training program, called Just.Safe.Food, to compete with ServSafe. The venture is owned by an employee cooperative that will use the proceeds to fund lobbying for higher wages and ending the tip credit.

One Fair Wage’s president, Jaru Jayaraman, characterized ServSafe as a scam during a conversation last week with podcasters from the website Crooked.com.  She acknowledged going to The New York Times in hopes the revered news medium would do a story that revealed how ServSafe proceeds fuel the National Restaurant Association’s lobbying efforts, even though that’s been the case for nearly 16 years.

Jayaraman also stated in the Crooked.com piece that her group intended to sue the association because most workers who pay for ServSafe training are unaware that the money could be used for lobbying.

The Times indeed ran a story, entitled “How Restaurant Workers Help Pay for Lobbying to Keep Their Wages Low.” It noted, accurately, that the National Restaurant Association does not generate all of its funds from member dues, and that ServSafe fees end up in the kitty.

It characterized ServSafe as a course that delivers simplistic if not inherently obvious safety guidelines that restaurant workers should follow, such as bathing daily and recognizing that a white wooly growth on strawberries is mold.

It also cites experts’ assurances that the practice of using ServSafe funds for lobbying is not illegal.

The article carried a dateline of Jan. 17. On the morning of Jan. 18, One Fair Wage announced the launch of Just.Safe.Food, with course descriptions and a website already in place.

On the same day, the lawsuit from Gallagher and Ventus was filed in the U.S. District Court for the Southern District of New York, a court known as one of the most liberal in the nation. The filing seeks class-action status.

The New York Times told Restaurant Business that the rapid-fire sequence of events was a coincidence. “The Times does not share articles prior to publication, nor schedule the timing of our publications for any reason other than our own news judgments,” a spokespersom said in an email.

The article failed to note the connections between One Fair Wage, ROC and the Service Employees International Union.

Update: The National Restaurant Association's response to the lawsuit has been added. 

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