By Rachel Brahinsky

WITH HER PINK plastic rectangular earrings, two-toned hair, and flashy pink-and-lime running shoes, Alison Furnback doesn't immediately seem like a key player in the labor movement. The daughter of a New Jersey construction worker, Furnback has supported herself with several jobs over the years, including a four-year stint at the Cheesecake Factory restaurant downtown.

But once you get her talking about her life as a waitress, Furnback morphs from young urban hipster into an articulate and sophisticated analyst of working conditions in the service sector. And now, after banding together with coworkers in filing a series of complaints against her employer, she's joining a wave of workers taking a stand that's beginning to have a real impact on the lives of low-wage laborers in California.

The Cheesecake Factory, part of a national chain that specializes, of course, in chunky slices of rich cheesecakes, takes up a massive section of the top floor of the Macy's building in Union Square. Stepping off the escalator from a fifth-floor couch display into the restaurant is a lesson in patience. On a recent afternoon crowds of shoppers sprawled in haphazard formation in the darkly marbled waiting area. At least a dozen white-clad servers and bussers strode past at a frenetic pace carrying entrées and triangles of cheesecake that weigh literally one pound each. As each table was emptied, restaurant hosts plowed through the crowds yelling customers' names over the din.

Behind the scenes there's another kind of chaos.

According to staffers, and according to 111 claims filed with the state labor board, for many years it was standard Cheesecake Factory policy to keep workers on the job for full shifts without allowing them rest or lunch breaks – defying California law. Workers and worker advocates we spoke to say such treatment is epidemic throughout the industry.

The difference here is that Furnback and others – using a state law passed just a few years ago – are demanding more than half a million dollars for lost breaks and penalties from the company. In doing so, they're allied with thousands who have been challenging employers on their abuses of the law, particularly in restaurants and "big box" stores.

"What happened in our restaurant goes on in restaurants all over the country," Furnback acknowledged. "So I think it's more about us pursuing overall justice."

At her workplace, she said, the dissatisfaction goes beyond the break policy. "I just wish the restaurant would care for the workers as much as they care about profit, because I think the two go hand in hand," she said.

She and her coworkers are also fighting for a code-of-conduct agreement to outlaw discrimination against the largely immigrant crew that busses and cleans tables, and to help employees assert their rights without fearing being fired.

San Francisco Cheesecake Factory general manager Jeff Resnick referred us to the company's legal department for comment. Attorneys there insisted employees have always been allowed rest time and refused to discuss individual claims. "Our workers have always been provided with breaks under California law," Sidney Greathouse, director of legal services, said. Greathouse also said he isn't aware of any charges of discrimination or any other labor problems at the store.

But the San Francisco site is not the only Cheesecake Factory where employees have complained. Two southern California lawsuits have been filed against the corporation, representing workers at several restaurants. If the cases are merged and allowed to be filed as a class action, attorney Eric Kingsley, who filed one of the suits, estimates the company could be liable for as much as $10 to $20 million in back pay and penalties for some 5,000 workers statewide.

Gimme a break

The story of the Cheesecake Factory – as laid out in its 18-page thickly laminated menu, which boasts 36 kinds of cheesecake – is a tale of humble beginnings. Searching for a way to earn some money for her young Detroit family in the 1940s, Evelyn Overton hit on a recipe for fabulous New York-style cheesecake. She was a success, and the family business grew, eventually expanding into a national restaurant chain. Now the company, based in Calabasas Hills, near Los Angeles, manages 76 restaurants in 24 states.

Still, staffers say that until about a year and a half ago, when the claims were filed, the San Francisco location had a "family" feeling. Marilyn Smith – a senior server who has worked there since 2000 and embraced the "family" vibe – now believes "they lied to us."

Smith told the Bay Guardian she figured it out back in March 2003, when she said she was told to come to work an hour early, spend 30 minutes doing prep work, and then take a half-hour lunch break before starting her regular shift. The break was unveiled as if it were a reward for staff, Smith said, as a treat that might boost morale. But something about it – having to come in an hour early in order to get a break – just seemed odd.

"We thought [the old schedule] was OK at the time, until they told us to come in an hour early to fold napkins," she recalled. So she did a little research and learned that for every four hours on the job, workers are owed a 10-minute paid break; after six hours they've earned a 30-minute unpaid lunch. If any of these are missed, the law promises a full hour's pay for each lost break.

Smith and dozens of others then filed claims with the state's labor law overseers at the California Department of Industrial Relations and eventually sought help from Young Workers United – a group that works with youths and young adults, largely in service-sector jobs. The group, which played a major role in the campaign to increase the San Francisco minimum wage last fall, seems to have become a thorn in the side of Cheesecake Factory managers, handing out flyers to customers about labor and other alleged problems in front of the store on a regular basis.

Even with this outside help, the claims remain dormant in the hands of the labor department, which has held on to them for more than a year. Spokesperson Susan Gard says her staff is working through a backlog exacerbated by the dot-com bankruptcies of 2001, but she says hearings on the Cheesecake Factory cases are slated for November. Workers are seeking a total of $530,432, or about $5,000 each.

Deforming reform

If the Cheesecake Factory workers get the money they believe is due to them, they'll owe a debt to the Democratic-controlled California legislature. For all its flaws, that body has passed a series of pretty decent labor laws. The vast majority of states don't have break laws, and federal law doesn't mandate breaks.

Dave Pogrel, an attorney with the San Francisco-based Employment Law Center, deals with the labor agency on a regular basis. "There's a host of violations in the restaurant industry, a lot of overtime violations, failure to pay the minimum wage," Pogrel told us. "In recent years [dealing with the labor agency] certainly has been cumbersome and slow. But we are lucky to even have a process."

If Gov. Arnold Schwarzenegger has his way, things might move more quickly at the labor board, but that won't likely be in workers' favor. This spring he held the state budget hostage over a little-known portion of the labor code termed the "sue your boss" law. The repeal of that law (which was finalized Aug. 12) is only part of the governator's plan to make the state more "friendly to business." Another small piece is an effort to "clarify" parts of state regulation, most often in employers' favor.

Several sources we spoke to told us the governor's labor agency appointee is trying to shorten the statute of limitations for claims for lost breaks from three years to just one. There's also an effort to cut back on penalty fees.

It's likely the move is a response to the large number of claims made since the break law was strengthened. Since October 2000 the state has levied nearly $4 million in penalties for 2,278 violations, including 180 in San Francisco.

And the promise of large cash settlements has brought attorneys like Kingsley to the fore. "To be fair, it's not the sweatshop days of 80 or 90 years ago," he allowed. "On the flip side, these are laws that have been on the books a long time, and they should know."

Kingsley has filed at least a half dozen cases against restaurants and other violators of the break law and says he and other attorneys have already netted millions for ripped-off employees.

The Hard Rock Café, Olive Garden, Chili's, and other major chains have all been targeted. Blockbuster and Best Buy have been dinged for huge settlements involving hundreds of workers. Worker advocates hope that if there's continued success here, where some of the strictest labor laws in the country are on the books, there could be hope for the rest of the country, where labor rights – from overtime pay to the basic right to organize a union – are under assault.

Even so, Kingsley's somewhat cynical about systemic change. "In America, if you want to make a lot of money, you really have to treat your workers like crap," he insisted. "Let's say the Cheesecake has to pay a couple million or more. They'll say that's the cost of doing business."

Perhaps, but for low-wage workers, a $5,000 settlement is a significant chunk of change. And you only have to look to the local Cheesecake Factory case to find signs that the break-time cases are beginning to make a difference.

Remember that the reason employees discovered they had rights was when the restaurant implemented a system to provide those oddly timed pre-shift breaks. Cheesecake Factory attorneys say that was just one in a series of regular changes, but others watching the situation say the policy switch came just after other chains began to fall victim to large settlements.

Recently the company changed its policies again. In early August the firm began paying employees $15 an hour to work a special, un-tipped "breaker shift," so tables are covered while servers rest.

After spending weeks in front of the store handing out flyers, YWU is claiming an organizing victory. For the company's part, attorneys continue to insist that it always followed the law. But attorney Debby Zurzolo refused to explain why the recent change was made, or how breaks were given in the past, and simply repeated that the company has "always provided for both the meal and rest breaks."

Meanwhile, the 111 claimants are hoping for their pay and for greater respect for their positions in the industry. "Employers are getting lost in the desire to make money," Patty Senecal, a former employee and a claimant, told us. "This is not just one day a week. This is something that not only affects us financially but also emotionally.... There are so many systems that allow people to be exploited."

E-mail Rachel Brahinsky