The legality of the stagiaire.
Would you believe the meals served in many of America’s most prestigious restaurants are prepared with the use of illegal labor? By and large, they are — and no, that’s not a reference to undocumented workers. Instead, many of the workers prepping mise en place in restaurants across the country are illegally working for free, as part of their role as stagiaires.
A stagiaire, or stage (pronounced “staahj”) for short, is an unpaid kitchen intern. These ambitious cooks work at restaurants anywhere from one night to several months without receiving any compensation. Not surprisingly, stages aren’t manning the breadstick station at the local Olive Garden. To the contrary, stages are the hallmark of fine-dining restaurants: a Michelin-starred restaurant will most likely have at least one stage in its kitchen on any given night, and many of America’s best restaurants have an ever-changing roster of stages constantly passing through the kitchen doors. Nevertheless, under long-standing federal law, it is illegal for American restaurants to host stages.
Stages are commonplace in most Michelin-starred kitchens, but it’s actually illegal for American restaurants to host stagiaries.
This raises several important questions. Where did staging originate? Is it somehow repugnant to a fundamental capitalistic idea of work-for-pay, or is it a beneficial act that should be tolerated and even encouraged? And given recent lawsuits about the illegality of unpaid interns in other industries, what does the future of staging in the United States look like?
Origins & Importance
The exact origins of the modern-day stage are relatively elusive, but staging predates America’s fine-dining restaurants. The concept originated in France (stagiaire is French for trainee or intern), and although staging is still very much an international phenomenon, it has also taken hold in the United States. Stages perform a variety of kitchen tasks. They generally pick herbs, peel vegetables, strain stocks, and sweep floors. If a stage is actually being considered for a paid position, he or she might also be thrown into the fire and cook a bit as well, but this is the exception rather than the rule.
However, stages also learn a great deal from the restaurants that host them, and knowledge sharing is really the essence of staging. Many chefs performed career-changing stages long before commanding brigades of their own, suggesting the system is at least partially responsible for America finally making it onto the world’s culinary map. Grant Achatzfamously staged at Ferran Adrià’s modernist elBulli; Tom Colicchio with French legends Michel Bras and Alain Ducasse. And many accomplished chefs continue to take time off from their own restaurants to stage elsewhere.
Vince Nguyen, a sous chef at Daniel Patterson’s two-Michelin-starred SF restaurant Coi, has staged at Redzepi’s acclaimed Noma and Australia’s Royal Mail. “Coi is the type of restaurant where years, not months, are committed,” he says of why many Coi chefs have stage experience. “So, it’s important that the chef has had a chance to see other kitchens, whether through employment or staging, before making such a commitment.” Nguyen, who temporarily moved to Copenhagen and Australia for his staging gigs, describes the “immersive” experience. “I feel very grateful that the concept of staging exists, and I’ve seen a maturation in myself because of it,” he says. “While at Noma, I was introduced to so many new ingredients and techniques, and I was in a constant creative and inspired state because of that. But I would say I primarily benefited from just seeing what it took to be the best. That’s something one can’t learn from a cookbook.”
As Nguyen’s experience suggests, staging is also commonplace in America’s most renowned restaurant cities. Everyone from René Redzepi to LA chef Michael Voltaggio has made a trip to Napa Valley to stage with the French Laundry’s Thomas Keller. Likewise, it would be difficult to find a Michelin-starred restaurant in Chicago without cooks who had, at one point, staged at Charlie Trotter’s eponymous restaurant. In many ways, America’s top-tier restaurants have symbiotic relationships; they share cooks, and concomitantly, knowledge.
Although the stagiaire system is venerable, it’s also illegal. The Fair Labor Standards Act (FLSA) is a federal law that requires all employers to pay at least the federal minimum wage to workers, a requirement that’s absolute and cannot be waived. However, the FLSA’s wage protections apply only to “employees,” vaguely defined as “any individual employed by an employer.” The task has largely been left to the courts and the Department of Labor (DOL) to interpret what that really means, and a burgeoning line of cases suggests most stages would definitely be considered employees under the FLSA.
In 2011, unpaid interns for the 2010 movie Black Swan — who knowingly and voluntarily worked for free on the production team — filed a lawsuit claiming they were entitled to minimum wage under the FLSA. During the case, the judge analyzed the legality of the production internships under guidelines issued by the DOL. Those guidelines instruct courts to consider the following six factors:
1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in aneducational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
The judge determined that Black Swan‘s unpaid production internships failed the first four DOL factors and, as a result, violated the FLSA. As a matter of law, the interns were considered employees under the FLSA and, as such, were entitled to the Act’s minimum-wage protections.
The Black Swan case and the cases that followed it are harbingers of the legal challenges that some of America’s finest restaurants will soon face. Indeed, the Black Swan interns performed work analogous to work performed by stages; they reviewed and filed paperwork, ran errands, and kept the coffee pot full (read: peeled vegetables, strained stock, and swept the kitchen floor). The courts in all of these cases have, to some extent, applied the DOL guidelines. Therefore, regardless of the guidelines’ shortcomings, they are the governing law, at least for the time being. Unfortunately, stagiaireprograms almost certainly fail the DOL guidelines.
For starters, the programs fail the first “school credit” factor — something a stage certainly does not receive. Regarding the second factor, courts generally find that the “incidental benefits” of an unpaid internship, such as gaining industry insight, learning basic work skills, and making professional connections, are insufficient to make the internship legal. The third factor also points toward illegality, as many stages do in fact displace regular employees. And finally, a restaurant certainly receives an immediate advantage from its stages, as they actually perform meaningful kitchen work. As the Black Swan case made clear, the fifth and sixth DOL factors will not save a program from illegality. Therefore, as the law stands today, staging in America is unquestionably illegal.
Restaurants have been spared from litigation so far because of the culture of compliance that permeates the industry. Cooks know if they speak up, they risk being blacklisted. And why shouldn’t they? Chefs are understandably reluctant to hire someone who, in the past, voluntarily worked for free and then turned around and sued for back wages.
But the culture of compliance will not protect the industry forever, and unpaid wage claims will hit America’s best restaurants: It is not a matter of if, but when. The newest generation of cooks have proven to be more willing to allege unfair working conditions. And the recent uproar over New York City restaurant Roberta’s soliciting unpaid garden interns suggests that public opinion is also strongly opposed to staging. The sheer number of stages passing through the industry’s upper echelonincreases their liability exposure by making them attractive targets for class-action suits.
“Stages are going to happen, legal or not. But is it important to [make] stages legal in my opinion? Very much so.”
“Stages are going to happen, legal or not,” says chef Justin Woodward, who currently leads the kitchen at Portland’s Castagna but previously staged at Noma and Mugaritz. “But is it important to [make] stages legal in my opinion? Very much so. A place like Noma or Mugaritz is what it is because of stages. A restaurant with a surplus of manpower is capable of reaching new heights, and it would be great to see more restaurants like that in the United States… I would like to see American cuisine raised to a higher level, and permitting restaurants to host stages would help bring this about.”
Unfortunately, once the litigation starts, the modern-day stage will likely become a thing of the past, just as the film, design, fashion, publishing, and sports industries have largely eliminated their unpaid internship programs. Tomorrow’s stage will be either entitled to a minimum wage or, in an effort to satisfy the DOL guidelines, forbidden from performing any actual work. Either way, these changes will cause a sharp decline in the amount of opportunities for meaningful knowledge-sharing in the culinary world. Many restaurant owners and chefs hope the federal appellate courts will abandon the DOL guidelines, and currently, the Second Circuit Court of Appeals — in considering an appeal of theBlack Swan case — may do just that. Only time will tell.