When New York Times editors were defending the paper's two-part series on alleged labor abuses in nail salons last year, they repeatedly pointed to the high rate of violations uncovered by a state inspection task force.
That task force, which was formed in reaction to the paper's coverage, "issued nearly 1,800 violations after inspecting some 755* salons," noted a letter co-signed by three top editors at the paper. They were responding to an attack in The New York Review of Books by Richard Bernstein titled, "What the Times Got Wrong about Nail Salons." A spokesperson for the paper later used the same defense when responding to my own critical appraisal of the nail salon series.
After Bernstein and I demonstrated that the original articles, written by reporter Sarah Maslin Nir, were filled with blatant mischaracterizations and misquotes from key sources, presenting an extremely skewed depiction of the industry, the Times editors clung to the notion that the state's findings demonstrated that Nir basically got the story right.
Now the Times has taken a close look at those labor inspections and discovered that they "reveal another reality" that doesn't match up with Nir's findings. As reporters Russ Buettner and Kim Barker explain, immigrant nail salon owners were often tripped up by the technicalities of New York State wage and hour regulations and they often paid their workers by the day and in cash, thus setting themselves up for trouble:
Many owners, even some of those making efforts to pay decent wages, simply failed to grasp the technical details of state labor laws. Many salon owners, for example, seemed unaware that they must pay one full hour of bonus wages when an employee's shift spans more than 10 hours.
Nail workers routinely work days that stretch longer than eight hours and are paid in flat daily or weekly wages, a combination that does not square with state labor laws on overtime pay and essentially guarantees a violation, even when employees are paid a rate that works out to more than the state minimum wage.
In two dozen cases, for instance, owners paid employees an equivalent of at least the state minimum wage and overtime for the hours they worked, but because they did not correctly account for the overtime hours, they were still cited for underpayment.
If you exclude those two dozen cases, Buettner and Barker report that 67 nail salons, or a little more than one quarter of those investigated by the state, paid less than the minimum wage. And of those 67, 25 missed the mark by less than $50.
In other words, the original Times story argued that three-quarter of nail salons in New York paid less than the minimum wage, but the state inspections have found roughly the opposite to be true.
Buettner and Barker don't mention another aspect of New York State wage and hour law that further complicates the picture. Inspectors counted only the first $2.15 per hour in tips as compensation towards the minimum wage. Anything above that amount—and many manicurists receive substantially more in tips—was disregarded. So even a worker technically making less than the minimum wage may very well may be earning more than the minimum wage in actual compensation.
Buettner and Barker include various misleading details that help conceal the implication of their findings—and the extent to which they repudiate the paper's earlier coverage. Many nail salons didn't keep detailed payroll records, so investigators had to interview the workers to find out how much they were paid and the number of hours they worked per week going back years in some cases. This is a wildly unreliable methodology (do you recall how many hours you worked last week?), and if further calls into question the inspection data's accuracy.
But the Times implies that workers tended to inflate what they were paid and minimize the number of hours they worked because they were afraid of being punished by their employers. "Without records," Buettner and Barker write, "investigators had to accept whatever employees told them they were paid, usually in front of their bosses."
Actually, state investigators don't typically interview employees in front of their bosses. When they conduct a surprise inspection at a nail salon, the standard procedure is to immediately separate the owners and workers and interview them in different locations. And the Times doesn't mention that workers also have a financial incentive to underestimate their past compensation. If a salon owner is found guilty of underpayment, the workers are often entitled to tens of thousands of dollars in back pay with interest.
For more on what the state labor inspections really reveal about the nail salon industry, read part two of my three-part appraisal of the Times' coverage of this issue. For more background on the whole controversy, watch the video below.
* The new story notes that the state inspected 395 salons between May and December, and 230 of those inspections have been closed and were analyzed by the Times. Yet all the way back in July, the Times editors erroneously claimed that the number was 755 in their letter to The New York Review of Books.