They were forced to share their tips and not count overtime, lawsuit says

Three former servers at Captain George’s Seafood are suing the Myrtle Beach restaurant and its parent company, claiming they were required to share the tips they received, they were not paid for all the hours they worked and were not paid the minimum wage set under law.

The federal Fair Labor Standards Act sets the minimum wage for tip-earners at $2.13 per hour. The three servers say they were paid $2.125 an hour while they worked at the popular seafood buffet in 2015, according to a complaint filed in federal court.

The lawsuit alleges the company and its owners, who operate the four Captain George’s Seafood restaurants along the southeast coast, required servers to give a percentage of their tips each night to the “house.”

“Servers regularly had to pay either 2 percent or 3 percent of their total sales for a shift to the restaurant out of their tips,” the complaint states. “For example, if they generated $1,000 in sales, and were tipped $200 from the customers, they would be required to pay either $20 (2%) or $30 (3%) to the restaurant out of their tips.”

The company required servers to share tips with managers and “other non-tipped employees,” who were “not properly included in the servers’ tip pool,” according to the complaint.

As a result of the tip-out policy, the lawsuit contends, the restaurants “regularly receive more money from their servers in misappropriated tips than they pay to their servers in wages.”

Chris Gagliastre, Zachary Tarry and Olga Zayneeva, who all worked at the Myrtle Beach buffet, claim they were also required to “work off the clock” and when they were compensated for overtime, they were “paid at the incorrect overtime rate.”

Gagliastre worked as a server at Captain George’s in Myrtle Beach from March 2015 to August 2015, according to the lawsuit.

“At the end of each shift, Gagliastre had to give 3 percent of the sales he obtained directly to the restaurant out of his tips,” the complaint states. His overtime hours were “rounded ... down so that he would not be paid overtime pay.”

The lawsuit says Zachary Tarry worked as a server at the Myrtle Beach restaurant from August 2014 to the summer of 2015, when he became a bartender and assistant manager at Captain George’s.

“As a manager, he collected this house tip-out money from the servers, placed it in an envelope, and placed it in the restaurant’s safe,” the lawsuit alleges. “When Tarry worked overtime hours as a server, he was required to clock out and work overtime off the clock.”

“On the occasions where Tarry did work overtime hours that were properly recorded, he was paid overtime at $3.188 per hour, which is the wrong overtime rate,” the complaint alleges. But, as a manager, he was paid a flat rate and given a percentage of the house tip-out, according to the lawsuit.

Olga Zayneeva began working as a server at the Myrtle Beach restaurant in June 2015.

At the end of each shift, Zayneeva had to give either 2 percent or 3 percent of the sales she obtained directly to the restaurant out of her tips, according to the lawsuit. Her overtime hours were also rounded down, the complaint alleges.

“Even if Defendants had paid tipped minimum wage, Defendants failed to satisfy all of the requirements in taking a tip credit from servers’ wages,” the lawsuit contends. “Specifically, Defendants failed to notify servers that they would be taking a tip credit from their wages, failed to compensate servers for all hours worked, misappropriated servers’ tips and forced servers to share tips with managerial and/or other employees who are not eligible to share in the tip pool, required servers to spend more than 20 percent of their time at work in a non-tipped capacity, and failed to pay proper overtime to employees who worked greater than 40 hours in a week.”

The servers are seeking “appropriate monetary, declaratory and equitable relief,” the lawsuit states.

Captain George’s Seafood was founded by George and Sherry Pitsilides in 1979, according to the complaint. The company they formed now operates a seafood buffet restaurant in Myrtle Beach, Kill Devil Hills, North Carolina, Virginia Beach, Virginia and Williamsburg, Virginia with 400 employees that swell to 800 employees in peak tourist season.

This story was originally published October 18, 2017 at 7:22 PM with the headline "They were forced to share their tips and not count overtime, lawsuit says."