The attorney currently representing 77 employees who contend they were cheated out of their wages at Hyman's Seafood has filed a separate suit against Hank's Seafood Restaurant for allegedly operating an illegal tip pool.
According to former server Andrew Browder's complaint, during his employment from 2010-2014, servers were required to nightly contribute a portion of their tips to a tip pool. The mandatory contribution included $5 for the expediter, the non-cook on the kitchen line responsible for organizing orders and garnishing dishes. The lawsuit filed by Bruce Miller says the expediter's share was disbursed among other back-of-the-house employees when an expediter wasn't scheduled.
"Bottom line, it's all about trying to make more profit," attorney Bruce Miller said. "It's the restaurant asking servers to pay the wages of the back-of-the-house."
Hank's owner Hank Holliday yesterday released a statement maintaining the tip pool was structured in "proper and legal" fashion. He noted the restaurant has never been sued by a current or former employee in its 16-year history.
"We view the lawsuit to be frivolous, and we have instructed our attorneys to vigorously defend it," he said.
A Department of Labor spokesman confirmed the agency has no record of an inquiry or complaint involving Hank's.
Under federal law, restaurant owners are allowed to pay tipped employees less than minimum wage, provided that tips bring their hourly pay to $7.25 or more. But employers can't claim a tip credit if staffers are subject to an invalid tip sharing scheme. As a Department of Labor publication explains, "Where a tipped employee is required to contribute to a tip pool that includes employees who do not customarily and regularly receive tips, the employee is owed all tips he or she contributed to the pool and the full $7.25 minimum wage."
The Department of Labor lists dishwashers, cooks, chefs and janitors as examples of "employees who do not customarily and regularly receive tips."
Browder's lawsuit seeking damages argues that Hank's expediters belong in that category. "(They) wore kitchen attire and did not leave the kitchen at any time," it says.
The lawsuit further alleges that because the tip pool negated the tip credit provision, affected employees should be eligible to receive overtime pay for time worked in excess of 40 hours a week.
Miller is currently handling wage theft-related cases against six restaurants in Charleston and Myrtle Beach. He anticipates filing suit against another area restaurant this month.