declaration of jonathan dewolf in support of plaintiff and cross defen

Cal. Super. - 1st Dist.June 17, 2021

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 _______________________________________________________________________________________________________________________________________________________________________________________________________________________________________ DECLARATION OF JONATHAN DE WOLF ISO MOTION FOR SUMMARY JUDGMENT McGuinn, Hillsman & Palefsky 535 Pacific Avenue San Francisco, CA 94133 (415) 421-9292 Cliff Palefsky (State Bar No. 77683) Keith Ehrman (State Bar No. 106985) Matt Koski (State Bar No. 262803) McGUINN, HILLSMAN & PALEFSKY 535 Pacific Avenue San Francisco, California 94133 Telephone: (415) 421-9292 Facsimile: (415) 403-0202 Emails: cp@mhpsf.com keith@mhpsf.com mkoski@mhpsf.com Attorneys for Plaintiff JONATHAN DE WOLF SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO JONATHAN DE WOLF, Plaintiff, vs. SAISON HOSPITALITY, LLC, a limited liability company, and DOES 1 through 10, inclusive, Defendants. CASE NO.: CGC-20-583090 DECLARATION OF JONATHAN De WOLF IN SUPPORT OF PLAINTIFF/CROSS-DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON CROSS- COMPLAINT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Date: Time: 9:30 a.m. Dept.: 302 Complaint Filed: February 20, 2020 I, Jonathan DeWolf, declare as follows: 1. I am the plaintiff/cross-defendant in this action. I have personal knowledge of the facts set forth below and could competently testify to those facts if called upon to do so. 2. I have a background in the restaurant business and had known Joshua Skenes (“Skenes”) for many years prior to 2017. Skenes was a highly regarded chef and was working in 2017 with a company called “Saison Hospitality LLC” (“Saison”) which managed restaurants in May 11, 2021 ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 02/22/2021 Clerk of the Court BY: SANDRA SCHIRO Deputy Clerk 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 _______________________________________________________________________________________________________________________________________________________________________________________________________________________________________ DECLARATION OF JONATHAN DE WOLF ISO MOTION FOR SUMMARY JUDGMENT McGuinn, Hillsman & Palefsky 535 Pacific Avenue San Francisco, CA 94133 (415) 421-9292 California. In 2017, Skenes recruited me for the position of “Culinary Director” with Saison. I began my employment with Saison on approximately August 1, 2017 and continued at Saison until I was terminated on January 8, 2020. As Culinary Director, I had responsibility for helping to train the staff, oversee food products, and help ensure that Saison’s customer service guidelines were followed. 3. Throughout my employment with Saison, I had two immediate supervisors---Skenes and Jag Kapoor (“Kapoor”). It was my understanding that Skenes and Kapoor were two of the three managing partners and principals of Saison (and were also owners), and that they were primarily responsible for running the company. During my employment with Saison, I was never a member of Saison’s Board of Directors; was never a managing partner of the company; was never a senior corporate officer of the company; and was never an owner. During my employment with Saison, I was never given authority or power by Saison’s Board of Directors or corporate bylaws to exercise discretionary control over the company’s affairs. 4. Between August 2017 and June 2019, I resided in San Francisco and spent most of my time working with two of Saison’s San Francisco restaurants---“Saison” and “Angler S.F.”. However, in 2019, Saison was trying to open a new restaurant in Los Angeles called “Angler L.A.”, and so I was directed by Skenes and Kapoor to spend a substantial amount of time in 2019 working in both San Francisco and Los Angeles. 5. I typically worked long hours during my employment with Saison. Indeed, as of June 30, 2019, I had taken virtually no vacation time since joining Saison on August 1, 2017. During June 2019, I discussed with Skenes my intent to take a lengthy vacation in Montana in July 2019. Skenes told me that he was also interested in taking a vacation in Montana in July, and Skenes and Skenes’s wife and I did some joint planning for our Montana vacations, although Skenes and I planned to stay in different locations. Skenes also said that we might do a work-related photo shoot during our time in Montana in July (featuring some of the wild game that Saison’s restaurants served) to help promote Saison’s business. At no time did Skenes ever say or suggest to me in any way that he had any problem with me taking a vacation in Montana in July. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 _______________________________________________________________________________________________________________________________________________________________________________________________________________________________________ DECLARATION OF JONATHAN DE WOLF ISO MOTION FOR SUMMARY JUDGMENT McGuinn, Hillsman & Palefsky 535 Pacific Avenue San Francisco, CA 94133 (415) 421-9292 6. I intended to start my vacation on July 2, 2019, and was planning to begin the drive to Montana from my home in San Francisco that day. One of my co-workers, Paul Chung, was the Culinary Logistics Director for Saison. I knew that Mr. Chung was planning to have surgery on approximately July 29, 2019, and that he would be off work for a period of time afterwards. Because of Mr. Chung’s upcoming surgery, it was always my plan to return to California and resume work before Monday, July 29th. 7. During June 2019, I was working almost entirely in Los Angeles, helping with Saison’s effort to open its new restaurant, Angler L.A. I was still in Los Angeles at the end of June, but was planning to drive from San Francisco to Montana for my vacation. Therefore, I flew back to San Francisco from Los Angeles on the morning of July 1st, and then did various Saison-related work duties later that day, including going to Angler S.F. to take care of some work matters. 8. On Tuesday, July 2, 2019, I began my vacation. On the morning of July 2nd, I went to the Angler S.F. restaurant to pick up some dry aged antelope and other items that I thought Skenes and I might need for the Montana photo shoot, and then I began my drive to Montana. I spent several weeks on vacation in Montana during July before driving back to San Francisco to resume my work duties there. I arrived home in San Francisco on Wednesday, July 24th, which was the last day of my vacation. In total, I took 16 days of vacation in July 2019 for my Montana trip (not including July 4th, which was a holiday). On Thursday, July 25th, I resumed my normal work duties in San Francisco for Saison, and continued to perform my usual work duties on a daily basis from that date forward, i.e., throughout the rest of July and August 2019, until I took some additional time off in September 2019. 9. While I was in Montana on vacation in July 2019, I communicated several times with Skenes, who was also in Montana on vacation. Skenes and I were staying in different locations in Montana, but we did communicate while we were there, including about the possibility of getting together for some fishing. However, we never did get together in Montana. I also learned in early July that the work photo shoot that had been scheduled for Montana was being canceled. Skenes was one of my two supervisors throughout my employment at Saison. Skenes 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 _______________________________________________________________________________________________________________________________________________________________________________________________________________________________________ DECLARATION OF JONATHAN DE WOLF ISO MOTION FOR SUMMARY JUDGMENT McGuinn, Hillsman & Palefsky 535 Pacific Avenue San Francisco, CA 94133 (415) 421-9292 was aware-both before and during my Montana vacation-that I was taking a vacation in Montana in July. At no time---either before or after my employment-did Skenes ever object or complain to me about my taking this July 2019 Montana vacation, nor have I ever heard from anyone that Skenes had any problem with my taking that vacation. 10. My other supervisor during my employment at Saison was Kapoor. While I was in Montana on my July 2019 vacation, I had at least two phone calls with Kapoor, and I informed him, and made it clear to him, that I was in Montana on vacation. During our communications, Kapoor also made it clear to me that he understood and knew that I was in Montana on vacation. During at least one of my phone calls with Kapoor, he asked me how my Montana vacation trip was going, and Kapoor even told me that he had been invited once to spend time at a ranch in Montana. I had several work-related communications with Kapoor while I was in Montana, both by phone and e-mail. Attached hereto as Exhibits 1 and 2 are two work-related e-mails that I sent to Kapoor and other Saison employees while I was in Montana. At no point during my employment with Saison did Kapoor ever say or indicate to me that he objected to my taking this Montana vacation, or that he had any problem with my taking this vacation. Prior to filing my lawsuit against Saison in February 2020 (after I had been terminated), I had never heard that anybody at Saison had any problem with me taking my July 2019 vacation in Montana. 11. On approximately October 2, 2019, I sent an e-mail to Skenes and Kapoor in which I expressed several frustrations with my employment situation. A true and correct copy of that e- mail is attached hereto as Exhibit 3. In my e-mail, I pointed out to them how hard I had worked at Saison since joining in 2017, and I stated that when I took 16 days off during the past summer for my vacation (referring to my July 2019 trip to Montana), that was the first real vacation time I had taken since starting my employment. 12. At no time during my employment with Saison did I ever make any deliberate effort to “conceal” the fact that I was taking a vacation in Montana between July 2nd and July 24th, 2019, and I never had any intent to do such a thing. At no time during my Montana vacation did I ever tell or suggest to anyone that I was in California working when I was actually in Montana, nor did I ever tell or suggest to anyone that I was not in Montana when I was actually in 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 _______________________________________________________________________________________________________________________________________________________________________________________________________________________________________ DECLARATION OF JONATHAN DE WOLF ISO MOTION FOR SUMMARY JUDGMENT McGuinn, Hillsman & Palefsky 535 Pacific Avenue San Francisco, CA 94133 (415) 421-9292 Montana, nor did I ask or suggest to anyone that they should do anything to “conceal” the fact that I was on vacation in Montana between July 2nd and July 24th. 1 3. In September 2018, almost one year before I took my Montana vacation, I was told by Shawna Frederito (“Frederito”), Saison’s Human Resources Director, that one of the Angler S.F. employees had complained about the manner in which I had spoken to him. I assumed that the person in question was a kitchen employee named Alex Jun. In fact, Mr. Jun had been performing so poorly at work that I (and others) believed that Mr. Jun might need to be terminated soon, and I had felt compelled several times to speak sternly with Mr. Jun about serious mistakes he was making in the kitchen, such as not following recipes. Frederito gave me a written warning in September 2018, and told me that I needed to be more careful in how I spoke to this employee, since it could be viewed as “harassment”. A true and correct copy of the written warning I received in September 2018 is attached hereto as Exhibit 4. At some point in the following months, I heard that Mr. Jun had left Saison, although I did not know anything about the circumstances of his leaving. Prior to my filing a lawsuit against Saison in February 2020 following my termination, I had never heard anything about Mr. Jun receiving some severance from Saison. At no point prior to filing my lawsuit against Saison in February 2020 did I hear from anyone that Saison wanted me to reimburse Saison for the “severance pay” it had apparently given to Mr. Jun. Indeed, prior to seeing the Cross-Complaint that Saison filed against me in April 2020, I did not even know that Saison had given Mr. Jun any severance pay. 14. During 2019, I informed Saison of concerns I had about a variety of potential health and safety violations at the Angler S.F. restaurant, and I also complained to Saison several times about the company’s failure to reimburse my business expenses in a timely manner. My concerns were largely ignored. On the morning of January 8, 2020, I sent two letters to Saison management, in which I again put in writing my concerns regarding possible health and safety violations at the Angler S.F. restaurant, and about the company’s failure to reimburse my business expenses in a timely manner. Attached hereto as Exhibits 5 and 6 are true and correct copies of these two January 8, 2020 letters. On the afternoon of January 8, 2020, I received an e- EXHIBIT 1 EXHIBIT 2 EXHIBIT 3 JDW006 JDW007 JDW008 EXHIBIT 4 DEF000026 DEF000027 EXHIBIT 5 1 From: Jonathan Dewolf Sent: Wednesday, January 8, 2020 10:43 AM To: Joshua Skenes; Shawna Frederito Subject: Angler LA / Workweek Chef Joshua / Shawna, I wanted to make sure it that it is known that Chef Joshua has advised me to work at home for the remainder of the week. Chef has asked that I still go to LA next week to help with Dameon's transition, as the kitchen staff have asked for help during this time. I am happy to charge the expenses to my account, but again will need to be reimbursed in a more timely manner. This trip is going to run probably around $3k - $4, and I am not in a financial situation where I can carry those expenses for a prolonged period of time. Please advise that I will be reimbursed timely so that I can successfully help the LA team. Thanks. Jonathan -- Jonathan de Wolf Jonathan@saisonsf.com Culinary Director 178 Townsend Street San Francisco CA 94107 DEF000195 EXHIBIT 6 DEF000163 EXHIBIT 7 DEF000030 EXHIBIT 8 DBA Saison and Angler Restaurants 2019 Employee Handbook DEF000035 INTRODUCTION ............................................................................................................................................................ 5 WELCOME NEW EMPLOYEE ................................................................................................................................................. 5 THE HANDBOOK ................................................................................................................................................................... 5 SAISON HOSPITALITY GROUP .............................................................................................................................................. 6 MISSION/VISION STATEMENT ............................................................................................................................................... 6 CORE VALUES ...................................................................................................................................................................... 6 OUR MANAGEMENT PHILOSOPHY ........................................................................................................................................ 7 CONTACT INFORMATION ...................................................................................................................................................... 7 ESSENTIAL LEGAL PROVISIONS ............................................................................................................................. 9 EQUAL EMPLOYMENT OPPORTUNITY .................................................................................................................................. 9 AT-WILL EMPLOYMENT STATUS .......................................................................................................................................... 9 EMPLOYMENT APPLICATIONS .............................................................................................................................................. 9 PRE-EMPLOYMENT QUALIFICATIONS ................................................................................................................................... 9 EMPLOYMENT ELIGIBILITY VERIFICATION .......................................................................................................................... 10 THIRD PARTY REQUESTS FOR EMPLOYEE INFORMATION ................................................................................................. 10 OPEN DOOR POLICY .......................................................................................................................................................... 10 AMERICANS WITH DISABILITIES ACT (ADA) ...................................................................................................................... 11 LIFE-THREATENING ILLNESSES IN THE WORKPLACE ........................................................................................................ 11 UNLAWFUL HARASSMENT .................................................................................................................................................. 11 INVESTIGATORY LEAVE AND RESTAURANT INVESTIGATIONS ............................................................................................ 14 CONFLICTS OF INTEREST ................................................................................................................................................... 15 NON-DISCLOSURE .............................................................................................................................................................. 15 SOLICITATION OF GUESTS AND EMPLOYEES ..................................................................................................................... 15 BUSINESS CONDUCT AND ETHICS ..................................................................................................................................... 16 TRADE SECRETS ................................................................................................................................................................ 16 EMPLOYMENT POLICIES AND PRACTICES ..........................................................................................................17 EMPLOYEE CLASSIFICATIONS ............................................................................................................................................ 17 PERSONNEL FILES AND REQUESTS FOR INFORMATION .................................................................................................... 17 PERFORMANCE APPRAISALS ............................................................................................................................................. 18 WORK SCHEDULES ............................................................................................................................................................ 18 WORK HOURS .................................................................................................................................................................... 19 SECONDARY EMPLOYMENT ............................................................................................................................................... 19 MEAL AND REST PERIODS FOR NON-EXEMPT EMPLOYEES ............................................................................................. 19 IMPERMISSIBLE USE OF MEAL PERIOD AND/OR REST BREAKS ........................................................................................ 20 RECOVERY BREAKS (OUTDOOR WORKERS ONLY) ........................................................................................................... 20 LACTATION ACCOMMODATION POLICY .............................................................................................................................. 20 UNAUTHORIZED WORK TIME ............................................................................................................................................. 21 OVERTIME FOR NON-EXEMPT EMPLOYEES....................................................................................................................... 21 COMPENSATORY TIME OFF (CTO) .................................................................................................................................... 21 TIMEKEEPING REQUIREMENTS FOR NON-EXEMPT EMPLOYEES....................................................................................... 22 REPORTING TIME PAY FOR NON-EXEMPT EMPLOYEES .................................................................................................... 22 MINIMUM WAGE ................................................................................................................................................................. 22 PAYMENT OF WAGES ......................................................................................................................................................... 22 TIPS POLICY ....................................................................................................................................................................... 22 CONFIDENTIAL WAGE INFORMATION ................................................................................................................................. 23 DIRECT DEPOSIT OPTION .................................................................................................................................................. 23 PAY DEDUCTIONS .............................................................................................................................................................. 24 GARNISHMENT AND SUPPORT ORDERS ............................................................................................................................ 24 PAY CORRECTIONS ............................................................................................................................................................ 24 DEF000036 PAY ADVANCES AND LOANS .............................................................................................................................................. 24 CASH SHORTAGE ............................................................................................................................................................... 24 CASH HANDLING ................................................................................................................................................................ 24 CREDIT CARD SECURITY STANDARDS .............................................................................................................................. 25 RESTAURANT-SPONSORED EVENTS ................................................................................................................................. 25 EMPLOYEE TRAVEL AND REIMBURSEMENT ....................................................................................................................... 25 DRIVER REQUIREMENTS .................................................................................................................................................... 27 STANDARDS OF CONDUCT ......................................................................................................................................28 PROHIBITED CONDUCT ...................................................................................................................................................... 28 OFF-DUTY CONDUCT ......................................................................................................................................................... 29 GUEST RELATIONS ............................................................................................................................................................. 29 KNOWLEDGE AND USE OF THE ENGLISH LANGUAGE ........................................................................................................ 29 DRUG AND ALCOHOL POLICY ............................................................................................................................................. 29 ALCOHOLIC BEVERAGE CONTROL (ABC) LICENSE REQUIREMENTS ............................................................................... 31 EMPLOYEE DATING ............................................................................................................................................................ 32 EMPLOYMENT OF RELATIVES ............................................................................................................................................. 32 PUNCTUALITY AND ATTENDANCE ....................................................................................................................................... 33 JOB ABANDONMENT ........................................................................................................................................................... 33 DRESS CODE AND OTHER PERSONAL STANDARDS .......................................................................................................... 33 UNIFORM POLICY ............................................................................................................................................................... 34 OPERATIONAL CONSIDERATIONS .........................................................................................................................35 SOCIAL MEDIA POLICY ....................................................................................................................................................... 35 ELECTRONIC MEDIA ........................................................................................................................................................... 36 MEDIA CONTACT ................................................................................................................................................................ 36 USE OF RECORDING DEVICES IN THE WORKPLACE .......................................................................................................... 36 TELEPHONE MONITORING AND USE .................................................................................................................................. 37 CONDUCTING PERSONAL BUSINESS ................................................................................................................................. 37 CELL PHONES AND PERSONAL ELECTRONIC DEVICES ..................................................................................................... 37 PERSONAL MAIL DELIVERED AT WORK ............................................................................................................................. 38 HOUSEKEEPING .................................................................................................................................................................. 38 FRAGRANCE-FREE WORKPLACE ....................................................................................................................................... 38 VISITORS AND VENDORS .................................................................................................................................................... 38 SOLICITATION ..................................................................................................................................................................... 39 GPS TRACKING POLICY..................................................................................................................................................... 39 USE OF RESTAURANT ASSETS .......................................................................................................................................... 39 RETURN OF RESTAURANT PROPERTY ............................................................................................................................... 40 SECURITY INSPECTIONS..................................................................................................................................................... 40 SECURITY/WORKPLACE VIOLENCE.................................................................................................................................... 40 SURVEILLANCE CAMERAS .................................................................................................................................................. 40 LOST AND FOUND ............................................................................................................................................................... 40 SAFETY AND HEALTH ...............................................................................................................................................41 GENERAL SAFETY GUIDELINES ......................................................................................................................................... 41 EARTHQUAKE EMERGENCY ............................................................................................................................................... 42 FIRE EMERGENCY .............................................................................................................................................................. 42 ROBBERY EMERGENCY ...................................................................................................................................................... 42 EMERGENCY FACILITY CLOSINGS ...................................................................................................................................... 43 SAFETY DATA SHEETS (SDS) ........................................................................................................................................... 43 PROPOSITION 65 WARNING ............................................................................................................................................... 43 SMOKING AND SMOKING BREAKS ...................................................................................................................................... 43 BLOODBORNE PATHOGEN POLICY..................................................................................................................................... 44 STOPPING THE SPREAD OF GERMS AT WORK .................................................................................................................. 44 DEF000037 SANITATION ........................................................................................................................................................................ 44 HANDLING FOOD ............................................................................................................................................................... 44 RESPONDING TO GUEST FOOD ILLNESS COMPLAINTS ..................................................................................................... 45 MEDICAL EMERGENCY ....................................................................................................................................................... 45 PROCEDURE FOR HANDLING CUTS AND LACERATIONS .................................................................................................... 45 DRIVER SAFETY ................................................................................................................................................................. 45 ERGONOMICS ..................................................................................................................................................................... 46 CHILDREN IN THE WORKPLACE .......................................................................................................................................... 46 ANIMALS IN THE WORKPLACE ............................................................................................................................................ 46 EMPLOYEE BENEFITS ...............................................................................................................................................48 EMPLOYEE DISCOUNTS ...................................................................................................................................................... 48 ANNUAL CLOSURES ........................................................................................................................................................... 48 HOLIDAYS - UNPAID ........................................................................................................................................................... 48 VACATIONS - UNPAID ......................................................................................................................................................... 48 HEALTH INSURANCE BENEFITS .......................................................................................................................................... 48 BENEFITS OPEN ENROLLMENT PERIOD (IN Q4 HR WILL SEND OUT PROCESS TO ALL EMPLOYEES) ............................... 49 HEALTH BENEFITS QUALIFYING EVENT ............................................................................................................................. 49 VARIABLE HOUR EMPLOYEES: HEALTH INSURANCE ELIGIBILITY ..................................................................................... 49 HEALTH BENEFITS CONTINUATION .................................................................................................................................... 49 WORKERS COMPENSATION .............................................................................................................................................. 50 WORKERS COMPENSATION DESIGNATED LOCATIONS.................................................................................................... 50 WORKERS COMPENSATION PRE-DESIGNATED PHYSICIAN, CHIROPRACTOR, OR ACUPUNCTURIST (FOR EMPLOYERS W/HEALTH BENEFITS ONLY) ............................................................................................................................................. 50 LEAVES OF ABSENCE ...............................................................................................................................................51 LEAVES OF ABSENCE ......................................................................................................................................................... 51 GENERAL PROVISIONS REGARDING ALL LEAVES ............................................................................................................. 51 RETURNING TO WORK AFTER AN ILLNESS OR INJURY ...................................................................................................... 51 LEAVE WITHOUT PAY ......................................................................................................................................................... 51 STATE DISABILITY INSURANCE ........................................................................................................................................... 52 FAMILY MEDICAL LEAVE ACT (FMLA) ............................................................................................................................... 52 CALIFORNIA FAMILY RIGHTS ACT (CFRA) ........................................................................................................................ 53 PREGNANCY DISABILITY LEAVE ......................................................................................................................................... 53 CALIFORNIA PAID FAMILY LEAVE ....................................................................................................................................... 54 BONE MARROW & ORGAN DONOR LEAVE ........................................................................................................................ 54 JURY DUTY LEAVE ............................................................................................................................................................. 54 BEREAVEMENT LEAVE ........................................................................................................................................................ 54 TIME OFF FOR VOTING ....................................................................................................................................................... 54 WITNESS AND CRIME VICTIM LEAVE.................................................................................................................................. 54 VOLUNTEER CIVIL SERVICE PERSONNEL .......................................................................................................................... 55 MILITARY LEAVE ................................................................................................................................................................. 55 MILITARY SPOUSE LEAVE LAW .......................................................................................................................................... 55 UNIFORMED SERVICES EMPLOYMENT & REEMPLOYMENT RIGHTS ACT (USERRA) ...................................................... 55 SCHOOL ACTIVITIES ........................................................................................................................................................... 56 2019 EMPLOYEE ACKNOWLEDGMENT FORM .....................................................................................................57 DEF000038 5 INTRODUCTION ____________________________________________________________________ Welcome New Employee On behalf of your colleagues and Saison Hospitality Group (SHG) we welcome you to our Restaurant and wish you every success here. We believe that each employee contributes directly to our Restaurant's growth and success, and we hope you will take pride in being a member of our team. Attention to guest needs, and courtesy to others are basic expectations, as is maintaining a professional atmosphere at all times. Thank you for joining our team. We will provide you with the training and all the tools necessary for you to be successful. We take great pride in recognizing that each member of the team strives to do the very best each and every day. Our high standards of the restaurant can only be held and maintained by employees like you who share the same values. As part of the team, it is essential that you maintain an energetic, positive, and caring attitude toward our guests at all times. It is our responsibility to make sure that each guest has a wonderful and unique experience dining at Saison. The guidelines and policies listed in this Handbook have been established in order to help you be successful in achieving these goals. Along with the hands-on training you will receive, this Handbook can be used as a guide to help answer any questions you might have along the way. Welcome to the Saison Hospitality Team! The Handbook This handbook is designed to acquaint you with our Restaurant and provide you with information about working conditions, employee benefits, and the policies affecting your employment. You should read, understand, and comply with all provisions in the handbook. It describes many of your responsibilities as an employee and outlines the programs developed by Saison Hospitality Group to benefit employees. One of our objectives is to provide a work environment that is conducive to both personal and professional growth. No employee handbook can cover every circumstance or question about a policy. It is not a contract of employment for any specific duration and is not intended to create any such contractual obligations of any kind. From time to time, the need may arise to change policies described in this handbook. Therefore, the Restaurant reserves the right to revise, supplement, or rescind any policies or portions of this handbook, as it deems appropriate, in its sole and absolute discretion. You will be notified of such changes as they occur. The only recognized deviations from the stated policies are those authorized and signed by the Owners of Saison Hospitality Group. No oral statements or representations may, in any way, alter the provisions of this handbook. Unless otherwise noted in writing, this handbook sets forth the entire agreement between you and the Restaurant for the duration of employment and the circumstances under which employment may be terminated. Nothing in this employee handbook, or in any other personnel document, including benefit plan descriptions, is intended to create a promise or representation of continued employment for any employee. If any policy in this handbook is found to be non-compliant or binding in another form, the remaining policies of the handbook shall remain valid and in force. This handbook supersedes all previously issued handbooks. DEF000039 11 Saison Hospitality Group values your observations and you should feel free to raise issues of concern, in good faith, without the fear of retaliation. All suggestions will be taken into consideration, but may not always be acted upon. Americans with Disabilities Act (ADA) The Americans with Disabilities Act (ADA) protects qualified employees with disabilities from discrimination in the workplace. If you have a disability that may prohibit you from performing essential job functions in any way, notify your General Manager as soon as possible. Saison Hospitality Group will reasonably accommodate individuals with a disability so that they can perform the essential functions of their job, unless doing so causes a direct threat to these individuals or others in the workplace and/or if the accommodation creates an undue hardship to the Restaurant. At no time will Saison Hospitality Group discriminate, harass, or retaliate in any way against you for making an accommodation request. Any type of harassment or discrimination whether real or perceived should be reported to your General Manager immediately. Life-Threatening Illnesses in the Workplace Employees with life-threatening illnesses, such as cancer, heart disease or AIDS, often wish to continue their normal pursuits, including work, to the extent allowed by their condition. Saison Hospitality Group supports these endeavors as long as employees are able to meet acceptable performance standards. As in the case of other disabilities, the Restaurant will make reasonable accommodations in accordance with all legal requirements, to allow qualified employees with life-threatening illnesses to perform the essential functions of their jobs. Medical information on individual employees is treated confidentially. The Restaurant will take reasonable precautions to protect such information from inappropriate disclosure. General Managers and other employees have a responsibility to respect and maintain the confidentiality of any employee medical information. Anyone inappropriately disclosing such information is subject to disciplinary action, up to and including termination. Employees with questions or concerns about life-threatening illnesses are encouraged to contact the Human Resources Manager for information and referral to appropriate services and resources. Unlawful Harassment Saison Hospitality Group is committed to providing a work environment free of unlawful harassment and discrimination. Restaurant policy prohibits harassment of any kind including, but not limited to: sexual harassment or other offensive conduct, creating a hostile work environment, bullying, abusive conduct, and stalking. Restaurant policy prohibits discrimination and harassment based on race, color, religious creed, sex, religion, marital status, denial of family and medical care leave, age, national origin (including language use restrictions), ancestry, physical disability, mental disability, medical condition, genetic information, gender, gender identity, gender expression, sexual orientation, sex stereotype, military and veteran status, or any other basis protected by federal, state, or local law, ordinance or regulation. All such harassment and discrimination is unlawful and will not be tolerated . Restaurant policy also prohibits unlawful harassment based on the perception that anyone has any of the above-mentioned characteristics, or is associated with a person who has or is perceived as having any of those characteristics. This policy extends to all aspects of the Restaurant s employment practices, including but not limited to: employee relations, recruitment, training, safety and risk management, employee promotion and transfer, labor relations, benefits, and employee classification and compensation. For purposes of this policy: Sexual orientation is an inherent or enduring pattern of romantic or sexual attraction (or a combination of these) to persons of the opposite sex or gender, the same sex or gender, or to both sexes and more than one gender. These attractions are generally subsumed under heterosexuality, homosexuality, and bisexuality; DEF000045 12 person's sex at birth, or transgender; -related appearance or behavior, whether or not stereotypically associated with the person's sex at birth; person's sex at birth. A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth. A transgender person may or ; pregnancy, childbirth or breastfeeding; gender identity; and gender expression; and individual's ability or inability to perform certain kinds of work based on a myth, social expectation, or generalization about the individual's sex. Examples of prohibited harassment include, but are not limited to, the following behavior: Verbal conduct such as: making or using derogatory comments, epithets or name calling, slurs, and jokes; intimidation, ridicule or mockery, insults or put-downs; unwanted sexual advances or degrading words used to describe an individual; or suggestive or obscene letters, notes, e-mails or invitations; Abusive conduct, which includes conduct of an employer or employee in the workplace, with legitimate business interests. It may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a Bullying includes repeated less favorable treatment, verbal mistreatment, offensive conduct or behavior that is threatening, humiliating, degrading or intimidating by one employee or a group of employees, possibly in front of guests or third parties; Visual displays such as suggestive objects or pictures, derogatory and/or sexually-oriented posters, photography, cartoons, drawings, or gestures; Prolonged staring or leering which might be construed as sexual or threatening in nature, whether or not intended by the perpetrator; Physical conduct including: assaults or threats, unwanted touching, intentionally impeding or blocking normal movements, challenging someone to fight or interfering with work; Threats and demands to submit to sexual requests as a condition of continued employment, or to avoid some other loss; making or threatening reprisals after a negative response to sexual advances; or offers of employment benefits in return for sexual favors; Stalking including the use of electronic communications, such as text messaging, emails and social media, sexual battery or other improper activities as provided under state and federal law; Online harassment such as: e-mails or attachments; sending or posting harassing messages or videos via text, instant messaging or social media; materials posted about a person; chat room discussions; and viewing/downloading of online pornography, sexually offensive materials, or discriminating materials; Suggestive or obscene clothing, to include designs and printed matter or obscene tattoos, piercings and body art; Use of electronic devices to record audio, video and/or take photographs of any Restaurant employee, guest or third party without prior consent; Any of the above behavior or conduct that offends or creates an uncomfortable or hostile work environment for a third party, including other employees; The use of threatening or intimidating language in regards to any violent or sexual conduct; DEF000046 13 Gossip about a fellow employee whether truthful or made-up, which can be hurtful, mean and disrespectful, and can create a hostile environment for fellow employees; and Other harassing or discriminatory conduct based on one or more of the protected categories identified in this policy. Harassment can occur in a variety of circumstances, including between members of the same or opposite sex. The harasser or victim can be a supervisor, a supervisor in another area, a co-worker, an agent of the employer, or a non-employee of the Restaurant. To constitute harassment, the harasser need not intend to harass, and the harassing conduct does not need to be directed at the victim. Rather, the victim can be anyone reasonably affected by the offensive conduct. Retaliation The Restaurant maintains a strict policy against retaliation. It is illegal to retaliate against any individual or employee for reporting, threatening to report, being a witness to, or filing a harassment or discrimination charge; participating in any way in an investigation, proceeding, or lawsuit; or opposing an employment practice the individual reasonably believes to be unlawful. Pregnancy Discrimination The Restaurant prohibits discrimination based on pregnancy which includes: The basis of past pregnancy, current pregnancy, family status, and intended pregnancy; An employee who needs time off to undergo in vitro fertilization; An employee who uses contraceptives, including not discriminating against the employee by excluding coverage of prescription contraceptives; A medical condition relating to pregnancy or childbirth including lactation and breastfeeding; An employee having an abortion or contemplating having an abortion; Forcing an employee to take leave just because she is pregnant, as long as she is medically able to perform the essential job functions; Treating a pregnant employee who is temporarily unable to perform the functions of her job different than other employees who are temporarily unable to perform the functions of their jobs. For the purposes of this section, the Restaurant will treat an employee who is temporarily unable to perform the functions of her job because of her pregnancy-related condition in the same manner as it treats other employees in their ability or inability to work. The Restaurant will do this by providing modified tasks, alternative assignments, or fringe benefits such as disability leave and leave without pay as required under state, federal, and local law. This includes providing pregnant workers or those with pregnancy-related conditions with light-duty work or a leave of absence if the employer does so for other employees with similar limitations. Individuals and Conduct Covered These policies apply to all applicants, employees, interns, volunteers and/or anyone in an apprenticeship program, as applicable, whether related to conduct engaged in by fellow employees or someone not directly connected to the Restaurant (i.e. outside vendors, contractors, interns, consultants or customers/guests). Managers, supervisors, coworkers and third parties with whom employees come into contact are prohibited from engaging in unlawful conduct under the California Fair Employment and Housing Act (FEHA). Conduct prohibited by these policies is unacceptable in the workplace and in any work-related setting outside the workplace, such as during business trips, business meetings, and business-related social events. DEF000047 14 Complaint Process When possible, the Restaurant encourages individuals who believe they are being subjected to such conduct to promptly advise the offender that his or her behavior is unwelcome and request that it be discontinued. Often this action alone will resolve the problem. The Restaurant recognizes, however, that an individual may prefer to pursue the matter through the complaint process. If you believe that you have been unlawfully harassed, discriminated against, or retaliated against, submit a complaint, either orally or in writing, to your General Manager as soon as possible after the incident. Alternatively, you may submit your complaint directly to the Owners and/or Human Resources Manager. Your complaint should include details of the incident or incidents, names of the individuals involved, and names of any witnesses. General Managers shall refer all complaints to the Owners and/or Human Resources Manager immediately. Failure to do so may subject the General Manager to disciplinary action, up to and including termination. Following receipt of a complaint, the Restaurant will undertake a timely, effective, thorough, and objective investigation of the allegations. The resulting investigation will provide all parties with appropriate due process, and reasonable conclusions will be reached based on the evidence collected. Investigations will be tracked and documented to ensure reasonable progress and timely closure. Confidentiality will be kept by the Restaurant to the extent possible, but the Restaurant cannot guarantee an investigation will be completely confidential. If the Restaurant determines that unlawful harassment, discrimination, or retaliation has occurred, appropriate remedial action will be taken in accordance with the circumstances involved. This may include disciplinary action up to and including termination. A Restaurant representative will advise all parties concerned of the result of the investigation pursuant to law. It is illegal to retaliate against anyone for filing a complaint or participating in a subsequent investigation. The Restaurant will not retaliate against you or any witnesses, and will not tolerate or permit retaliation by management, employees, or co-workers. You should also be aware that the Federal Equal Employment Opportunity Commission (EEOC) and the California Department of Fair Employment and Housing (DFEH) may also investigate and prosecute complaints. If you feel you have been subjected to harassment or discrimination, you may contact the DFEH or EEOC directly. Consult the local directory or government website to find the office nearest to you. The Restaurant requires that all employees involved in the complaint, including witnesses and the alleged perpetrator completely and honestly assist in the investigation. This includes, but is not limited to, providing honest and accurate statements, being available for interviews, providing the investigator with requested materials and documentation, and assisting in the successful completion of the investigation. Failure to do so may be cause for disciplinary action, up to and including termination (see Investigatory Leave). Additionally, if the Restaurant determines an employee intentionally filed a false claim, the employee may be subject to disciplinary action up to and including termination. Investigatory Leave and Restaurant Investigations An employee may be placed on an investigatory leave, with or without notice and with or without pay, to permit Saison Hospitality Group to review or investigate actions, including, but not limited to, dishonesty, theft or misappropriation of Restaurant funds and/or property, violence on the job, gross safety negligence or acts endangerment others, insubordination, harassment, discrimination, or any other conduct which warrants removing the employee from the work premises. Upon conclusion of the investigation, the employee shall be informed of the results. Any written reports regarding internal Restaurant investigations are strictly confidential and kept private by the Restaurant. This type of information is not subject to disclosure without a court order unless otherwise required by law. Any written investigative reports are the sole property of Saison Hospitality Group. Any employee involved in a Restaurant investigation, whether as a witness, victim or suspect will not be asked to sign the report nor will a written copy of the report be placed in the DEF000048 28 STANDARDS OF CONDUCT ____________________________________________________________________ Prohibited Conduct Violation of any prohibited conduct may be cause for disciplinary action up to and including termination. This list of prohibited conduct is illustrative only. Other types of conduct that threaten security, personal safety, employee welfare and Saison Hospitality Group following conduct is prohibited and will not be tolerated by the Restaurant: Falsifying employment records, employment information, or other Restaurant records; Recording the work time of another employee or allowing another employee to record your work time. Falsifying a time card, whether ; Theft and/or deliberate or careless damage or destruction of any Restaurant property, or the property of any employee or guest; Unauthorized use of Restaurant equipment, time, credit/gas cards, credit lines or accounts, materials, or facilities; Carrying or storing firearms or any other dangerous weapons on Restaurant premises, including parking and common areas at any time; Engaging in criminal conduct, whether or not related to job performance; Causing, creating, or participating in a disruption of any kind during working hours on Restaurant property, including but not limited to provoking a fight, threatening, fighting, horseplay, or practical jokes; Insubordination, including but not limited to failure or refusal to obey the lawful orders or instructions of a person in a supervisory role, or the use of abusive or threatening language toward a person in a supervisory role; Downloading, storing, printing, or displaying inappropriate or pornographic images on a computer or any electronic device; Using abusive language, including but not limited to swearing or cursing at any time on Restaurant premises; Failing to observe working schedules, including rest and meal periods; failing to notify a General Manager when unable to report to work prior to commencement of a shift; or leaving work without permission for any reason during normal working hours; Failing to p ; Sleeping or the appearance of sleeping on the job; Making or accepting personal telephone calls and text messages, except in cases of emergency; Committing a fraudulent act or a breach of trust under any circumstances; The fraudulent and/or unauthorized use of any Restaurant computer system, cellular phone, POS system, payment/billing system, or any other electronic system for the explicit purpose(s) of personal financial gain or re-direction of Restaurant funds; Modifying or manipulating any Restaurant-provided computer system, hardware, or program(s); The unauthorized taking of photos or audio/video recordings of employees, guests, and/or third parties without their permission; Gambling, lotteries, or other games of chance are prohibited on Restaurant property; Violating the Restaurant Discussing personal or unauthorized Restaurant matters in public areas where guests could overhear the conversation; Adding unauthorized service charge to guest checks or altering these checks in any way; Making publishing false, vicious or malicious statements concerning any employees, General Managers, the Restaurant, its foods and/or beverages, or service; DEF000062 29 Discourtesy, including engaging in rude or obscene conduct towards guests, coworkers, General Managers, or other members of management; Offering any form of medication to a guest (including aspirin); Counting or discussing tips in front of guests, or confronting guest about tips; Failure to fully participate in any Restaurant required investigation and/or interview, or making false or misleading statements of any kind; Intimidating, threatening, or coercing any victim or witness of a Restaurant-required investigation; and Violating any Restaurant policy or procedure. This statement of prohibited conduct does not alter Saison Hospitality Group -will employment. Both you and the Restaurant remain free to terminate the employment relationship at any time, with or without reason or advance notice. Off-Duty Conduct While the Restaurant does not seek to interfere with the lawful off-duty and personal conduct of its employees, certain types of off-duty conduct may interfere with the Restaurant interests. For this reason, employees are expected to conduct their personal affairs in a manner that does not adversely affect the Restaurant or the credibility, integrity, or reputation of other employees. Illegal off- duty conduct by an employee that adversely affects Saison Hospitality Group interests or the employee's ability to perform his or her job will not be tolerated. Employees may not wear Saison Hospitality Group logo attire or represent themselves as a spokesperson for the Restaurant while participating in off-duty activism events. Furthermore, the use or disclosure of personal employee information, including but not limited to phone numbers, email addresses, or physical addresses, should only be used for work-related matters such as important work-related issue. Nothing in this po activities. Guest Relations Employees are expected to be polite, courteous, prompt, and attentive to every guest. When an employee encounters an uncomfortable situation that they do not feel capable of handling, your General Manager should be called immediately. Never argue with a guest and never regard a question or concern as an interruption or an annoyance. Through your conduct, show your desire to assist the guest in obtaining the help he or she needs. If a problem develops, or if a guest remains dissatisfied, ask your General Manager to intervene. Knowledge and Use of the English Language As a courtesy to our guests, all employees who deal directly with the public are expected to be able to speak, read, and understand the English language. You must speak English when talking to, or when in close proximity to, English-speaking guests. If a guest speaks to you in another language, you may respond in that language if you are able to do so, or find another employee or General Manager to help you. Drug and Alcohol Policy Saison Hospitality Group maintains a drug and alcohol-free workplace. Employees are required to report to work in appropriate mental and physical condition to perform their jobs in a satisfactory and safe manner. No employee may use, possess, distribute, sell, or be under the influence of alcohol, marijuana, or illegal DEF000063 Employee Handbook Updated 5/28/19 Pg. 57 DBA Saison and Angler Restaurants Employee Handbook 2019 EMPLOYEE ACKNOWLEDGMENT FORM I am in receipt of Saison Hospitality Group responsibility to read, abide by, and familiarize myself with the policies and procedures listed in the handbook. I further understand that the Restaurant has the right to change and/or revise the handbook at any time for any reason and that any violation of the Restaurant policies and/or procedures may result in disciplinary action up to and including termination. I understand that the Restaurant is committed to providing a work environment free of unlawful harassment. Restaurant policy prohibits sexual harassment and harassment of any kind as defined and prohibited by federal and state law. All such harassment is unlawful. The Restaurant anti-harassment policy applies to all persons involved in the operation of the Restaurant and prohibits unlawful harassment by any employee, including General Managers, managers and/or supervisors and coworkers. I understand that my employment with Saison Hospitality Group is on an at-will basis, which means that the employment relationship can be terminated at any time and for any reason by either party (the employee or employer) with or without cause and with or without notice. I further understand and agree that nothing in this employee manual constitutes a contract of employment or any promise of continued employment for any length of time. I understand that, except for employment at-will status, the Restaurant can change any and all policies or practices at any time. The Restaurant reserves the right to change my hours, wages, and working conditions at any time. It is expressly understood that my at-will employment with this Restaurant cannot be changed and/or modified, except by the Owners of the Restaurant in writing. I understand and agree that all Restaurant computers, phones, faxes and equipment are intended for business use. All files and records stored on Restaurant computers are the property of the Restaurant. I acknowledge that the Restaurant maintains the right to access all data on the computer system, E-mail, fax, and voice mail at any time with or without prior notice, and employees should not assume that such messages are confidential. Employees should be aware that the Restaurant shall fully cooperate with requests from law enforcement agencies or government agencies regarding requests for monitoring and/or record requests. I am signing this of my own free will and with the understanding that my employment is at-will. This supersedes all previous agreements, understandings, and representations concerning my employment with Saison Hospitality Group. EMPLOYEE'S SIGNATURE DATE DEF000091 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 __________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ PROOF OF SERVICE McGuinn, Hillsman & Palefsky 535 Pacific Avenue San Francisco, CA 94133 (415) 421-9292 PROOF OF SERVICE CASE NAME: Jonathan De Wolf v. Saison Hospitality, LLC, et al. COURT: San Francisco Superior Court, Case No. CGC-20-583090 I am a citizen of the United States and employed in the County of San Francisco, City of San Francisco, California. I am over the age of eighteen years and not a party to the within action. My business address is McGuinn, Hillsman & Palefsky, 535 Pacific Avenue, San Francisco, California 94133. I am familiar with McGuinn, Hillsman & Palefsky’s practice whereby each document is placed in an envelope, the envelope is sealed, the appropriate postage is placed thereon, and the sealed envelope is placed in the office mail receptacle. Each day the mail is collected and deposited in a United States Postal mailbox at or before the closed of business each day. On the date below-written, I served the following document(s): DECLARATION OF JONATHAN DE WOLF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ON CROSS-COMPLAINT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION (A) By First Class Mail - I caused each such envelope, with first-class postage thereon fully prepaid, to be deposited in a recognized place of deposit of the U. S. mail in San Francisco, California, for collection and mailing to the office of the addressee on the date shown herein following ordinary business practices. (B) By Electronic Mail -- By transmitting a true copy thereof by electronic mail to the interested parties to said action at the email address(es) shown on the attached Service List: SERVICE LIST Type of Service Addressee Representing (B) MICHAEL A. LAURENSON (SBN: 190023) BENJAMIN A. MAINS (SBN: 274056) GORDON REES SCULLY MANSUKHANI, LLP 1111 Broadway, Suite 1700 Oakland, CA 94607 Telephone: (510) 463-8600 Facsimile: (510) 984-1721 Mlaurenson@grsm.com Bmains@grsm.com Attorneys for Defendant I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct to the best of my knowledge. Executed on February 22, 2021 , at San Francisco, California. ___________________________________ Dara Tuell