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— The full lawsuit
— Ex-employees file suit against Calavera restaurant (April 4, 2016)
A long-running class action lawsuit accusing the owners of the Uptown Oakland restaurant Calavera of wage theft has come to an end, but though the terms of the settlement are under wraps, a spokesperson for the workers who filed the suit said the conclusion remains a victory.
Calavera opened in 2015 with an upscale menu of Oaxacan food, from a team of industry veterans including Michael Iglesias (Coqueta, Oyamel) and Chris Pastena (Chop Bar, Lungomare) and with chefs including Christian Irabien and Aledar Rogers in the kitchen.
In April 2016, three former employees sued the restaurant, naming Iglesias, Irabien, Pastena and Rogers as defendants. The former employees — prep cook Flor Crisostomo, sous chef Sergio Esquivel and dishwasher Maribel Hernandez — claimed that they were not provided with minimum wage, nor were they paid for overtime or meal breaks, as is required by law.
After the lawsuit was filed, over 100 fellow restaurant workers and allies gathered in front of Calavera to protest the restaurant’s alleged labor violations. The Bay Area Restaurant Workers Movement also organized a boycott. Since then, public awareness of the lawsuit dropped off, but plaintiffs for the suit continued to join, with 263 workers eventually adding their names to the fight.
According to court documents, claims from those workers included a failure to indemnify employees for all necessary expenditures, failure to comply with itemized wage statements, failure to pay all wages upon termination or resignation, breach of contract, violation of unfair competition law, and penalties pursuant to the Labor Code Private Attorneys General Act. When the suit was first announced in 2016, the plaintiffs told reporters that they also faced racial discrimination from leadership. Those claims were not included in the suit as filed.
Speaking with Nosh last week, Crisostomo said that she routinely worked 12-hour shifts with no breaks. A native of Oaxaca, she said she contributed several Zapotecan family recipes to the menu as she helped the restaurant open, including handmade tortillas and mole.
“I put my all into making the dishes and making sure that my customs from the women in my family would get put on those plates,” she said.
She lost her job at Calavera in October 2015, shortly after the restaurant opened. Speaking with the East Bay Express in 2016, she said, “I went in and they fired me on the spot, arguing that I wasn’t doing enough for the kitchen, not fulfilling my responsibilities, and that production was slow. They didn’t give me a two-week notice, and they were referring to a position that was not mine.”
After Crisostomo was terminated, she said she noticed that other workers were experiencing alleged wage theft as well, so she began to organize a case against Calavera. She hired Héctor R. Martinez of Mallison & Martinez, a firm with a nonprofit background that also represents janitorial, packing and farm workers.
According to Martinez, it’s difficult to litigate cases like the one against Calavera because the workforce is often transient. By the same token, members of class action lawsuits like this one also grow substantially because there’s so much turnover in the restaurant industry.
As a result, it’s typical for negotiations in cases like this one to last for four or five years, Martinez said. As such, the pandemic posed another challenge. As the case was still unresolved into 2020, the pandemic’s impact on the restaurant industry made a settlement even harder to reach. Like countless other restaurants, Calavera was struggling.
According to Martinez, it wasn’t in anyone’s best interest for the restaurant to declare bankruptcy, as the former workers did not want to put Calavera out of business. (More practically, a bankrupt business might not offer any settlement, at all.)
Last year, Calavera finally settled with the former workers, on the condition that they all agree to a non-disparagement clause, which means they can’t speak out against the business. This is standard in many wage theft lawsuits, though critics say those agreements enable employers to keep accusations out of public view. The amount of the settlement in the case against Calavera is also confidential.
When contacted by Nosh, Pastena (who is still Calavera’s owner) responded with a brief statement. “We did not state that we were at fault for anything. The reason why we stated that is because this is the truth and we continue to abide by that. We were not at fault, and we decided to settle because the settlement options were a lot more feasible than a prolonged court case.”
Though Crisostomo and her associates have honored the non-disparagement clause by not criticizing the business, that doesn’t mean she can’t speak candidly about their allegations. She says she now feels that Calavera’s owners appropriated her culinary heritage by using her knowledge to help build its menu.
“I’m really proud” that the case was settled, Crisostomo said. “It’s a great accomplishment for culinary workers locally and nationally.”
Crisostomo is still working in the restaurant industry, now as a restaurant manager. She also plans to continue as a labor organizer in the future. She said that the settlement isn’t what’s important to this case. Rather, she hoped to call attention to labor abuses that are widespread in the restaurant industry, and to prevent exploitation similar to what was alleged at Calavera from happening in the future.
She says she wants to teach restaurant owners that labor abuses are not acceptable, for undocumented workers or anyone else. “Every restaurant worker should be treated with respect,” she said. “Especially now after COVID, they’re viewed as essential workers and it seems that they’re barely starting to recognize everyone’s worth.”
“I want to keep working towards and making sure that everyone, regardless of their status, is seen as equal.”