Legal twist sets up the next round in Delia’s Tamales court saga

A federal magistrate judge has delivered a crippling blow to two dozen former employees who allege that Delia’s Tamales, the San Juan-based tamale restaurant chain with seven locations across the Rio Grande Valley and San Antonio, shorted them on overtime pay for decades.

On Tuesday, U.S. Magistrate Judge Peter Bray — a Houston judge who handles certain civil litigation at the McAllen federal courthouse — tossed 24 of the 27 plaintiffs from the lawsuit that originally sparked headlines in 2023. Bray’s decision came in response to a so-called “motion for summary judgement” that Delia’s Tamales’ attorneys filed last October. In the filing, the company claimed the former restaurant workers could not substantiate their allegations of wrongdoing and that the lawsuit should therefore be tossed.

In the 29-page memorandum and order Bray handed down Tuesday, the judge indeed found that many of the former workers could not back up their claims that Delia’s had failed to pay overtime as required by the Fair Labor Standards Act. Moreover, in almost every instance, the employees actually confirmed that Delia’s had kept meticulous timekeeping records using timeclocks equipped with biometric technology, that they faithfully used the timeclocks to record their shifts, and that their paystubs accurately reflected regular and overtime pay.

Further, Bray found that the majority of the workers’ claims — delivered either through sworn depositions or written affidavits — were “vague,” “nonspecific,” “inexact,” and, in many cases, involved time periods far outside the three-year statute of limitations the workers had to make their claims.

“It is apparent that none of the hourly employees can carry their burden in this case. … None of them makes any real effort to even specify that they worked overtime during the relevant three-year period,” Bray states.

“None of them makes clear that they were not actually paid overtime for any specific amount of hours worked. The evidence to the contrary is quite specific,” he further states.

As a result, Bray dismissed the claims for 20 of the former workers who were paid hourly wages, as well as four additional former workers who did not qualify to receive overtime pay because they were exempt employees who were paid flat salaries regardless of how many hours they worked. Under federal law, manager-level employees who meet certain criteria, including having supervisory responsibilities over other workers, the ability to hire or fire workers, and who earn over a certain threshold each week, do not qualify for the time-and-a-half pay rate that hourly wage employees earn for every hour they work in excess of 40 hours per week.

In all, Bray dismissed the claims of all the hourly wage workers and four of the salaried workers, including two who admitted they were overtime exempt employees. But Bray declined to dismiss the claims of three former workers who allege that Delia’s misclassified them as overtime exempt.

“There is a factual dispute about Luis Zuniga, Rose Quintanilla, and Hector Gonzalez’s responsibilities that materially affects whether they were exempt employees,” Bray states.

The magistrate judge also criticized the former workers for failing to meet the burden of proof to corroborate their claims that the tamale company had failed to properly pay them. Bray repeatedly noted the workers’ inconsistent statements, or how their sworn deposition testimony stood in contrast to the company’s electronic time records. Delia’s provided the court with pay stubs from a December 2020 pay period “for every Plaintiff” that showed regular hours, overtime hours and holiday pay, including time-and-a-half.

Further, Bray cited how “many affidavits” the former workers submitted to the court were in Spanish, with no English translation. Under the law, Bray was not required to consider those documents as evidence without such a translation. That left him just three English or English-translated statements to consider from the former workers.

However, Delia’s legal saga is not over. Along with the three plaintiffs whose claims remain active in this lawsuit, the company is facing another lawsuit filed in January that Bray is also presiding over. That suit — which involves about three dozen former workers, including many of the same plaintiffs as the 2023 suit — remains pending.

But unlike the 2023 lawsuit, the former workers filed the newer litigation as a collective action, meaning they are making their claims of wrongdoing as a group rather than individually. The 2025 lawsuit re-alleges allegations of immigration-related intimidation and Social Security fraud the workers initially alleged — but later dropped — from the 2023 lawsuit. The 2025 suit also claims that company founder Delia Lubin, her two daughters, and other family members and top-level managers participated in a criminal racketeering scheme under Texas’ Racketeering Influenced Corrupt Organization, or RICO, statute.

Further, in July 2024, FBI and IRS-Criminal Investigations division agents raided all seven of the company’s locations during a “court authorized” activity. Thus far, however, nothing more is known about what federal agents were looking for, and no criminal charges have been announced.