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Delia’s Tamales maintained two sets of books — one for legitimate payroll checks, and another to track under-the-table cash payments — according to new details that surfaced this week in the expansive wage theft lawsuit against the popular chain eatery.
The allegation came on Tuesday, during an electronic status conference hosted by U.S. Magistrate Judge Peter Bray, the Houston-based judge who is presiding over the case.
Along with the dual recordkeeping allegation came others, including that Delia Lubin, founder and owner of the chain — which has restaurants across the Rio Grande Valley and San Antonio — had some of the plaintiffs clean her home.
“There are plenty of different experiences where there were some people working, for example, some portion of their time as a housekeeper at the owner’s home,” Dr. Douglas A’Hern, one of two attorneys representing the 27 plaintiffs, said during Tuesday’s hearing over Zoom.
“There were other people that were working strictly on the line making nothing but masa for the tamales. And they never had any interactions with anybody up front,” A’hern added.
Delia Lubin is not named as a defendant in the lawsuit. The sole named defendant is the company itself.
A’hern provided the examples to help illustrate how the work experiences of each of his clients was unique, therefore preventing the group from being considered a homogenous “class.”
Delia’s Tamales’ attorneys, however, told Judge Bray that sifting through the evidence the plaintiffs have provided thus far — mostly in the form of handwritten declarations recounting their experiences — has been inscrutable due to how alike they are.
“It just seemed like cookie cutters. For example, for the hours worked, all of them either said they worked every single day from 5 to close, or they would say they worked 15 hours a day,” Lorena Del Pilar Valle, one of the attorneys representing Delia’s Tamales, said.
“So, it wasn’t broken up to where it gave us information as to what exactly their claims are,” she added.
Both sides were seeking the judge’s permission to depose a bevy of witnesses — to take sworn testimony via a formal question-and-answer session that would be recorded by a court reporter.
For the plaintiffs, A’Hern wanted to depose at least 11 people — employees within the Delia’s Tamales chain of command who likely have knowledge of employee hours, hirings and firings.
The company, meanwhile, wants to depose nearly all of the plaintiffs.
“Defendant anticipates taking the depositions of at least 20 plaintiffs. The deposition of each plaintiff will be limited to a three … hour examination from the Defendant, and one … hour examination from Plaintiff,” reads a May 3 joint status report.
However, the idea of taking sworn testimony from 31 people at four hours per person was a nonstarter for Bray, who advised both sides to be “strategic” in order to pare that number down.
Bray advised A’Hern to look for a Delia’s Tamales employee “who can speak to the records” that the company maintained on its employees, as well as how the company operates.
“And then ask that same person, ‘Who else knows about this?’” Bray said.
Similarly, Bray told the company’s attorneys to be more mindful of how it chooses who to depose.
“Can’t we just start with a deposition of one person from each store and that person might have been strategically chosen?” Bray asked.
Both sides agreed; however, A’Hern noted that finding the evidence to back his clients’ claims may prove difficult given the nature of how the company allegedly carried out the wage theft scheme.
“The problem that we are getting into … is that a lot of our plaintiffs are telling us, ‘Look, there were two sets of books, basically. Yes, I would get my check, but then, if I worked X number of hours, I was always getting paid cash under the table,’” A’Hern said.
That’s part of the reason the written declarations appear so similar, but so is another factor — “The majority of these folks don’t have bank accounts,” A’Hern explained.
The similarities between the plaintiffs’ written accounts is too uncanny, the company’s attorneys argued.
“The interrogatories we received were copies of each other and the only thing that changed were names,” Valle said.
The judge warned both sides that they are required to turn over all evidence.
“If there were one set of books, two sets of books, three sets of books, whatever it is, the defendant is required to turn over complete discovery requests,” Bray said.
“And if you start believing that they’re withholding something, then you need to come to me,” he added.
Bray gave both sides until the end of August to complete the depositions before moving on to the next phase of the lawsuit.
“This is me encouraging you, gently, to get going,” Bray said.
