Workers’ Compensation and the Dual Purpose Doctrine

The Sixth Circuit's ruling in Kean v. Brinker International, Inc., ___F.4 th ___, 2025 WL1692713 (6th Cir. 2025), is not only a good Age Discrimination in Employment Act (ADEA) decision for those who represent employees; it offers great applications for Fair Labor Standards Act (FLSA) cases. Case Overview: A Lesson in Evidence Handling Jeff L. Kean, a 59-year-old General Manager at a Chili's, faced termination under dubious claims of fostering a "toxic culture." Kean contended this was merely a facade for age discrimination, especially since he was replaced by someone significantly younger and less experienced. Initially, the district court ruled in favor of Brinker, granting summary judgment. However, the appellate court highlighted a crucial factor: evidence spoliation. Brinker’s destruction of vital documents related to Kean's employment undermined their defense. The court determined that their failure to preserve original documents—especially after a litigation hold was issued—demonstrated gross negligence, severely impacting Brinker's credibility. This ruling reinforces the necessity of meticulous record-keeping in employment matters. Early Use of Preservation Letters: A Strategic Approach The Kean decision teaches us valuable lessons. Here are strategies for wage and hour lawyers to implement early preservation letters: Prompt Action: Send a preservation letter immediately when a potential FLSA client comes to your office.  You should get their permission to write to their employer if they are still employed. I am located in Ohio, and we have the benefit of a state statute Ohio Rev. Code 4111.14 (G), (H) that requires employers to produce payroll records within thirty (30) business days of receiving the request. My office couples the records request with an explicit request to preserve all relevant documents, including time records, payroll data, personnel records, and employee communications. Clarity in Document Requests: Clearly specify the types of documents to preserve, such as emails, performance evaluations, and schedules related to wage practices. Legal Reminders: Reference legal obligations under the FLSA and the cases in your jurisdiction in your preservation letters. This emphasizes the seriousness of maintaining relevant evidence. Follow-Up: After sending the letter, follow up with the employer to ensure compliance. Document any responses or lack thereof to establish the employer's awareness of their duties. Client Education and Obligations: Since the obligation to collect and preserve evidence applies to our clients, early in your representation you should educate your clients about the importance of maintaining their own records, including pay stubs and communication with employers regarding wages. Our office includes a simplified version of a preservation letter in an early communication with our clients. Now is the time to evaluate your current practices regarding preservation letters and evidence management. Are you proactively sending preservation letters to employers and prospective defendants? Are your clients informed about the importance of documentation and retention? Take action today by reviewing your strategies, educating your clients, and ensuring that you are prepared to advocate effectively for employee rights. By understanding the implications of the Kean decision and utilizing preservation letters strategically, we can better protect employee rights under the Fair Labor Standards Act.

The Fair Labor Standards Act imposes strict standards on how your employer is allowed (and not allowed) to make deductions from your paycheck, or what they are allowed to consider as part of your pay. Employers frequently try to skirt these rules and assume that their workers don’t know their rights well enough to notice or fight back against wage theft, but a wage and hour attorney in Columbus will notice right away. Because our wage lawyers in Columbus know what to look for when it comes to illegal wage deductions leading to unpaid wages, we want to empower you to know what to look for as well. If you’ve seen evidence of any of these illegal wage deductions, you should talk to our lost wages lawyers in Columbus about recouping the wages that you are legally entitled to. Illegal Wage Deductions for Uniforms While it is permissible for an employer to require a uniform for work, a provided uniform does not count as wages. An employer cannot provide a uniform in lieu of their obligations to pay minimum wage or overtime obligations. That means that an employer cannot deduct the cost of a uniform from your pay if it causes your pay rate to fall below the minimum wage or decreases the overtime rate that you are entitled to. That is an illegal deduction. You are legally entitled to that pay, and an unpaid wage and hour lawyer in Columbus can help you recover this. Take, for example,  if a restaurant pays minimum wage to a host, but deducts money from their paycheck for the host uniform. If a worker is making minimum wage, the employer cannot deduct money from their paycheck for a uniform, or most other reasons - even losses resulting from the employee’s negligence. If a worker is making more than minimum wage, employers are only allowed to deduct for specific purposes up to the amount of minimum wage. This means that at the end of the workweek, your paycheck, after the uniform deductions, cannot result in you making less than the minimum wage per hour on average.  In Ohio, the minimum wage will be $10.10 as of January 2023. If an employer is paying $11.10, or one dollar per hour over the minimum wage, then for an employer working 20 hours a week, they would only be able to deduct a maximum of $20 each week. If the employer deducts more than $20 in this example, the employee would actually make less the minimum wage per hour.   It sounds complicated, that is why an unpaid wages lawyer in Ohio should get involved to help fight back against these illegal deductions - preferably one with a long history of successful results. Illegal Wage Deductions Cover More Than Uniforms While the FLSA mentions uniforms specifically when referring to illegal deductions that a wage and hour attorney in Columbus can fight back against, the Act covers more than uniforms. The Act states that “items which are considered to be primarily for the benefit or convenience of the employer” cannot be included in wages. This means uniforms, but also some things one might not expect. Other categories considered to be “for the convenience of the employer” include tools required for work, damages caused by employees or customers, unpaid bills by customers, and theft of company property. None of these can be deducted from an employee’s weekly pay beyond minimum wage or overtime obligations, even if the employee is at fault. What an Employer Can and Cannot Do In a number of states, there are laws that protect employees from any paycheck deductions resulting from issues like damaged equipment or a cash drawer that comes up short. Ohio is not one of those states, but wage and hour attorneys in Ohio can still make sure an employer does not deduct wages beyond the Ohio minimum wage threshold in accordance with federal and Ohio law. That means that a minimum wage worker cannot have their paycheck deducted even if there is money missing from their register if the amount deducted will result in the worker making less than the minimum wage. Of course, that doesn’t mean your employer can’t take other actions - they are within their rights to terminate your employment or even pursue legal action if they believe money or equipment was intentionally stolen. Our employment attorneys in Columbus can help you fight back in any of these cases, especially if your check is being deducted unjustly or beyond the allowable maximum. If you feel you’ve had your wages cut unfairly, or more than is legally allowed, contact the wage and hour attorneys at Barkan Meizlish DeRose Cox, LLP and reclaim the wages you worked for and are legally entitled to.

The US Department of Labor Protects Ohio Workers from Retaliation Receiving adequate wages for hours worked is an entitlement that many employers simply ignore or overlook. Bringing issues with your paycheck to your employer’s attention can be scary and often very intimidating.  Most employees are hesitant to complain about unpaid overtime or earned wages out of concern that they will upset their employer, leading to discipline, a hostile work environment, or even termination.  However, employees have the federally protected right to complain to their employers about how they are being paid.  This protection extends to complaining about how their co-workers are being paid.  Under the Fair Labor Standards Act (FLSA), it is illegal for any employer to fire, demote or in any other way discriminate against employees for exercising their FLSA rights. How are Ohio Workers Protected? This past March, the U.S. Department of Labor (DOL) issued a new field assistance bulletin entitled Protecting Workers from Retaliation, which outlines the worker protections from retaliation for exercising their FLSA rights.   The DOL reiterated that the FLSA anti-retaliation protections “hold the promise that workers can complain to the government or make inquires to their employers about violations of the law without fear that they will be terminated or subject to other adverse action as a result.” The DOL stated that it is stepping up its enforcement of anti-retaliation protections. Make Complaints In Writing The courts have held that oral inquires, or complaints are protected.  However, it is a better practice to make all inquiries or complaints in writing and state that you are exercising your FLSA rights in making the inquiry or complaint.  Then save a copy of what you give to your employer.  It takes courage to make the inquiry or complaint but understand that you are within your rights to do so, and you are protected from retaliation.  The FLSA provides broad remedies to employees who are the victim of retaliation at work for exercising their FLSA rights.  The remedies include unpaid wages, liquidated damages, attorneys’ fees, and payment for emotional distress. This could also include back pay for up to two years. If you have brought up an issue to your employer about pay you are entitled to, or if you feel you have suffered from a hostile work environment by reaching out to your employer about unpaid wages, give us a call to see how Barkan Meizlish can help. There is no obligation to discuss your case. The Paycheck Warriors is a bi-weekly column written by The Paycheck Warrior himself, Managing Partner Bob DeRose. Every other week, just like your paycheck, Bob will take the time to address commonly asked questions about wage and hour law. He will also take on wage and hour topics popping up in the news. Have a question? Leave a comment and see what The Paycheck Warrior has to say!