The Kean v. Brinker Decision: Insights for Wage and Hour Lawyers

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:

1. 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.
2. Clarity in Document Requests: Clearly specify the types of documents to preserve, such as emails, performance evaluations, and schedules related to wage practices.
3. 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.
4. 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.
5. 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.

Tags: Wage & Hour
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