What are your uniform policies? You may not realize it, but restaurants' procedures for dictating, supplying and laundering uniforms may be governed by state law. Vague or unenforced policies can subject employers to costly litigation.

An important initial question is whether an employee’s clothing is a uniform. If it is a uniform, then at least a dozen states, including California, Nevada, New Jersey and New York, require that the employer provide and maintain the uniform. Under the Federal Fair Labor Standards Act, if an employer provides uniforms and/or monies for uniform maintenance, it cannot credit these amounts toward its minimum wage obligations. While an employer can deduct from employees’ pay for the cost of the uniforms, it cannot do this to the extent that it causes the employee’s pay to drop below the federal minimum wage (currently $7.25/hour). Although states and the federal Department of Labor have individual nuanced definitions of uniforms, they are generally considered apparel and accessories of distinctive design or color.

Clothing is not viewed as a uniform (and employers need not provide them) when it is generally usable in the occupation. For instance, requiring black pants and a white shirt for restaurant hosts and hostesses is not a uniform because they are generally usable in the restaurant occupation. However, requiring a tuxedo is a uniform because tuxedos are not basic wardrobe items and are generally not usable in the restaurant industry as a whole. Similarly, in some states, tropical shirts and rugby-style shorts for restaurant employees are distinctive enough that the employer is required to pay for the clothing.

Employers that require employees to wear their brand must provide or pay for the clothing in some states, such as California. The written policy should clearly explain the number of items that will be provided, and that employees are not required to buy any additional items.

In a case against Tommy Bahama in California, the company’s written policy required employees to wear Tommy Bahama clothing, and provided that clothing would be distributed at the time of hire, and seasonally or quarterly thereafter, at no cost to the employee. The employees argued that despite the policy, they were required to purchase clothing at their own expense in order to have a variety of outfits, and to keep up with current styles. The court refused to allow the employees to pursue a class action on behalf of all employees, reasoning that because the written policy stated the employees were provided uniforms at no cost, determining whether employees purchased extra uniforms, and if so, whether they were for work or for personal use, had to be determined on an individualized basis.

Some retailers’ dress codes do not require employees to wear their brand of clothing, but encourage it, and offer discounts to incentivize employees to wear their brand. The cases demonstrate that employers should be very careful about this issue by having a clear written policy, and ensuring that supervisors do not give contrary instructions.

In 2009, Gap was sued in California by employees claiming that, although the company’s written policy only encouraged employees to wear Gap-branded clothing (and provided an employee discount), the employees received oral instructions from managers that they were required to purchase and wear Gap-branded clothing. The court refused to allow the employees to proceed on a classwide basis because determining what each manager said and whether the employee relied on oral instruction had to be determined on an individual basis. The employees were allowed to sue on an individualized basis.