Consider laws when designing uniform policies

Bob Zaletel and Jessica Rothenberg

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.

Rules about maintenance

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In many states (including California, Nevada, and New York), if an employer requires uniforms, it is responsible for the “maintenance” (i.e., washing and upkeep) of the uniform (in addition to the cost of the uniform itself) when the uniform requires ironing, dry cleaning or another special cleaning process. If the uniform requires minimal care (wash and tumble, or drip drying), then the employer is not obligated to pay for maintenance.

Uniform maintenance has been the subject of recent class action claims. For instance, Starbucks faced a lawsuit in California over the aprons employees are required to wear. The company provided the aprons, and the employee manual stated that employees were responsible for laundering and maintaining their aprons. The employees alleged the aprons had to be dry-cleaned and sought reimbursement from the company for the cost of doing so. Starbucks presented evidence that the aprons were machine washable and could be tumble-dried. The court held that the aprons did not require special care, and ruled in favor of Starbucks.

In general, restaurants should follow these guidelines:

1. To help avoid confusion and minimize the risk of employee claims that they are required to buy uniforms, and/or are required to specially launder their uniforms, employers should have clear, written policies. If a “uniform” is required, state in the written policy that the employer will provide the uniforms, and that employees are not required to purchase additional uniforms. The employer should issue sufficient uniforms to the employee to cover reasonable use for a work week. The policy should be monitored and enforced.

2. If an employer’s policy encourages, but does not require, wearing company-branded attire, indicate this clearly in the written policy. Managers should be instructed never to require or coerce employees to buy the employer’s brand. Similarly, employers’ policies should address whether uniforms require special laundering. If they require special laundering, the policy should state that the employer is responsible for the expense. If they do not require special laundering, and are instead “wash and wear,” the policy should clearly state that employees are not required to dry clean their uniforms, and managers should be instructed to follow the policy.

Bob Zaletel ([email protected]) is a shareholder and Jessica Rothenberg ([email protected]) is an associate at the law firm of Littler Mendelson, P.C., in San Francisco. This is general information only and should not be construed as legal advice or opinion.