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Is An Athletic Shoe A Uniform?

A decision published this week reminds us that California employers must pay for their employees’ uniforms. Kullar v. Foot Locker Retail, Inc., Case No. A119697 (1st Dist Ct. App. Oct 14, 2008). Although the decision itself deals with the requirements for approval of a class action settlement, one of the underlying claims was that Foot Locker required its employees to wear shoes of a “distinctive design or color,” the basis for a uniform reimbursement claim.

Labor Code section 2802 generally provides that employers must indemnify employees for all necessary expenses or losses. The specific requirement to pay for uniforms appears in section 9 of the wage orders, which states: “When uniforms are required by the employer to be worn by the employee as a condition of employment, such uniforms shall be provided and maintained by the employer. The term ‘uniform’ includes wearing apparel and accessories of distinctive design or color.” Read the provision in Wage Order No. 4 here. The requirement does not apply to public employers, who typically negotiate responsibility for the cost of uniforms in collective bargaining.

Further guidance appears in section 45.5 of the DLSE Enforcement Policies and Interpretations Manual, which says: “The Division has historically taken the position, based upon notes of the Com mission, that nurses can wear their white uniforms wherever they work, and the employer, consequently, need not pay for them . Other workers in occupations for which the particular white uniform is generally usable would fall into the same category.”

The employer may specify the basic wardrobe items which are used and generally usable in an occupation, but when the employer specifies clothes of a particular design, they may become sufficiently distinctive to constitute uniforms. For example, one of the Labor Commissioner’s opinion letters concluded that an employer had to pay for the tropical shirts and rugby pants that it required its waiters and waitresses to wear. See O.L. 1990.09.18. Another letter stated that requiring employees to wear clothing, including undergarments and shoes, that did not contain metal (the employer had employees go through a metal detector because of concern about thefts) would require the employer to pay for the clothing. See O.L. 1994.02.16-1.

Employers concerned about theft or loss of uniforms may require employees to provide a deposit to be refunded upon return of the uniform, under the procedure set out in Labor Code sections 400-410. The employer may not deduct from the deposit for normal wear and tear. Although the wage orders provide that employers may deduct the cost of lost uniforms from the final paycheck, case law and the Labor Code are contrary.

Employers who do not pay for uniforms risk substantial liability. The Foot Locker settlement had a value of $2 million. In June 2003, Abercrombie & Fitch agreed to pay up to $2.2 million, and to stop requiring employees to wear outfits from its stores. Other retailers who had to settle include Gap and Banana Republic ($1.8 million in January 2005), and Ralph Lauren Polo ($1.5 million in January 2006).