Many restaurant operators are confused about uniforms. What they are? Who buys them? Who takes care of them? These are all very common questions that operators will have. Below is some helpful information to provide more clarity about uniforms in the workplace.
WHAT IS A UNIFORM? WHO HAS TO PAY FOR IT?
California’s Industrial Welfare Commission (IWC) defines uniforms as “apparel and accessories of distinctive design or color” that an employee is required to wear. If an employer requires its employees to wear uniforms, the employer must provide and maintain the uniforms as discussed below.
But if an employer only requires its employees to wear basic wardrobe items of unspecified design that are “usual and generally useable in the occupation,” then the employer does not have to pay for or maintain the employees’ clothing. This exception to the general rule requiring employers to provide employee uniforms is a limited one, and narrowly-construed by the Department of Labor Standards Enforcement. An important opinion letter from the DLSE provides further guidance. The DLSE addressed an employer’s concerns about whether wait staff could be required to wear “floral or colorful shirts” and “rugby-style shorts” without the restaurant having to supply these items as uniforms. In response, the DLSE stated that although tropical attire may be “in vogue” in the sense of California fashion, the appropriate legal question is whether the employee “could be expected to be able to use the outfit while working at his or her occupation with another employer.”
The DLSE answered that because the floral shirts and rugby shorts would not be customary employee uniforms at most other restaurants, the employer would be required to furnish the floral shirts and rugby shorts, required to be worn by its employees.
To complicate matters further, pursuant to section 12947.5 of the California Government Code, an employer may not prohibit an employee from wearing pants based on the employee’s gender. However, this section does not prohibit an employer from requiring employees to wear a uniform, or to wear a costume while that employee is portraying a specific character or dramatic role. This section also does not prevent an employer from enforcing a policy of “business” or “professional” attire at his or her work, such as requiring slacks rather than jeans. Protecting uniforms When an employer is obligated to pay for his employees’ uniforms, he can require that his employees provide a reasonable security deposit for the uniform. The deposit is reasonable if it does not exceed the cost of the uniform. The security deposit must be handled carefully, and the employer must do the following:
the employee must receive a receipt for the deposit
the employee must receive a written agreement that sets forth any conditions under which the deposit is given
the employer must not mingle deposit funds with its other funds
the employer must return the deposit with accrued interest when the uniform is returned.
No deduction or additional deposit may be required if a uniform must be replaced due to normal wear and tear. The employer should not deduct the deposit from the employee’s paycheck.
Conversely, an employer may deduct the cost of the uniform, with prior written authorization from the employee, from the employee’s last paycheck, if the employee either ruins or fails to return the uniform but the employer cannot take a deduction for normal wear and tear.
However, the usefulness of this option is reduced by the general rule against deductions that would reduce a paycheck below minimum wage, and this option will be of little use for restaurant employees who are paid at or only slightly above minimum wage. Exception: Gross negligence, dishonesty, willfulness Based on decisions of the California Supreme Court and a California appellate court, employers are prohibited from making any deductions from an employee’s check without a showing of dishonesty, willful destruction or gross negligence, even where the employee has signed an agreement authorizing the deduction. The CRA advises employers holding security deposits — and those seeking to withhold uniform costs pursuant to written agreement for lost or destroyed uniforms — to discuss these issues with competent counsel before converting the deposit or deducting any wages from an employee’s paycheck. Who pays to maintain the uniform? The employer generally needs to maintain all uniforms. If the uniform only needs minimal care, which is defined as washing and tumble or drip-drying, then the employer can require the employee to take care of it. However, if the uniform requires anything more, such as ironing, dry cleaning, separate laundering because of its color or heavy soil, then the employer must maintain the uniform. The employer can take over cleaning responsibilities, or can pay each affected employee a weekly allowance of one hour’s pay at minimum wage, assuming that one hour is a realistic estimate of the time needed to maintain the uniform. Federal law does not permit the employer to require daily laundering of a uniform if the employer provides employees with only one uniform.
This report was reviewed for legal accuracy and updated in 2016 by Weintraub | Tobin.
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