We have a retail establishment with several branches, and as part of the branding of the stores we want all of our salespeople to wear the same look—khaki pants and a long-sleeved, button-down blue shirt with white pinstripes. Someone told me that requiring a “look” is the same as requiring a “uniform” and that we’d have to supply the outfit. Is this correct?
— Ransom G., HR Manager in East Palo Alto
The short answer is yes. In California, khakis and a blue shirt is considered a uniform, and you’ll have to pay for it.
California’s Wage Orders, which have the force and effect of law, address dress codes. An employer that requires an employee to wear a uniform must provide it. The Wage Orders describe a uniform as any attire for which an employer specifies the style, fabric, or color, other than requiring black pants and a white top.
If you require your employees to wear black pants and a white top—for example, if they are restaurant servers, you provide an apron or vest, and they wear their own black pants and white shirt—that would not be considered a uniform. But just about anything else you specify is a uniform in California. That means that you, as the employer, must pay for that outfit.
An important case addressing this issue involved Blockbuster Video. The details were similar to those described in Ransom’s question. Blockbuster told its employees they had to wear khaki pants and a blue chambray shirt. The company claimed that the outfit was not a uniform because nearly everyone has a pair of khakis and a blue shirt in their closet, and everyone can incorporate these clothes into their personal wardrobe without much trouble or expense.
The state Division of Labor Standards Enforcement vehemently disagreed with Blockbuster, citing the Wage Orders’ rule that if an employer specifies color, fabric, or style, it’s a uniform. The agency agreed with the employees that, by requiring khaki pants and a blue chambray shirt, Blockbuster specified color, fabric, and style.
Another example is a health club that requires its employees to wear khaki shorts and provides a polo shirt with the club’s logo on it. Those shorts are part of a uniform, which the Wage Orders require the employer to provide.
400+ pages of state-specific, easy-read reference materials at your fingertips—fully updated! Check out the Guide to Employment Law for California Employers and get up to speed on everything you need to know.
Wear Our Clothes
State regulations also impact the dress policy issue when an employer requires employees to dress in the company’s clothing brand. The first major case on this issue arose in 2002, when the Ralph Lauren Corporation and the Polo Retail Corporation were sued in San Francisco by current and former employees who alleged that they had to wear Polo clothing at work. They were given an employee discount, but they still had to spend thousands of dollars a year for their clothes. By requiring employees to wear Polo products, the company was specifying style, thus making it a uniform in California. The case settled, and the Ralph Lauren Corporation paid $1.5 million to reimburse the employees for the cost of their Polo wardrobes.
Essentially the same thing happened to employees working at the Gap, Kenneth Cole, Abercrombie and Fitch, and other California retailers that said, “You’ve got to wear our clothes.” Requiring a particular brand will make that clothing a uniform in California.
Cleaning Costs
If a uniform is required, the employer either has to maintain it itself or reimburse the employee for maintenance costs, such as dry cleaning. And if the khaki pants and blue chambray shirt worn at Blockbuster Video, for example, need special care, such as ironing, the employer would not only have to pay for the dry cleaning but also the time the employee spends ironing.
Federal Versus State Law
The federal standard on providing uniforms is much less demanding than the California standard. Under federal law, the cost of purchasing a uniform can’t cut into an employee’s minimum wage or overtime pay. But, in California, the employee can’t bear any of the uniform’s cost, regardless of whether it cuts into minimum wage. California employers must follow the state standard on this issue.
Laura E. Innes, Esq., is a partner in the South San Francisco law firm of Simpson, Garrity & Innes, PC.