Employer’s Shoe PolicyTo avoid slip and fall accidents, BJ’s Restaurants, Inc. (BJ’s) adopted a safety policy requiring all hourly restaurant employees to wear black, slip-resistant, close-toed shoes. The policy did not require employees to purchase a specific brand, style, or design of shoes, nor did the policy prohibit employees from wearing their shoes outside of work.
During her employment as server, Krista Townley purchased a pair of canvas shoes complying with BJ’s policy but was not reimbursed for the cost of the shoes under BJ’s policy. The trial court granted summary judgment in favor of BJ’s on Townley’s sole cause of action under the Private Attorneys General Act of 2004, which was based solely on the alleged violation of California’s business expense reimbursement law, Labor Code section 2802.
The Court of Appeal’s DecisionThe Court of Appeal affirmed the trial court’s decision, concluding BJ’s was not required, as a matter of law, to reimburse its employees for the cost of the slip-resistant shoes under section 2802 because the cost of the shoes did not qualify as a "necessary expenditure…incurred by the employee in direct consequence of the discharge of [their] duties."
The court cited a 2015 unpublished opinion of the 9th U.S. Circuit Court of Appeals, Lemus v. Denny’s Inc., which found an identical policy at Denny’s restaurants did not violate section 2802. There, the 9th Circuit reasoned that Lemus did not and could not apply section 2802 in a way that required an employer to pay for an employee’s non-uniform work clothing because, California law requires a restaurant employer pay for its employees’ work clothing only if the clothing is a "uniform" or otherwise qualifies as certain protective apparel regulated by CAL/OSHA or OSHA.
Additionally, the 9th Circuit looked to California’s Division of Labor Standards Enforcement ("DLSE") policy for guidance. It permits an employer to specify basic wardrobe items, such as white shirts and black shoes, which are "usual and generally usable in the occupation" without requiring the employer to pay for and/or furnish such items. Lemus did not argue that the shoes he purchased were part of a uniform or that they were not "usual and generally usable" in the restaurant occupation.
Like Lemus, Townley did not claim that the slip-resistant shoes she was required to purchase were part of BJ’s uniform, or were not "usual and generally usable" in the restaurant occupation. Nor did she cite any authority holding that an employer is required, under section 2802, to reimburse an employee for basic, non-uniform wardrobe items, such as the slip-resistant shoes.
Accordingly, the court found that because the shoes required by BJ’s were not part of a uniform unique to BJ’s and were "usual and generally usable" in the restaurant industry, the cost of the shoes were not “necessary expenditures” under section 2802.
Key Takeaway for EmployersWhile this is a favorable outcome for restaurant employers, employers still need to carefully consider the factors set out in Townley v. BJ’s Restaurants, Inc. – namely whether a wardrobe item is part of a uniform and whether the item is usual and generally useable in the particular industry before determining that a wardrobe item is not reimbursable.
Generally, clothing or footwear of a distinctive design or color may be considered a "uniform" under the Labor Code. In most cases, black and white attire requirements in restaurants are permitted in the restaurant business and such requirements are not considered a reimbursable uniform expense, but other colors or particular designs may be considered uniforms.
Employers are permitted to specify preferences or provide choices, however, as long as generally usable garments and shoes are permitted. For example, an employer could specify dark pants or blue jeans, with blue jeans preferred, but should not specify blue jeans as the only choice because doing so would trigger an argument that the blue jeans are reimbursable uniforms.
If an employer requires the use of a uniform, it must provide those uniforms to employees at no cost to the employee and must also replace a uniform at no cost to the employee, unless the original uniform was destroyed through the employee’s intentional act or gross negligence. This means that if an employee loses or damages a uniform through ordinary negligence, the employer must replace the uniform at no cost and cannot shift the cost to the employee (though employees who are careless with company property like uniforms can be disciplined.) Employees may be permitted to purchase additional uniforms at their own cost.
The employer generally must maintain uniforms at no cost to the employee, unless the uniform is made of fabric requiring nothing more than ordinary washing and drying. In those circumstances, an employer can reasonably require the employee to maintain the uniform. However, employers must themselves maintain or reimburse employees for the cost of maintaining uniforms that require ironing, dry-cleaning or special or separate laundering. In such cases, employers would likely also be required to pay employees for the time expended to maintain such uniforms.