Should employees pay the cost of “Dress Code” required at work?

Alexander Brown and Arik Silva worked as retail sales associates at Abercrombie & Fitch Co., a company that operates retail clothing stores throughout the United States. Brown and Silva sued their employer in a class action, claiming that the employer compelled them to patronize Abercrombie products in violation of California law.

The employees claim that their employer compelled them to purchase Abercrombie clothing for two reasons: First, Abercrombie wanted to make profits from those purchases. Second, Abercrombie saw it as a marketing strategy so that the employees would be walking advertisements for Abercrombie.

The employees argue that Abercrombie’s clothing policy essentially constitutes a requirement that employees wear a “uniform.” Hence, Abercrombie should have reimbursed employees for the expense of those uniforms. Abercrombie’s refusal to reimburse these expenses caused the employees’ wages to fall below the applicable minimum wage, which violated the wage laws of several states, including California.

The case was consolidated with other cases filed against Abercrombie outside California.  These cases affected approximately 258,000 non-exempt, mostly minimum-wage Abercrombie employees.

California law allows employers to require its employees to wear uniforms as a condition of employment. Employers may prescribe the weight, color, texture, style, form, and make of uniforms required to be worn by their employees.  However, if employers require its employees to wear uniforms, the employer should either provide the uniforms, or reimburse the employees for the cost of buying the uniforms. Employers should also pay for the maintenance of the uniforms.

The term “uniform” is defined to include wearing apparel and accessories of distinctive design or color. Examples are tuxedos, skirts, blouses, and jackets of specific style, color, and quality. White shirts and dark pants or skirts are generally not considered uniforms if they are a general ordinary type of street clothing, and the employer does not require any specific style, quality or material. Employers do not have to pay for uniforms generally usable in the employee’s occupation, such as nurses’ white uniforms and black and white uniforms of unspecified design worn by wait staff since these persons can generally wear such uniforms wherever they work.

As the Abercrombie case shows, the employer may not exactly require a uniform. However, if the company mandates its employees to wear clothes that the company is selling, this practice may still be considered as a requirement to wear a uniform. If this is the case, the company must then pay the costs of these uniform.

After many years of litigation, the parties agreed to settle the case. Abercrombie has agreed to pay $25 million to settle the claims by the retail employees.

The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.comor our Facebook page Joe Sayas Law. [C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is the recipient of PABA’s Community Champion Award.]