Uniforms For Tipped Employees; What is the Law?

It has long been industry practice for employers, including many in the hospitality industry, to require workers to wear clothing of a particular kind or appearance. What many do not realize is that this practice can have significant ramifications under the federal Fair Labor Standards Act. If your clothing policy violates the FLSA, "everybody does it" will not be a defense. A new U.S. Labor Department guidance letter has added at least a little clarity in this area.

The Basics

So how are clothing requirements and the FLSA connected in the first place? If clothing is viewed as a uniform under that law, then the cost of or deposits on the required apparel cannot be deducted from an employee's wages (or otherwise placed upon the employee) to the extent that this cuts into the required minimum wage or overtime due the person at 1.5 times his or her regular rate of pay.

For example, let's say your hotel or restaurant requires certain employees to buy uniforms. You generally cannot compel them to bear the costs of the purchase to the extent that it reduces the employees' wages to below the FLSA-required wages due for the week in which the expense is incurred. This is also true where an applicant has to buy such items in order to be hired by the employer.

DOL says that items of an ordinary, basic, street-clothing nature which the employer specifies only in general terms and as to which it allows variations in the details generally do not fall within the definition of a "uniform." But DOL has also warned that, if the employer prescribes a specific type and style of clothing to be worn at work – such as where a restaurant or hotel requires a tuxedo or a skirt and blouse, or jacket of a specific style, color, or quality – that sort of clothing would be considered a uniform. It's usually best to evaluate these matters on an item-by-item basis, because the employer bears the risk of erroneously deciding that clothing is not subject to the FLSA's limitations.

The Latest On Shoes

Recently, a DOL opinion letter addressed whether a requirement that employees wear "dark-colored," closed-toe shoes with a non-slip sole triggered the FLSA's cost limitations. Employees were allowed to wear complying shoes they owned when they were hired, or they could buy the necessary shoes anywhere they wanted. They could wear the shoes outside of work. DOL concluded that the shoes appeared to be a general type of ordinary footwear, and that the employer-required characteristics did not cause them to rise to the level of a "uniform" for FLSA purposes.

But DOL made it clear that there are no hard-and-fast rules on this subject. It also cautioned that the issue "is a question of fact to be considered in the context of each particular case." And while the letter did not say so, it is also true that DOL's position does not necessarily preclude employees from suing in court if they disagree.

By the way, these principles can also apply to the cost of cleaning and maintaining required uniforms: generally, that cost may not be imposed upon an employee to the extent that this reduces the worker's wages to below the required amount(s) due for the hours worked. DOL has taken the enforcement position that, where uniforms are 1) made of wash-and-wear materials; 2) may be routinely washed and dried with other personal garments; and 3) need not be ironed, dry-cleaned, washed daily, commercially laundered, or otherwise specially handled, then uniform-maintenance costs need not be reimbursed under the FLSA.

But where special treatment is required, such as in order to meet a company's particular appearance standards, or standards imposed by law, then a reimbursement must be made to the extent that the related cost cuts into the required FLSA minimum wage or overtime.

Beyond The Feds

Of course, you should always take any relevant state laws into account whenever you are assessing wage-hour compliance. This is especially true where required apparel is concerned, because a number of States apply their own, particular limitations. Many of those rules further restrict what employers may do as to uniform costs or charges even more than the FLSA does.

For instance, some States prohibit charging employees for uniforms in any amount. As another illustration, a State might not follow the "wash-and-wear" position adopted by DOL and might require maintenance-related reimbursements even for clothes of that variety. States having their own rules also tend to take a broad view of what constitutes a "uniform."

As with most wage/hour matters, if you're unsure, it's probably best to check with your legal counsel.