Requiring Workers To Wear Certain Footwear Does Not Make Them A “Uniform”

The U.S. Department of Labor (DOL) recently issued an opinion letter addressing two issues involving employer requirements that employees wear a specific kind of footwear to work. The questions posed by a restaurant were as follows: (1) whether the requirement that employees wear a certain type of footwear makes such footwear a “uniform” under the Fair Labor Standards Act (FLSA); and (2) whether permit-ting employees to pay for shoes that comply with the employer’s policy through a payroll deduction constitutes an impermissible deduction from wages.

The DOL opined that the required footwear does not constitute a “uniform” under the FLSA and that it is permissible for employees to voluntarily assign their wages for the purchase of these shoes.

“Specific” Footwear

The DOL’s opinion letter was issued in response to an inquiry involving a restaurant that requires its employees to wear “dark-colored,” close-toed shoes that do not have a slippery sole (for safety purposes). The shoes, which workers are free to wear outside of work, could be shoes the employee already owns and could be of any quality, brand, style, model or type.

The employer established a program through which employees could purchase shoes from a third party manufacturer, which carries 60 different slip-resistant shoes in various styles and colors. Under the program, purchases were either made directly by the employee or by the employer, which would then deduct the purchase price from the employee’s paycheck over a number of weeks. In some cases, the deductions caused the remaining amount of the employee’s paycheck to fall below the minimum wage for each hour worked during that pay period.

If the employee requests that the employer pay for their shoes through a payroll deduction, the employee must submit a written request describing the shoes to be purchased, requesting the employer to pay for the shoes, and authorizing the employer to withhold future wages in an amount sufficient to reimburse the employer for the cost of the shoes.

With regard to whether the footwear requirement made employee’s shoes a “uniform,” the DOL noted that clothing is considered to be a uniform if the employer prescribes a specific type, style, color or quality. However, an employer-prescribed general type of ordinary “street clothing” would not be considered a uniform. The prescribed shoes in this situation, the DOL stated, “appear to be a general type of ordinary footwear.” Moreover, the fact that they must be dark and non-slip did not make them a “uniform” under the FLSA. Thus, the employer was not required to pay for its employees’ shoes.

Payroll Deductions

The DOL then turned to the next issue: whether the employer may advance employees the cost of the shoes and deduct over time the amount from their pay  – where the deductions may cause paychecks to fall below the minimum wage. Section 3(m) of the FLSA includes as part of “wages” the “reasonable cost” to the employer for furnishing employees with board, lodging or other facilities.

The DOL opined that the purchase of the shoes could be considered furnishing “other facilities” under Section 3(m). Therefore, deductions of the actual cost of the shoes is permissible even if it reduced employees’ wages below the minimum wage. The DOL stressed that the payroll deductions are permissible so long as the employer does not profit or include administrative costs in the deduction. Finally, the DOL stated that the same rule applies to tipped employees.

Practical Impact

According to Tracy Miller, a shareholder in Ogletree Deakins’ Phoenix office: “This opinion letter is consistent with prior DOL opinions and court rulings. As a general rule, employers can require employees to wear certain items of general `street clothing’ and require employees to bear the expense. Where the employer fronts the costs, this is in essence a `loan’ to the employee, and thus this amount can be recovered by a payroll deduction even if the deduction brings the employee’s compensation to below minimum wage. Employers should be sure, however, to check whether such deductions are permitted under the applicable state law.”

Note: This article was published in the January/February 2009 issue of The Employment Law Authority.

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