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The Trouble With Making Employees Pay for Uniforms [e149]

The guys kick off the week by explaining the issues with employers requiring their employees to pay for their own uniforms.

Transcript:

NASIR: All right. Welcome to our podcast where we cover business in the news and add our legal twist to these stories for your benefit and your benefit only – for no one else. Welcome to the program and my name is Nasir Pasha.
MATT: I’m Matt Staub.
NASIR: I just wanted to make sure that we’re paying very specific attention to you, the listener, right now. I’m talking about you – the one that’s listening right now with their headphones – yeah, you, this is for you.
MATT: So, this is what? Monday — well, Monday, sometime Monday, assuming you listen to it on the day it comes out. It’s nice to have someone focus on you on a Monday. So, I think our listeners are very appreciative of this nice gesture that we’re doing for them and I think it’s going to be a good week. If you just listen to this, the Farmers Insurance Open has ended, assuming there hasn’t been another fog delay like there was on Thursday and it got pushed to Monday.
NASIR: Didn’t that happen last year too? Or two years ago?
MATT: I know this because I went on the Saturday two years ago.
NASIR: Yeah, we both went.
MATT: Oh, yeah, we did. There was a rain delay. Like, a couple of people got on the course and that was it. They had to push the last day till Monday so it threw everybody off.
NASIR: I don’t know if you went with us that time. Remember Chris Merrill?
MATT: Yeah.
NASIR: Was with us from KOGO? Good times in San Diego.
MATT: Well, I think what happened was you and I went with separate groups and we tried to meet up and then I think you just ended up leaving because of the rain.
NASIR: Yeah, I think I stole Tiger Woods’ ball and ran away or something. I can’t remember.
MATT: Yeah. Well, he’s out. He withdrew after twelve holes or something yesterday because he’s hurt.
NASIR: That’s pretty much my golfing game in a sentence.
MATT: All right. Well, what do we have today? I think we have something pretty interesting for people.
NASIR: That’s new.
MATT: Especially if they are on their way to work and wearing a uniform because we’re going to talk about employees that have to pay for their uniforms. It’s an interesting thing. Have you ever – well, I guess (1) have you ever had a job where you’ve had to wear a uniform? If not, then you don’t answer the question but (2) like, I’ve had plenty of different uniforms of businesses, I’ve never had to actually pay for anything in the past.
NASIR: The only real job that I could, in theory, would have had a uniform was I sold cellular phones for T-Mobile for a little during law school, but I don’t even think they cared what you wore. But, of course, you’d want to look somewhat presentable to the potential customers.
MATT: Yeah, that’s a good point.
NASIR: That’s pretty much it. No uniforms on my end.
MATT: Is that when you had to dress up as a giant phone?
NASIR: Yeah, that was my uniform. I had some balloons as well and hold a sign.
MATT: Sign spinning. Well, in California, if the employer requires the employee to wear a uniform, the employer has to pay the cost of the uniform. I mean, in California, it’s pretty straight-forward and I guess I need to define uniform so I haven’t been very good at that. It’s apparel and accessories of distinctive design and color. One of the things I had to wear one time was almost like an apron, but it wasn’t an apron – I guess it was an apron – I don’t know. That would be an example. Or all the items of flare that I didn’t have to purchase when I worked at Chachkies.
NASIR: Yeah, that’s a great example, nice office space reference. So, the Department of Labor have some guidelines on, basically, if you require the employee to wear a uniform then the employer is going to have to cover the cost. But where it becomes a little more difficult is exactly where Matt mentioned is what exactly is a uniform and when does that actually come into play?
When we started talking about this, the first thing I thought of was walking into the Target. I don’t know if every Target’s like this, but you’ll walk in and everyone’s wearing some kind of dress or some pants or whatever – either khaki or black – and they’re all wearing red shirts, but no one’s wearing red shirts that are very uniform, so to speak – no pun intended – and the reason I know that is because there’s this one guy, I swear, he looks like he just came off a ship back in the 1800s or something because his red shirt’s all very tattered and very obviously very different and I’m just trying to think, you know, “Doesn’t Target just pay for these things?” And so, I did some research. Apparently, this was subject to a class action law suit – I don’t know, I would say about three or four years ago – that has actually never been settled yet because the plaintiff that was bringing up this issue actually backed off and ended up dismissing the case for what he says “personal reasons” – I’m not exactly sure. So, we don’t actually know the answer of what Target does.
MATT: I’ve actually been to stores. It wasn’t Target but it’s another store where all the employees wear red and people have asked me questions.
NASIR: That’s always embarrassing.
MATT: “I don’t work here.”
NASIR: I don’t know what it is, but I tend to dress like the waiter every time I go to a formal function at a hotel or something.
MATT: Well, I think that happened to Michael Scott once where he wore the same exact outfit as people that were serving – not to get too off-track but he made Dwight switch clothes with him which doesn’t make any sense since Dwight is significantly taller and bigger than Michael Scott, but that’s neither here nor there.
So, yeah, if you’re an employee and if people, they’re all wearing the designed logoed polo that everyone has to wear, that’s one thing. But, if your employer says, “You have to wear red shirt, khaki pants, shoes, et cetera,” you don’t get a full brand new wardrobe purchased by the employer. That’s not what’s classified as a uniform. It’s when you have to wear that specific item – what would be a good way to put it? That has the logo or the name on the clothing itself?
NASIR: No, because it doesn’t have to have the logo on there. Like I said, I don’t know what Target’s policy is, whether they reimburse their employees for that, but I think, if you require having a red shirt and khakis, and a certain color shoes and so forth, you’re getting close to that borderline because I personally couldn’t find – and I’m not representing Target so I don’t really need to research this issue but – I did find a case where an employer specified that the worker had to wear, like, a dark-colored shoe, and that’s actually very common in the restaurant industry. I’ve seen a lot of bus boys. They’ve told me that that’s part of their requirement, but where it didn’t specify what style of shoe and so forth, then the employer wasn’t required to pay for it. But, if it was a certain brand of shoe and, like, they had to wear a tux or a certain style of pant and so forth, then the Department of Labor was more inclined to require the employer to have to front those costs.
MATT: Yeah, it is a little bit tricky. You know, we talk about a lot of different bad decisions that employers make and, although this isn’t the worst thing they could do – requiring an employee to wear something and not paying for it when it could possibly be construed as a uniform – it’s still something that they do need to consider. So, you’ve got to pay careful attention to how you word your policy in terms of what needs to be worn and you can actually specify quite a few things of the uniform – I was going to say “without running into issues in terms of discrimination” or something like that, but I can still see how that would happen.
NASIR: Yeah, absolutely. When you’re dealing with federal standards, I may have misspoken. I can’t remember if I was mixing Department of Labor or the Federal Department of Labor for California law but, when the federal government’s concerned, they’re most concerned not necessarily who’s paying for but, if you are requiring your employees to pay for it, how it’s deducted from the wages because what may happen sometimes is, if you require your employee to pay cash, that might be an issue. But what if the actual, if you’re deducting from a paycheck, what if the employee ends up being paid less than minimum wage? There’s different ways that you can handle that. You know, you can sparse it out over time, still making sure that it doesn’t go below minimum wage. You can even pay them an extra amount, I believe, for things like maintenance and cleaning cost for the actual clothing and so forth. But it gets pretty detailed and then very case-specific, depending upon the type of uniform and what maintenance is required.
MATT: And that makes perfect sense. You can’t pay someone minimum wage and then tell them they have to pay for a uniform and they end up getting paid, like a lot of things, you can’t end up having the employee make lessened minimum wage net. That shouldn’t be too much of a shock to employers.
NASIR: No, not at all, and that class action was, of course, brought in California under the law that we were describing requires employers. I really wish that was determined. I would like to know how that turned out. I would think that would give bus some good guidance.
MATT: Well, I think the best way to do it is just to get a job with Target and…
NASIR: And file a law suit?
MATT: Bring your own law suit.
NASIR: It might be easier just to find an ex-employee or an employee that did that that had to pay for their own clothing.
MATT: I don’t personally know anyone that’s worked for Target – at least right now.
NASIR: I used to know a bunch of guys from my dorm in college. I remember they signed up as security asset protection.
MATT: Asset protection?
NASIR: That’s what it was called – asset protection – and these guys were, like, you know, goofy college kids, but they got a high out of the fact that they got to hide undercover and follow people to see if they were stealing and watch the video cameras and so forth. I don’t know. They had some interesting stories that came out of it.
MATT: Oh, I bet.
NASIR: But, see, in that case, they didn’t have any uniform. They were dressed undercover.
MATT: That’s true. There you go. I think that’s the solution. If I ran a business, all the employees would be undercover.
NASIR: No doubt. I agree. But you may have to pay for the wigs and the fake mustaches and stuff.
MATT: Yeah.
NASIR: That’s the downside. All right. Well, I think that’s our topic. If you guys have any questions or suggestions for topics especially, you can send it in to ask@legallysoundsmartbusiness.com. Thanks for joining us!
MATT: Yup! Keep it sound and keep it smart!

Nasir Pasha & Matt Staub

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The Podcast Where Nasir Pasha and Matthew Staub cover business in the news with their legal twist and answer business legal questions that you the listener can send it to ask@legallysoundsmartbusiness.com.

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