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Can clothing stores require employees to wear their store's clothes?



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December 2012 Legal Update

Clothing Retailer’s Fashion Policy

Draws Class Action Lawsuit

By Christopher W. Olmsted

Most California employers are familiar with the rules regarding traditional worker uniforms. But what about fashion choices, such as a clothing retailer’s preference that employees dress in a certain way? A California court addressed this issue in a case titled Morgan v. Wet Seal.

Wet Seal employees alleged that the company “forced” them to purchase store apparel, shoes and accessories as a condition of their employment without reimbursement. The employees also alleged that the dress code policy violates Labor Code section 450 by forcing employees to patronize Wet Seal stores without compensation.

They alleged that this policy was a violation of California Labor Code section 2802 as well as labor law regulations found in the applicable wage order.

Optional or Mandatory To Wear Store Clothes?

Wet Seal’s dress code states that employees should “appear well-groomed and clean.” Further it states that “All employees are required to dress in a manner that is both respectful of our Customers and consistent with the current fashion attire that is reflected in the stores.” In another version of the policy, employees are informed that they are not required to wear store clothes.

Various editions of the employee handbook stated that employees could purchase store clothing. “Our Employees must exemplify the fashionable image we want to portray to our Customer. The Employee discount is a benefit that is offered to Employees to purchase and wear current store fashion merchandise. Employees are encouraged to wear Wet Seal merchandise at all times. It is essential that the Employees reflect Wet Seal style during working hours. If an Employee does not have Wet Seal merchandise the Employee should wear clothing consistent with Wet Seal's brand.”

During the lawsuit, the employee plaintiffs and the store presented conflicting evidence about enforcement of the policy. A few employee plaintiffs alleged that when they were hired, they were told by their supervisors that they must purchase and wear Wet Seal clothing. The employees also produced a number of emails from a director who complained that a number of clerks were not wearing the “new trends” that customers want to see.

On the other hand, the store produced statements from many other employees stating that they understood that they expected or required to dress in Wet Seal clothing or in “current fashion as displayed in the store,” or words to that effect.

California Rules Regarding Clothing and “Uniforms”

California law affects mandatory dress codes in a few ways.

First, the Labor Code contains a general provision requiring employers to reimburse employees for business expenses. Section 2802 requires employers to indemnify employees “for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer.” Arguably if a company mandates the purchase of certain clothing, this could be a reimbursable expense.

Second, Labor Code section 450 provides, among other things, that an employer may not “compel or coerce any employee, or applicant for employment, to patronize his or her employer, or any other person, in the purchase of anything of value.” For example, a clothing retailer could violate the Labor Code by mandating that its employees purchase company clothing.

Third, California regulations, found in industry and trade-specific “Wage Orders” state that “when uniforms are required by the employer to be worn by the employee as a condition of employment, such uniforms shall be provided and maintained by the employer.” Under this order “uniform” includes “apparel and accessories of distinctive design or color.”

Court Addresses Class Action

The appellate court did not squarely address the uniform issue. Rather, the court reviewed the trial court’s decision to deny class action status to the plaintiffs.

The court determined that class action treatment of the claim was not appropriate because the issues raised required an assessment of each individual employee’s circumstances. There were three considerations. First, the written policies do not state that employees were “required” to purchase Wet Seal clothing as a condition of employment. Second, the policies only ask employees to dress in a manner “consistent with the current fashion style that is reflected in the stores.” Third, there was no common proof showing that the employees as a group were required or expected to purchase and wear company clothing.

After considering a number of factors relevant to class action status, the appellate court upheld the trial court’s ruling that the employees could not proceed with the class action. (They could bring their individual claims, however.)

But What About Store Clothing?

Although the court did not delve deeply into the rules regarding uniforms, the case should serve as a reminder to companies to carefully draft and administer uniform and dress code policies.

Clothing retailers in particular should refrain from mandating that employees purchase and wear store clothing. If the company decides that employees must wear its clothing, then the company should pay for the clothes.

However, it does not appear that a policy merely encouraging employees to dress in a fashionable manner is a violation of the Labor Code. Nor would encouraging employees to buy and wear store clothes, by providing a discount, seem to violate the law.

On the other hand, plaintiff lawyers may have a good argument if company management coerces employees to wear company clothes. For example, giving poor reviews, reprimanding or terminating employees for not wearing store clothes could be a problem.

And What Counts as Uniforms?

Be aware that the California Division of Labor Standards Enforcement tends to strictly interpret company dress code provisions. A “uniform” includes “apparel and accessories of distinctive design or color.” While this would not usually include a nurse’s uniform or a server’s white shirt and dark pants, company specific requirements such as a “tropical shirt” have been held to be uniforms which should be paid for by the company. California employers should contact their legal counsel to confirm that their policies comply with the law.

This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2012 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.

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