Hawking Chico’s high-end female fashion was Charissa Villanueva’s bread and butter. But behind her salesperson smile lurked bitter unhappiness. Villanueva had spent $500 to conform to the California store’s dress code. Chico’s policy required all employees to wear either its brand, or clothing in the style of its brand. Frustrated that she had to spend so much of her earnings to comply with the policy, she filed suit.
“We alleged that Chico’s was in violation of California’s labor code,” says Patrick Kitchin, who represented Villanueva in a class action against Chico’s. He and attorney Daniel Feder have pursued similar suits against Polo Ralph Lauren and GAP/Banana Republic. “The law states that if an employer wants its employees to wear a uniform, the cost of the uniform and the cost of maintaining the uniform has to be bourn by the employer.”
In December 2005 a San Francisco judge approved an $800,000 settlement in the case. Meanwhile Kitchin recently filed suit against Catalina Restaurant Group alleging the same violations while other attorneys filed a similar suit against Abercrombie and Fitch in Oregon.
“The uniform issue is a very slippery one,” says Brian Dixon, a partner at Littler Mendelson’s San Francisco office. “The California wage orders offer a wonderfully nebulous definition of a uniform. It is this definition that is the nub of the dispute.”
Dissecting the law’s definition isn’t easy. The wording is vague, prescribing no definitive rules for employers. In fact the California laws regarding uniforms leave more questions than answers.
The California Code of Regulations defines a uniform as, “apparel and accessories of distinctive design or color.” As to what defines a distinctive design or color is anybody’s guess. The best businesses can do in California is turn to the labor commission, which has issued non-legally binding opinions on the issue.
“In an old opinion letter, the Department of Labor said the real focus of the uniform policy is to permit employees to be able to switch jobs without having to buy a whole new uniform,” Kitchin says.
Experts agree that whether a certain dress policy is appropriate depends on the industry. Whereas a white T-shirt and black pants might constitute everyday wear for one industry, it might not pass muster for another.
“It might be that people who work in the food industry may have black shirts, but if you work in a normal office environment, you don’t see that many black shirts on people,” Dixon says. “Therefore, that black shirt could be seen as a pretty distinctive color.”
For clothing retailers, the style of merchandise can play a role. Because Chico’s clothing line is so different from its competitors’ clothes, it would have been more difficult for the company to defend its actions in court.
“If an employer has a policy saying employees must wear our clothes or clothes similar to our line and the merchandise is very distinctive and not easily purchased elsewhere, it will be tougher to argue that the employee has a choice,” says Lynne Hermle, a partner at Orrick, Herrington & Sutcliffe. She represented GAP/Banana Republic in a similar suit.
Still, there are even more hairs that can be split, including locale. What may be common attire for a foodservice employee in Northern California might differ greatly from the style of sunny Southern California.
“It’s a good idea to ask employees and job applicants about the wardrobe they already own,” Dixon says. “This way you can better determine whether it is a standard piece of apparel or puts a burden on employees.”
It’s not just California that stipulates how employers can dictate fashion dos and don’ts. A number of states have laws that parallel California’s; however, they vary in their strictness. Colorado, Montana, Washington and Oregon are just several of the 15 states with similar statutes.
Companies in states that don’t have such laws still must adhere to a federal standard. Under the FLSA, an employer must provide employees with a uniform if the cost of the uniform would cut an employee’s wages below the federal minimum standard.
“Under federal law, highly paid, non-exempt employees can be told to buy their uniforms,” Dixon says. “When you think of other jurisdictions with respect to uniforms, at a minimum you have to consider the federal standard.”
In addition, uniform laws–and increasing employee awareness of them–put many industries at risk for lawsuits.
“There are a lot of industries this could apply to,” says Bob McKinley, a partner at Lathrop & Gage. “Truck drivers and delivery drivers are frequently required to wear uniforms. In most of these cases, though, the employers would normally furnish the uniforms anyway because employees are really restricted in where else they could use them.”
Even when complying with states’ uniform-related codes, there is always the possibility of a maverick manager who strays from written policy.
“Companies need to train all their supervisors and managers both as to what their policies are and to make them aware that those policies are going to be enforced,” McKinley says.