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A putative class action suit in Camden, N.J.’s federal court charges a clothing store with violating wage-and-hour laws by making employees buy and wear its apparel on the job without reimbursement. The suit, Dykeman v. Charming Shoppes, 1:05 CV 2817, was filed on June 1 on behalf of New Jersey employees of Lane Bryant and two other chains, Fashion Bug and Catherine’s Plus. The chains are owned by Charming Shoppes Inc. of Bensalem, Pa. Lead plaintiff Christine Dykeman claims that as an employee of a Lane Bryant store in Mays Landing, she earned $7.50 an hour but her pay sometimes fell below the $5.15 minimum wage after factoring in unreimbursed wardrobe costs. “I think it’s pretty clear, as we interpret the New Jersey Wage and Hour Law [N.J.S.A. 34:11-56a1 et seq.], and as the facts have been set forth, the end result of their compensation of the sales personnel brings them below the minimum wage,” says plaintiffs attorney Jack Gorny, of Fox Rothschild in Atlantic City. The suit charges that state and federal laws and rules requiring employers to pay for uniforms should apply to Lane Bryant’s required apparel, even though it can be worn outside work. In particular, Gorny cites N.J.A.C. 12:56-1.2(a), which covers employers who require employees to wear any particular type of street wear. Employers must reimburse workers for such clothing if the worker is required to furnish more than one type, style or color of clothing in the course of a year, the code says. That appears to be the case at Lane Bryant, where workers had to update their wardrobes four to eight times a year to keep up with the seasons, he says. Charming Shoppes’ lawyer, Richard Rosenblatt of Morgan Lewis in Princeton, declines to comment on the suit, but Tony DeSabato, the company’s executive vice president of labor relations, says the company will “vigorously defend” itself. Gorny’s co-lead counsel, Gary Lynch of the New Castle, Pa., class action firm Carlson Lynch, says many clothing chains have policies similar to Lane Bryant’s, and his firm has made a business of suing them, with some success. In the past year, says Lynch, the firm settled suits filed against the Express and Abercrombie & Fitch chains in the Western District of Pennsylvania over mandatory employee clothing purchases. Class members received $100 to $300 in gift certificates, depending on their length of service, and both chains changed their dress codes as a result, he says. Carlson Lynch has several similar suits in state courts around the country — targeting American Eagle Outfitters in Pennsylvania and Bebe Stores in California. It also filed another suit against Charming Shoppes in Washington State. Lynch and Gorny say they’re not aware of any New Jersey court rulings covering clothing stores that require sales help to wear their employers’ fashions on the job. But in Reich v. Chez Robert Inc., 821 F.Supp. 967 (1993), the U.S. District Court in New Jersey ordered a restaurant owner to reimburse servers for uniform purchases and upkeep, finding those costs brought their pay below minimum wage. Male servers at the restaurant wore tuxedos and females wore black skirts and white shirts. Lynch says the Chez Robert case is “directly analogous” to the present one. “I don’t see the garments involved in the Chez Robert case as being any more distinctive in style or color that would make it any more a uniform than in this case,” he says. According to Lynch, the federal Fair Labor Standards Act, 29 U.S.C. 201 et seq., calls for each pay period to be evaluated separately in determining whether clothing purchases caused an employee’s wages to drop below the minimum wage, rather than averaging purchases over the entire period of employment. That means a big purchase could easily set an employee below the minimum for any given week. Steven Suflas, who represented the restaurant owner in Reich, says Charming Shoppes could find a viable defense in the mere fact that the garments in question are street clothes that can be worn off the job. Charming Shoppes might also defend itself by saying it doesn’t mandate any particular purchase level and that workers could get by on a couple of outfits, says Suflas, of Ballard Spahr Andrews & Ingersoll in Voorhees. “Where do you draw the line between the employer’s alleged underpayment and the employee buying out the store?” Suflas says.

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