Millions of Americans have jobs that require them to sport a uniform of some sort. This is especially true in retail, food service, hospitality, and other public-facing industries where uniforms further the brand and aid customers in identifying employees. But should — and can — employers require that workers fork over their own money to cover the costs of these outfits?
In general, the answer is “yes…but.”
It’s a bit confusing because the Dept. of Labor’s own fact sheet on the topic [PDF] first states that “if the wearing of a uniform is required by some other law, the nature of a business, or by an employer, the cost and maintenance of the uniform is considered to be a business expense of the employer.” But what immediately follows are all the rules on when and how much an employer can charge for uniforms.
So which is it?
“This has to do with what we refer to as the ‘Klinghoffer rule,’” a rep for the Dept. of Labor’s Wage and Hour Division tells Consumerist. “In U.S. v. Klinghoffer Bros. Realty Corp., a 1960 2nd circuit decision, the judge ruled that due to the wording in the Fair Labor Standards Act, all that can ever be enforced for non-overtime hours (0-40) is the federal minimum wage, currently $7.25/hour. So, even if the cost of the uniform is considered to be a business expense of the employer, it wouldn’t constitute a violation unless the employee paying that cost causes his or her earning to fall below $7.25/hr.”
And so, much like the issue of docking waiters’ wages for walk-outs, the answer to this question has a lot to do with how much the employee earns.
Per the FLSA, an employer can only charge an employee for a uniform to the extent that the employee still earns at least minimum wage.
The DOL gives the example of a uniformed employee making $7.75/hour, fifty cents more than the federal minimum wage. If that employee works 30 hours in a week, the most that can be taken out of that paycheck is $15 ($.50 x 30). However, the employer may not be on the hook for the remaining cost of the uniform, as the law allows prorating of these costs over multiple paydays. So a $45 uniform could be spread out over three weeks of pay for someone earning $7.75/hour.
Thus, for anyone making more than minimum wage, the general answer is yes, your employer can require you to pay for your uniform.
But there is a large segment of the workforce that both wears uniforms and has a base pay rate below the minimum wage level — tipped employees, made up mostly of restaurant servers and bartenders.
Since these employees earn as little as $2.13/hour (plus tips), and since the law says tips belong solely to the employee (except in the case of agreed-upon tipping pools, in which the money is shared by multiple employees), requiring an employee to pay for their uniform out-of-pocket would be a violation of the FLSA.
It’s not only direct paycheck deductions for the cost of the uniform that can be problematic. If an employer requires an elaborate costume and requires the employee to pay for the maintenance and upkeep of that uniform, it could be a violation under the FLSA.
And employers can’t get around the law by requiring that employees pay in cash for their uniforms. So whether it comes out of your paycheck our out of your wallet, the minimum wage requirements are still in place.
Employees who believe they are unjustly being charged for the cost of purchasing or maintaining a uniform should contact the Dept. of Labor’s Wage and Hour folks. This page on the DOL website lists all the regional Wage and Hour offices, or you can call 1-866-4USWAGE (1-866-487-9243) to be directed to the office near you.