Uniforms Under the Fair Labor Standards Act
By Lehr Middlebrooks Vreeland & Thompson, P.C.
January 28, 2019
This article was prepared by Lyndel L. Erwin, Wage and Hour Consultant for the law firm of Lehr Middlebrooks Vreeland & Thompson, P.C.Prior to working with the firm, Mr. Erwin was the Area Director for Alabama and Mississippi for the U. S. Department of Labor, Wage and Hour Division, and worked for 36 years with the Wage and Hour Division on enforcement issues concerning the Fair Labor Standards Act, Service Contract Act, Davis Bacon Act, Family and Medical Leave Act and Walsh-Healey Act. Mr. Erwin can be reached at 205.323.9272.
Many employers are not aware of potential liabilities that are involved when employees are required to wear uniforms at work. With respect to uniforms there are two specific issues that employers must consider. First, even though the FLSA does not require employees to wear uniforms, it does not allow uniforms, or other items which are considered to be primarily for the benefit or convenience of the employer, to be included as wages. Therefore, 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. If the employer requires the employee to bear the cost, that cost may not reduce the employee's wage below the minimum wage or cut into overtime compensation required by the Act.
Definition of “uniforms”: Although there are no hard-and-fast rules in determining whether certain types of dresses are considered uniforms for purposes of section 3(m), the following principles are applicable:
a. If an employer merely prescribes a general type of ordinary basic street clothing to be worn while working and permits variations in details of dress, the garments chosen by the employees would not be considered to be uniforms.
b. On the other hand, where the employer does prescribe a specific type and style of clothing to be worn at work (e.g., where a restaurant or hotel requires a tuxedo or a skirt and blouse or jacket of a specific or distinctive style, color, or quality), such clothing would be considered uniforms.
c. Other examples would include uniforms required to be worn by guards, cleaning and culinary personnel, and hospital and nursing home personnel.
If an employee is paid an hourly wage of $7.25, the employer may not make any deduction from the employee's wages for the cost of the uniform, nor may the employer require the employee to purchase the uniform on his/her own. However, if the employee were paid $7.50 an hour and worked 20 hours in the workweek, the maximum amount the employer could legally deduct from the employee's wages would be $5.00 ($.25 X 20 hours). The employer may prorate deductions for the cost of the uniform over a period of paydays provided the prorated deductions do not reduce the employee's wages below the required minimum wage or overtime compensation in any workweek. Additionally, employers may not avoid FLSA minimum wage and overtime requirements by having the employee reimburse the employer in cash for the cost of such items in lieu of deducting the cost from the employee's wages.
With respect to maintenance and cleaning of uniforms, Wage Hour has established an enforcement policy regarding “wash-n-wear” uniforms that the employee may launder with his/her other clothes. They will accept the payment of $3.35 per week ($.67 per day) as an adequate reimbursement to the employee. If the employee is required to have his uniform dry cleaned, these costs cannot reduce the employee below the minimum wage. Of course, many employers choose to clean and maintain the uniforms and thereby ensuring that they are complying with the FLSA. As with the cost of uniforms, employees receiving an amount sufficient above the minimum wage to cover the maintenance costs are not required to receive any additional payments.
Often employers renting the required uniforms with a commercial laundry service and the rental contract states that the uniforms must be returned when the employee terminates his employment. If the employee, upon termination, fails to return his/her uniforms (causing the employer to pay for the uniforms), the employer is still required to pay the employee at least the minimum wage for his final hours worked.
The second issue involves the time an employee spends in changing into and out of his uniform. In most situations, employees are allowed to wear their uniforms home. In those instances, the time an employee spends in changing at home would not be work time as this time is specifically described in the “Portal to Portal” Act as “preliminary or postliminary” activities that are not compensable. When employers require the changing of clothes on the premises, Wage Hour contends that these activities are no longer “preliminary or postliminary” activities but are an integral part of the employee’s job and must be paid. This position was upheld by the U. S. Supreme Court in 2005. The Court stated that the donning (putting on the protective items) begins the employee’s workday and time spent walking from the change house to the employee’s workstation is also compensable. They also took the same position regarding time the employee spends walking back from his workstation to the change house and time the employee spends in doffing (removing the protective items).
There is one circumstance where the changing of clothes on the premises of the employer is not considered as work time. That is the situation where there is a collective bargaining agreement in effect at the pant that addresses the issue. Section 3(o) of the FLSA states that “...there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from the measured working time ... by the “expressed terms of or by custom or practice under a bona fide collective bargaining agreement applicable to the particular employee.” Thus, if a CBA states that the clothes changing time is not compensable, the employer does not need to pay for this time.
A situation where I see that employers have the greatest potential liability is where there is no CBA in effect and the employees are required to change clothes on the premises. There are certain circumstances where employers believe for cleanliness, safety, or other reasons, that the employee must change clothes on the premises. However, in doing so, employers may be obligating themselves to compensate the employee for this time. Employers that require employees to change into uniforms on the premises should review their pay policies related to the time spent in changing clothes ensure they are properly compensating their employees under the FLSA.