It is well-known among employers that employees must be reimbursed for necessary expenditures and losses they incur in the discharge of their duties. (See Labor Code § 2802.) California Labor Code sections 6401 and 6403 go even further by requiring employers to furnish and provide safety equipment to employees free of charge. But must employees be reimbursed for the purchase of slip-resistant shoes that are not necessarily part of a uniform? This was the question answered in a recent published decision from California’s Third District Court of Appeal: Townley v. BJ’s Restaurants, Inc. in which the court determined that employees need not be reimbursed for the purchase of slip-resistant shoes, because they fail to qualify as a uniform work clothing.
In Townley, the plaintiff, Krista Townley, was a server at a BJ’s Restaurant in Stockton, California. Pursuant to the terms of BJ’s safety policy, she was required to wear black, slip-resistant, close-toed shoes while on duty. Since BJ’s did not reimburse Townley for the purchase of these shoes, she filed suit alleging two PAGA claims for Labor Code violations.
Townley claimed that employers are required to furnish and provide safety equipment to employees pursuant to Labor Code sections 6401 and 6403, and that BJ’s Restaurants’ failure to reimburse Townley for the cost of slip-resistant shoes constituted a violation of Labor Code section 2802.
BJ’s opposed these claims and filed a motion for summary judgment. It argued that it was not obligated to reimburse Townley for the cost of the slip-resistant shoes pursuant to the labor code because the shoes were non-uniform work clothing under California law. BJ’s also argued that reimbursement was not required because the Federal Occupational Safety and Health Act of 1970 (“OSHA”), which did not require reimbursement for slip-resistant shoes, preempted Labor Code section 2802’s mandate that employers reimburse employees. The trial court granted BJ’s motion for summary judgment, and Townley thereafter appealed the decision.
In its decision, the court of appeal assumed that section 2802 applied and did not decide any questions related to the applicability of OSHA or Cal-OSHA. Rather, the court of appeal noted and relied heavily upon the United States Court of Appeals, Ninth Circuit unpublished decision in Lemus v. Denny’s Inc. (9th Cir. 2015) 617 Fed.Appdx. 701.) In Lemus, the federal court had in fact addressed the exact same issue presented on appeal in Townley. In Lemus, the federal court determined that Labor Code section 2802 did not apply to an employee’s non-uniform clothing—which would include non-slip shoes that were not part of a work uniform and may be worn outside of the workplace.
The court in Lemus further pointed to California’s Division of Labor Standards Enforcement (“DLSE”), which clarified section 2802, noting the flexibility which allows an employer to require basic wardrobe items that are “usual and generally usable in the occupation, such as white shirts, dark pants, and black shoes and belts, all of unspecified design, without requiring the employer to furnish such items.” (Lemus v. Denny’s Inc. (9th Cir. 2015) 617 Fed.Appdx. 701, 703.) Black, slip-resistant shoes, the court determined, fell into this category.
Consequently, the court of appeal in Townley, persuaded by the reasoning in Lemus, determined that BJ’s was not required to reimburse its employees for the cost of slip-resistant shoes pursuant to Labor Code section 2802 on the basis that the shoes were non-uniform work clothing. Townley thus successfully serves to provide further guidance and definition to California’s reimbursement requirements, particularly in defining the line between uniform and non-uniform. Nevertheless, employers should continue to carefully consider their policies with regard to reimbursement for required employee clothing to avoid potential liability.
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