Does Your Restaurant’s Uniform or Dress Code Policy Comply With The Law?

Article contributed by Nija M. Davis-PedlarEllenoff Grossman & Schole LLP

In New York State, employers in the hospitality industry generally must pay for the purchase and maintenance of the uniforms they require their employees to wear in the workplace. Therefore, businesses are urged to familiarize themselves with the associated technical rules and regulations in order to maintain compliance and avoid violations of the law.

What Is A Required Uniform?

Under New York State law a uniform is “required” when an employer mandates that employees wear specific clothing in the workplace or while performing their job. Required uniforms also include clothing that must be worn to maintain compliance with federal, state, city, or local laws, rules, and regulations. An example of this may be clothing with an employer’s business name or logo. If such clothing is deemed a required uniform, the employer must provide the uniform to the employee free of charge and must provide enough attire to the employee for their average workweek. If the employee must purchase their uniform, the employer must reimburse the employee for the total cost by the next regularly scheduled payday. If the employer provides enough uniforms to cover an employee’s regularly scheduled weekly shifts and the employee wishes to purchase additional attire in excess of the number of uniforms required, an employer does not need to pay for or reimburse the employee for the cost of purchasing such additional uniforms.

Maintaining Required Uniforms 

Maintaining required uniforms includes any necessary washing, ironing, dry cleaning, alterations, repairs or any other maintenance needed for the required uniforms to be worn by employees in the regular course of business. In addition to purchasing required uniforms, as noted above, employers are also generally obligated to cover the costs of maintaining employees’ required work attire. Employers may send required uniforms out to be cleaned or maintain the required uniforms in-house at no cost to the employee. If an employer chooses not to maintain required uniforms, the employer must provide employees with uniform maintenance pay in addition to an employee’s regular wages. The amount of the maintenance pay that an employer must provide to the employee is a fixed amount based on the number of hours the individual employee works and may vary according to the county the employee is working in.

Recommendations for Hospitality Employers on How to Limit the Expense of Required Uniforms 

As the cost of uniform maintenance pay can quickly add up, employers can avoid the added costs of uniform maintenance pay by choosing attire that falls within the confines of the wash-and-wear exception. Under this exception, an employer will not be required to pay employees for uniform maintenance if all of the following conditions are met:

  1. The required uniform is made of “wash and wear” materials;
  2. The required uniform may be routinely washed and dried with the employee’s other personal garments;
  3. The required uniform does not require ironing, dry cleaning, daily washing, commercial laundering, or other special treatment; and
  4. A sufficient number of required uniforms are provided to the employee, or the employee is reimbursed by the employer for a sufficient number of required work attire consistent with the average number of days per week the employee works.

For example, assuming the above conditions are met, an employer would still be able to require its employees to wear a cotton shirt with the business’s logo on it and not be responsible for uniform maintenance pay. Conversely, if the employer required the employee to wear a silk shirt with the business’s logo, that would require the employee having it dry cleaned, and thus the employer would be responsible for the associated maintenance pay.

Another way employers can avoid the expense associated with uniform maintenance pay is to establish a dress code policy rather than requiring specific uniforms. Under a less formal dress code policy, employees would be allowed to wear ordinary clothing of a specific color or style rather than a specific shirt or pair of shoes, for example. To that end, when establishing and implementing a dress code, employers should be mindful to avoid specific name brands or requiring employees to purchase clothing from specific clothing stores or retailers, as this may trigger the rules and regulations associated with a mandatory uniform requiring an employer to purchase and maintain such items. An example of a dress code would be requiring all front-of-house employees to wear black pants and a white t-shirt, as opposed to black Levi’s 510 jeans and a white V-neck t-shirt from the James Perse store which would likely be deemed required attire.

Employers are also urged to consider having their employees’ uniforms laundered by an outside service. This option may be less burdensome for both the employee and the business, as the employee would be able to get dressed at work and turn their uniform in to be washed before the end of their shift, which would avoid having them carry their attire with them to and from work and taking the time to wash it themselves. Also, the business would not need to concern itself with computing the appropriate amount of uniform maintenance pay based on the hours the employee worked. Lastly, the cost to the business of using a commercial cleaning service may be less than the total costs of the maintenance pay.

EGS Nija Davis-PedlarNija M. Davis-Pedlar is an Associate in the Labor and Employment Practice Group at Ellenoff Grossman & Schole LLP in New York City. Ms. Davis-Pedlar has experience representing management in traditional labor relations, employment counseling, and wage and hour claims. Before joining Ellenoff Grossman & Schole LLP, Ms. Davis-Pedlar was an associate with The Realty Advisory Board on Labor Relations, where she aided in defending employers in the grievance and Arbitration process, and partook in the negotiation of collective bargaining agreements on behalf of employers. Nija M. Davis-Pedlar can be reached via email at [email protected] or by phone at 212-370-1300.

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