On June 4, 2019, the Court of Appeal, Third Appellate District issued an unpublished opinion in Krista Townley v. BJ’s Restaurants, Inc. holding that BJ’s Restaurants was not required to reimburse its employees for the cost of black, slip-resistant, closed-toe shoes that BJ’s required its restaurant employees to wear. Due to the lack of California case law addressing the issue, BJ’s requested the opinion be published in the Official Reports. On July 5, 2019, the Court of Appeal granted BJ’s request and ordered the opinion certified for publication. This is the first published opinion in California to adopt the Division of Labor Standards Enforcement’s (“DLSE”) interpretation of a “uniform” and to hold that an employer is not required to reimburse employees for the cost of “non-uniform” work clothing. Matthew Sonne and Jason Guyser of Sheppard Mullin represented BJ’s Restaurants in this matter.

Background

To avoid slip and fall accidents, BJ’s required its restaurant employees to wear black, slip-resistant, closed-toe shoes. Employees were not required to wear a specific brand, style or design of shoes. Employees were permitted to wear their shoes outside of work. During her employment, plaintiff purchased a pair of shoes in compliance with BJ’s policy. Pursuant to its policy and practice, BJ’s did not reimburse plaintiff for the cost of the shoes.

In April 2014, plaintiff filed a class and representative action against BJ’s seeking reimbursement for the cost of the shoes as well as penalties under the Private Attorneys General Act (“PAGA”). In October 2015, Plaintiff amended her complaint, removing the class claims, and solely sought PAGA penalties based on BJ’s failure to reimburse for the cost of the shoes. Plaintiff alleged BJ’s was required to reimburse employees for the cost of a required safety item under Labor Code sections 6401 and 6403. Plaintiff also alleged BJ’s was required to reimburse employees under Labor Code section 2802 because the shoes were a necessary business expense.

BJ’s filed a motion for summary judgment on the grounds that it was not required to reimburse employees for the costs of such shoes under the Labor Code. In opposing the motion, plaintiff abandoned her theory that she was entitled to reimbursement under Labor Code sections 6401 and 6403 and solely argued that she was entitled to reimbursement as a business expense under Labor Code section 2802. BJ’s argued that it was not required to reimburse employees for the costs of non-uniform work clothing under California law. The trial court granted BJ’s motion for summary judgment. The Court of Appeal affirmed the order, concluding that the shoes were not a “necessary expenditure” within the meaning of Labor Code section 2802. The shoes were not part of a “uniform” as that term is defined under California law and were generally usable in the restaurant occupation. Accordingly, the Court of Appeal ruled BJ’s was not required to pay for the costs of such shoes.

Significance

Prior to this case, there was not a single California case addressing expense reimbursement under Labor Code section 2802 for employer-mandated work clothing. In concluding that BJ’s was not required to reimburse its employees for the costs of slip-resistant shoes that it requires its employees to wear, the Court of Appeal relied on an unpublished opinion by the Ninth Circuit Court of Appeals (Lemus v. Denny’s (9th Cir. 2015) 617 Fed.Appx. 701) and California’s DLSE opinion letters.

Labor Code section 2802’s general indemnification provision broadly provides that “[a]n employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.”

In issuing the Wage Orders, the DLSE has established guidelines for uniforms required by an employer. “When uniforms are required by the employer to be worn by the employee as a condition of employment, such uniforms shall be provided and maintained by the employer.” (8 CCR § 11050 9(A).) “The term ‘uniform’ includes wearing apparel and accessories of distinctive design or color.” (8 CCR § 11050 9(A).)

Prior to this case, there was no published California case interpreting this critical section of the Wage Order regarding uniforms. Prior to Lemus, supra, the only interpretive guidance came from DLSE opinion letters. The DLSE interpreted the Wage Order as allowing an “employer to specify basic wardrobe items which 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.” (Cal. Office of the State Labor Comm’r, Div. of Labor Standards Enforcement, Dep’t of Indus. Relations, Opinion Letter No. 1990.09.181 (1990) (emphasis in original).) While helpful as an interpretive tool, the DLSE’s opinion letters are not binding on courts or litigants.

In Lemus, the Ninth Circuit was compelled to rely solely on DLSE opinion letters due to the lack of a single California case addressing the issue. The Ninth Circuit adopted the DLSE’s interpretive guidance and held that an employer “must only pay for its employees’ work clothing if the clothing is a ‘uniform’ or if the clothing qualifies as certain protective apparel regulated by CAL/OSHA or OSHA.” (Lemus, supra, 617 Fed.Appx. at p. 703.) While Lemus is persuasive, it is not citable as precedential authority in California state court.

The BJ’s Restaurants case is the first California case to adopt the DLSE’s interpretation regarding the definition of a “uniform” and an employer’s expense reimbursement obligations regarding non-uniform work clothing. The Court of Appeal’s decision to publish the opinion is critically important because it finally provides California employers with some clarity regarding the interplay between Labor Code section 2802’s broad general indemnification provision and the limits the “uniform” provision within the Wage Order imposes.

For now, numerous California employers who require their employees to wear slip-resistant shoes have solid footing for not reimbursing their employees for the cost of such shoes.