Hunton Employment & Labor Perspectives

California Labor Code §2802 requires employers to reimburse employees for all “necessary expenditures” incurred by an employee in the discharge of his or her duties. Business travel expenses fall into this category, as do uniforms, and even the portion of personal cell phone costs that can be attributed to business use. Thus, theme-based businesses that clothe employees in specialized uniforms or costumes (like the sailor outfits in Season 3 of Stranger Things) must provide those specialized outfits or reimburse employees for the expenses incurred in buying and maintaining them.

But what about footwear?  When are shoes part of a specialized uniform, and when are they just shoes?  This issue was before the court in Townley v. BJ’s Restaurants, Ltd., 37 Cal. App. 5^th 179 (3^rd  Dist. 2019).  BJ’s adopted a safety policy that required all hourly employees to wear black, slip-resistant, close-toed shoes, and declined to reimburse its employees for the cost of the shoes. Krista Townley, a waitress, brought PAGA and other claims against the restaurant alleging the failure to pay for slip-resistant shoes was a violation of Section 2802.

Wage Order 5, which applies to the restaurant industry, defines “uniforms” to include “wearing apparel and accessories of distinctive design or color.”  BJ’s policy did not require employees to purchase a specific brand, style or design of shoes, and employees were free to wear the shoes outside of work.  The court decided that this took the shoes out of the uniform category. Guided by the reasoning in an unpublished Ninth Circuit decision which addressed the same rule at a different restaurant, the court in Townley referenced a DLSE opinion letter which explained that reimbursement is not required for “basic wardrobe items” that are “generally usable in the occupation,” such as white shirts, dark pants and black shoes of unspecified design. DLSE Opinion Letter No. 1990.09.181 (1990).

Would the result be the same under California’s workplace safety laws?  The appellate court in Townley was able to skirt the issue of California’s separate workplace safety laws because Townley did not pursue a theory she initially had raised in the trial court: that failure to reimburse for the cost of the slip-resistant shoes violated Labor Code Sections 6401 and 6403.  Those laws obligate employers to furnish “safety devices and safeguards” that make the workplace “safe and healthful,” and to do everything “reasonably necessary to protect the life, safety, and health of employees.”

Both federal and California OSHA require employers to ensure that employees have footwear sufficient to protect against workplace hazards such as falling or rolling objects, objects that pierce the sole of the shoe, electrical shocks, poisonous substances, or crushing or penetrating actions.  29 C.F.R. § 1910.136; 8 C.C.R. § 3385.  But, Federal OSHA exempts employers from paying for “non-specialty safety-toe protective footwear” if the shoes can be worn outside of work.  29 C.F.R. § 1910.132(h)(2).  Based on this regulation, the Townley trial court held that BJs was not liable to Townley under Labor Code Sections 6401 and 6403.

California law does not have an analogous exemption to Section 1910.132. The California Supreme Court has interpreted the words “provide” and “furnish” in Labor Code § 6403 in their ordinary sense to mean that the employer must pay for needed protective equipment.  Bendix Forest Product Corps. v. Division of Occupational Safety and Health, 25 Cal.3^rd 465, 471-473 (1979).  Thus, CalOSHA’s enforcement position is that employers must pay for safety footwear.

This being so, the extent to which restaurants like BJs must pay for safety-related footwear remains an open question.  The hazards enumerated in the California footwear regulation for which protection is required (electrical hazards, hot, corrosive, poisonous substances, falling objects, crushing or penetrating actions, abnormally wet locations) may not be those to which the average server in the average restaurant is exposed. Conceivably, however, a server might be required to maneuver through a crowded kitchen with heavy pots, boiling liquids, and hot plates.  Had the plaintiff in Townley created a record of such hazards, the result on the workplace safety issues may have been different.

Employers should assess the specific foot hazards to which each category of worker is exposed, in the kitchen or otherwise, and support a decision not to reimburse employees for footwear with a well-reasoned analysis of the reasonable predictability that employees are or will be in the zone of danger the California  regulation seeks to protect against.