Plaintiff’s Request for Shoe Reimbursement Slips Out of Court

Employment Law

Interpreting California Labor Code Section 2802, an appellate panel in the state ruled that an employer was not required to reimburse its employees for the cost of slip-resistant shoes.

Krista Townley worked at a BJ’s restaurant in Stockton, California, as a server from approximately April 2011 to April 2013. To avoid slip-and-fall accidents, BJ’s adopted a safety policy that required all hourly restaurant employees to wear black, slip-resistant, closed-toe shoes. The policy did not require employees to purchase a specific brand, style or design of shoes; nor did the policy prohibit employees from wearing their shoes outside of work.

During her employment, Townley purchased a pair of canvas shoes that complied with BJ’s policy. She was not reimbursed for the shoes, which was consistent with BJ’s policy and practice.

In 2014, Townley filed a class and representative action against her former employer, alleging a Private Attorneys General Act (PAGA) claim for violation of Labor Code Section 2802, which requires that an employer reimburse “employee[s] for all necessary expenditures … incurred by the employee[s] in direct consequence of the discharge of [their] duties.”

A trial court judge granted the BJ’s motion for summary judgment, and Townley appealed. She told the court that because BJ’s required its employees to wear the shoes as part of a company safety policy, it had to reimburse its employees for their cost pursuant to Section 2802.

The appellate panel disagreed, affirming summary judgment for the employer.

While restaurant employers are required to pay for their employees’ work clothing if it is part of a “uniform” or if the clothing qualifies as certain protective apparel regulated by the California Occupational Safety and Health Act (Cal-OSHA) or the Occupational Safety and Health Act (OSHA), the shoes Townley purchased for her job at BJ’s were not part of a uniform, the court said.

The court relied on an unpublished decision from the U.S. Court of Appeals for the Ninth Circuit, where a server at Denny’s similarly sought reimbursement for the cost of slip-resistant shoes.

In that case, the federal appellate panel looked to an opinion letter from the state’s Division of Labor Standards Enforcement (DLSE), which allows employers to specify 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.

If a required black or white uniform or accessory does not meet the test of being generally usable in the occupation, the employee may not be required to pay for it, the DLSE said.

Relying on the DLSE opinion letter and the Ninth Circuit opinion, the court found Townley failed to overcome the “generally usable in the occupation” standard.

“We conclude that BJ’s is not required, as a matter of law, to reimburse its employees for the cost of the slip-resistant shoes at issue in this case under [S]ection 2802,” the court wrote. “The cost of the shoes does not qualify as a ‘necessary expenditure’ within the meaning of the statute. … Townley has not argued that the slip-resistant shoes she was required to purchase were part of a uniform or were not usual and generally usable in the restaurant occupation. Further, she does not cite any authority holding that an employer is required, under [S]ection 2802, to reimburse an employee for basic, non-uniform wardrobe items, such as the slip-resistant shoes at issue in this case.”

To read the opinion in Townley v. BJ’s Restaurants, Inc., click here.

Why it matters: The decision provides a valuable reminder to restaurant employers of the “usual and generally usable in the occupation” standard when it comes to reimbursement. Employers may identify basic wardrobe items of unspecified design without having to pay for them, as long as the uniform or accessory meets the test of being generally usable in the occupation.



pursuant to New York DR 2-101(f)

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