Not All Deductions Are 'Uniform' Under The FLSA

The federal Fair Labor Standards Act (FLSA) establishes minimum wage and overtime requirements, period. The FLSA does not explicitly require that employers cover all work-related costs, nor, does it do so by specifically prohibiting employers from imposing work-related costs on employees. Indeed, the FLSA permits an employer to impose these costs in their entirety on non-exempt employees. In other words, at least for FLSA purposes, it is not a matter of whether the employer can impose a cost, but the extent to which it can be imposed at one time depending on an employee's wages.

As with many aspects of the FLSA though, the devil is in the details when it comes to compliance. With respect to non-exempt employees, an employer violates the FLSA to the extent that true work-related costs directly or indirectly cut into the minimum wage or any part of the overtime wages, collectively, the FLSA-protected wages due. Without careful consideration of the specific facts at hand, employers are at risk of committing inadvertent FLSA violations when it comes to passing certain costs on to an employee. Making deductions from an employee's pay, whether through payroll or indirectly, for a required "uniform" is a good example of this issue.

Are There FLSA-Implications? Beware of Over Simplifying Categories

Employers often need to conduct an item-by-item analysis to determine which costs can cut into FLSA-protected wages. Some prohibited costs are fairly obvious, such as the typical "uniform" shirt with the company's logo. However, the same cannot be said for other articles of clothing commonly referred to as uniforms.

Indeed, the U.S. Department of Labor (USDOL) has long maintained that certain clothing, while required by the employer, is of such a character that it may be reasonably worn outside the context of work and therefore does not constitute a "uniform". As USDOL's internal Field Operations Handbook notes at Section 30c12:

If an employer merely prescribes a general type of ordinary basic street clothing to be worn while working and permits variations in details of dress, the garments chosen by the employees would not be considered to be uniforms.

Applying this principle, USDOL has opined that "white shirts", "white blouses", "shirts that do not bear any logo", and "trousers of a dark color," among other types of clothing, do not constitute a uniform and instead constitute "basic street clothing." The same principles apply with respect to required...