Vision Payroll

The US Department of Labor recently issued Administrator signed Opinion Letter FLSA2008-10. Although Opinion Letters only apply to the exact set of facts and circumstances presented in each case, they are a valuable aid in understanding current interpretations of the Fair Labor Standards Act (FLSA). This Opinion Letter discusses whether employers must pay for replacement uniforms for employees who repeatedly damage uniforms in non-work-related activities.

A tipped employee who worked in a dining facility received $2.13 in cash wages and the employer claimed a tip credit so that the employee received at least the federal minimum wage. The employer requires the employee to wear a uniform that is provided by the employer at no cost to the employee. The employer provides an adequate number of uniforms to employees “relative to the nature of their work assignments and job duties.” The uniform does not require any special laundering.

One employee damaged several uniforms while riding a skateboard on days that he wasn’t working. The employer wanted to know if it must continuously replace such uniforms at no cost to the employee or if the employee could be charged for the uniforms. Employers may not charge directly or indirectly for uniforms required as a condition of employment if the charge would reduce the employee’s wages below the required minimum wage or overtime pay. The employer must also replace uniforms damaged at work using the same guidelines. Employers may charge, however, both for additional uniforms voluntarily purchased by any employee beyond the normal allotment and for uniforms damaged by the employee during personal use without violating the FLSA.

State laws may provide rules that are more beneficial to the employee and must be followed. Contact Vision Payroll if you have questions about this Opinion Letter.

A former floorman and several former waitresses and dancers have filed an amended class action complaint against Schiek’s Palace Royale (Schiek’s), a live adult entertainment club in Minneapolis, owned and operated by VCG Holding Corp. (NASDAQ VCGH). Among the complaints, the plaintiffs allege that although Schiek’s charged patrons $22 for “twenty dance dollars”, plaintiffs only received $18 in exchange and dance dollars expired after fourteen days. Also, the waitresses and entertainers allege they were required to hand out free admission passes before reporting to work and were not compensated for their time doing so. The waitresses and dancers also allege that they were not compensated for time “spent working to meet Defendant’s appearance standards.” They further allege that they were required to pay for uniforms and other clothing of a “sexually provocative” nature, which “were not suitable for use on other occasions.” Waitresses were also allegedly required to pay if a patron left without paying, an incorrect bottle of liquor was served, or food was dropped. They allege that they did not consent to these deductions in writing and charges sometimes resulted in their being paid less than the Minnesota minimum wage.

The US Department of Labor recently issued Administrator signed Opinion Letter FLSA2008-4. Although Opinion Letters only apply to the exact set of facts and circumstances presented in each case, they are a valuable aid in understanding current interpretations of the Fair Labor Standards Act. This Opinion Letter discusses whether a requirement to wear a certain type of shoe constitutes a uniform. It also discusses whether the employer is allowed to deduct a portion of the cost of the shoes from the employee’s pay, even if such deduction causes the employee’s pay rate to be below minimum wage. In this case, the employer “requires employees to wear ‘dark-colored’ shoes without prescribing any particular quality, brand, style, model, or type.” Optionally, an employee may purchase such shoes from a vendor through a program administered by the employer that allows the employee to elect to have the employer pay the cost of the shoes and deduct the cost from the employee’s paycheck. Since the employer’s only requirements were the color and that the shoes have non-slip soles and not be open-toed, they were not considered to be part of a uniform. Also, as the shoes were not part of a uniform and the employer did not deduct more than the actual cost of the shoes, the shoes can be considered “other facilities” furnished by the employer and therefore part of the wages paid the employee. State laws may provide rules that are more beneficial to the employee and must be followed. Contact Vision Payroll if you have questions about this Opinion Letter.

An employee required to launder his work aprons by Starbucks Corporation (“Starbucks”) was not entitled to compensation under California law (Douglas O’Connor v. Starbucks Corporation, ND Cal, C 06-3706 VRW, July 14, 2008). Under an explanation of the relevant regulations by the California Industrial Wage Commission, “[e]mployers must maintain or provide a maintenance allowance for uniforms requiring ironing or dry cleaning or uniforms requiring special laundering for heavy soil.” In granting summary judgment, the court ruled that “Starbucks owes plaintiff a duty to pay such compensation only if the aprons require laundering separate from plaintiff’s regular laundry.” Since O’Connor, a former Starbucks barista, was unable to establish that the aprons required either dry cleaning or laundering separate from other articles as he had maintained, Starbucks owed no duty to compensate him.