by Michelle Ferber and Ben McDonald
In a hearing before a three judge panel of the 9th Circuit Court of Appeals on June 4, 2015, a former employee of Denny’s asked the court to reconsider a lawsuit against the restaurant chain regarding the financial burden of special non-slip footwear the chain requires its employees to wear on the job. The case was originally filed in 2011 by former manager Rolando Lemus as a putative class action under the Private Attorney General Act, which allows a private citizen to seek civil penalties against an employer, not only on behalf of himself, but on behalf other current or former employees. Lemus claims that Denny’s illegally requires its employees to wear specific non-slip shoes purchased from a specific vendor, and then deducts the cost of the shoes from employees’ paychecks. According to Lemus, Denny’s has a deal with the shoe company, Shoes for Crews, in which the company gives Denny’s $10,000 toward any workers’ compensation claim for an employee who was wearing the special shoes when they slipped.
At the center of the legal battle is whether the shoes are considered protective equipment or merely part of the required uniform. Also at play in the case is the issue of preemption, the principle that when a federal and state law conflict, the federal law will govern. Denny’s argues that the non-slip shoes are protective equipment and therefore under the purview of the federal Occupation Safety Health Administration (OSHA) regulations. The OSHA regulations require employers to pay for shoes that specifically protect an employee from having his or her foot crushed or punctured, but not for shoes that protect the employee from slipping. Lemus argues that the shoes are not protective equipment but just part of the uniform required by Denny’s and therefore not within the scope of the OSHA regulations. As such, state law and California Wage Order No. 5 (CWO-5) applies, which requires employers to pay for employee uniforms, including the shoes.
In other words, if the non-slip shoes Denny’s requires its employees to wear fall under the protections of OSHA as protective equipment, as Denny’s argues, then the federal OSHA regulations govern and the fact that the OSHA regulations do not include protective equipment designed to prevent slipping means that Denny’s is not required to pay for the shoes. If however, as Lemus argues, the shoes are considered part of the required uniform, then the shoes fall outside of the OSHA regulations so that the state law CWO-5 applies and Denny’s has to pay for them.
In 2013, U.S. District Court Judge Cathy Ann Bencivengo granted summary judgment to Denny’s after ruling that the shoes fell within the scope of OSHA as protective equipment, and because the OSHA regulations do not include shoes meant to protect employees from slipping, Denny’s was not required to pay for the shoes. The Case is now on appeal to the 9th Circuit.
As this case demonstrates, passing on the cost of uniforms or clothing will continue to be strictly scrutinized, under both federal law and California’s Labor Code.
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.