A hot-button issue in California is whether an employer is required to pay for or reimburse an employee for shoes that are required as a condition of employment. A recent ruling by the California Court of Appeal highlights the complexity of the issue and lack of concrete guidance on a critical question: whether California workplace safety law requires an employer to pay for nonspecialty safety shoes, such as generic steel-toe boots, that the employer allows the employee to wear off the jobsite.
An employer’s failure to properly pay for or reimburse for the shoes it requires its employees to wear as a condition of employment can expose the employer to civil liability and/or regulatory enforcement by California’s Division of Occupational Safety and Health (Cal/OSHA). Indeed, there has been a dramatic uptick in both civil class action claims against employers and regulatory enforcement by Cal/OSHA alleging failure to pay for or reimburse for the cost of shoes required as a condition of employment. These difficult scenarios range from generic waterproof shoes requirements in food processing plants to nonspecific requirements for work boots to be worn on construction sites.
In Townley v. BJ’s Restaurants, Inc., No. C086672 (June 4, 2019), the California Court of Appeal ruled that under California Labor Code section 2802 and the Industrial Welfare Commission’s Wage Order No. 5 applicable to the restaurant industry, BJ’s Restaurants was not required to pay for the cost of the slip-resistant shoes that it required its employees to wear as a condition of employment. In so holding, the court relied on Wage Order No. 5, which provides that a restaurant employer must pay for its employees’ work apparel only if it is a “uniform” or if it qualifies as certain protective apparel regulated by Cal/OSHA or the federal Occupational Safety and Health Administration (OSHA).
Section 2802 provides that employers are required to reimburse their employees for “necessary expenditures … incurred by the employee[s] in direct consequence of the discharge of [their] duties.” Thus, if slip-resistant shoes were part of a uniform or apparel regulated by Cal/OSHA or OSHA, then pursuant to section 2802, BJ’s Restaurants would have been required to reimburse its employees for the cost of the shoes. The court relied on a California Division of Labor Standards Enforcement (DLSE) opinion letter to find that the plaintiff had not demonstrated that the slip-resistant shoes constituted a “uniform” within the meaning of the Wage Order No. 5:
The definition and [DLSE] enforcement policy is sufficiently flexible to allow the employer to specify basic wardrobe items which 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 emplolyee [sic] may not be required to pay for it.
The court found that because the plaintiff did not argue that the slip-resistant shoes were part of a “uniform” or were not usual and generally usable in the restaurant occupation, the employer was not required to reimburse the plaintiff for the slip-resistant shoes under Labor Code section 2802.
However, even though the court held as such, given that the plaintiff had not attempted to characterize the shoes as apparel regulated by Cal/OSHA or OSHA, the court did not reach the issue of whether the employer could be obligated to pay for the slip-resistant shoes under Cal/OSHA or OSHA. This unanswered question is bad news for California employers, as it is unsettled whether an employer is required to pay for nonspecialty protective shoes required as a condition of employment, such as generic work boots. It remains unsettled because there is a conflict between Cal/OSHA and OSHA regulations regarding generic nonspecialty protective shoes.
Shoes as Personal Protective Equipment
Under federal OSHA regulations, which were amended in 2008, an employer is required to provide personal protective equipment, including certain specialty protective shoes, at no cost to the employee. However, the federal OSHA regulations also contain an exemption that does not require the employer to pay for generic nonspecialty shoes, such as steel-toe boots, which the employer permits to be worn off the jobsite. Further, a 2011 OSHA directive interpreted this regulation as not requiring employers to “pay for non-specialty shoes that offer some slip-resistant characteristics, but are otherwise ordinary clothing in nature.”
Consistent with the federal OSHA regulations, Cal/OSHA regulations provide that “[a]ppropriate foot protection shall be required for employees who are exposed to foot injuries from electrical hazards, hot, corrosive, poisonous substances, falling objects, crushing or penetrating actions, which may cause injuries or who are required to work in abnormally wet locations.” Also consistent with federal law, California law generally provides that, if protective equipment is required by Cal/OSHA, the employer is responsible for the cost of the protective equipment.
However, California law significantly diverges from federal law when it comes to nonspecialty safety shoes that can be worn off the jobsite. Under Cal/OSHA, there is no corresponding provision that specifically exempts employers from paying for the cost of generic nonspecialty safety shoes, such as steel-toe boots. Indeed, in 2012, the California Occupational Safety and Health Standards Board proposed the adoption of a regulation similar to the federal regulation, which exempted employers from paying for the cost of nonspecialty safety footwear. The proposed regulation initially contained exceptions despite the California Occupational Safety and Health Standards Board’s having noted that “existing case law requiring employers to pay for [personal protective equipment] is more effective than the federal standard, because California enforces the employer’s duty to pay for safety devices and safeguards without the exceptions provided in the federal standard.” The regulation was ultimately not adopted. Consistent therewith, Cal/OSHA has taken the stance that if an employer requires shoes for safety purposes, whether specialty or nonspecialty, the employer must pay for the cost of those shoes.
In contrast, California employers have argued that the federal OSHA regulation exempting employers from paying for the cost of generic nonspecialty safety shoes should control in California. Indeed, in Townley, the trial court originally granted BJ’s Restaurant’s motion for summary judgment finding that the federal OSHA regulation exempting employers from paying for the cost of nonspecialty safety shoes controlled in California because California did not adopt a Cal/OSHA regulation requiring employers to reimburse employees for the cost of such shoes—and thus, BJ’s Restaurants was not required to reimburse for the cost of the slip-resistant shoe. However, as noted above, the California Court of Appeal did not reach the issue of the applicability of Cal/OSHA and OSHA to these types of situations.
What does this all mean for California employers? The short answer is that, if an employer requires employees to wear shoes with safety characteristics as a condition of employment, it may want to assess whether it is required to reimburse employees for the cost of the shoes. An employer’s failure to pay for or reimburse an employee for the cost of shoes could expose the employer to potential civil claims or regulatory enforcement by Cal/OSHA.