Why it matters

The dismissal of a class action suit filed by employees against Denny’s Inc. seeking reimbursement for the cost of nonslip work shoes deducted from paychecks was affirmed by the Ninth Circuit Court of Appeals. The workers alleged that they were forced to pay the cost of special shoes purchased from Denny’s preferred shoe supplier, but a federal court judge dismissed the suit. On appeal, a panel of the Ninth Circuit affirmed the dismissal of the employees’ case, holding that the employees were not required to use Denny’s shoe supplier and that the national restaurant chain was not obligated to pay for apparel that was not part of the uniform. Pursuant to California Labor Code Section 2802, companies are only required to pay for uniform apparel that cannot be used at another job, the panel wrote, a standard that did not apply to the shoes at issue because the plaintiff failed to demonstrate that they could not be of general use.

Detailed discussion

When Rolando Lemus began working at a Denny’s restaurant, he was instructed to purchase black, slip-resistant footwear and was provided with an order form from a suggested vendor.

Seeking to represent a class of similarly situated workers, Lemus filed suit alleging that Denny’s policy regarding the purchase of shoes violated multiple sections of the California Labor Code. Employees should have been reimbursed for the footwear, he told the court, should not have had the cost of the shoes deducted from their wages, and were coerced to buy the footwear from Denny’s preferred third-party vendor.

A federal district court judge granted summary judgment to Denny’s, and in an unpublished opinion, the Ninth Circuit Court of Appeals affirmed the dismissal of the employee’s suit.

Section 2802(a) of the Labor Code mandates that “[a]n employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.” But Lemus did not present evidence that the provision requires employers to pay for nonuniform work clothing, the court said.

Under California law, “a restaurant employer must only pay for its employees’ work clothing if the clothing is 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)].”

Employers may specify basic wardrobe items which are “usual and generally usable in the occupation” (such as white shirts, dark pants, black shoes, and belts) that are of unspecified design without having to furnish such items, the panel explained. Only if the required uniform or accessory does not meet the test of being “generally usable,” then the employee does not have to pay for it.

“Lemus has not argued that the black, slip-resistant shoes that he purchased were part of a ‘uniform’ or were not ‘generally usable in the [restaurant] occupation,’ ” the court said, and his counsel conceded that the case was not a uniform situation. “Therefore, despite the general indemnification provision in section 2802, under California law, Denny’s is not required to provide the cost of slip-resistant footwear.”

The employee next asserted that Denny’s violated Section 221 by deducting the cost of the slip-resistant footwear from employee wages. The provision—which states “[i]t shall be unlawful for any employer to collect or receive from an employee any part of wages theretofore paid by said employer to said employee”—has an exception at Section 224 for “a deduction [that] is expressly authorized in writing by the employee.”

Denny’s employees ordered their shoes online by logging into their accounts using a personal password, expressly authorizing the wage deduction electronically, the panel wrote.

Finally, the court considered Lemus’ allegation that Denny’s violated Section 450 by “coercing” its employees to buy the shoes from its preferred vendor. Again, the panel sided with Denny’s. Prior case law finding such coercion has involved situations where the employer actually required the employee to purchase something from the employer or required workers to take something of value (such as meal credits) in lieu of wages.

Denny’s did not require its employees to purchase shoes from its preferred vendor and the dictionary definition of coerce—“[c]ompulsion by physical force or threat of physical force,” per Black’s Law Dictionary—did not support Lemus’ position.

“There is no evidence that Denny’s threatened Lemus or indicated that it would punish Lemus if he did not buy his shoes from its preferred vendor,” the panel wrote. “No one ever checked to see if his shoes were from the preferred vendor, and Lemus never checked any other employees’ shoes when he was a manager. Although Lemus’ facts, when taken in the light most favorable to him, show some pressure to purchase from the preferred vendor, Denny’s certainly did not utilize physical force or threat of force, nor did it exert overwhelming pressure on its employees.”

To access the decision in Lemus v. Denny’s Inc., click here.