Help Wanted: Can employer force workers to shell out for $78 shirts?

November 17, 2014 by CARRIE MASON-DRAFFEN / carrie.mason-draffen@newsday.com

DEAR CARRIE: My company has changed our dress code and now requires us to wear a specific style and color of clothing. We have to wear a button-down dress shirt from a choice of three styles in black or white. We have to wear black pants and a black cardigan or sweater, again all of a certain style. But here's the kicker: We must purchase them from the lone retailer the company has designated. So even if we find the clothing for substantially less elsewhere, we aren't allowed to buy it. The preferred retailer sells the shirts for $78 a pop. I cannot afford that and have seen look-alikes at other stores for a lot less. Can the company tell us where to buy our clothes?

-- Dressed for Distress

DEAR DRESSED: Your question is tricky because it falls outside of clearly defined statutes regarding required clothing on the job. Those statutes address the more straightforward issues about who pays for the clothing when it's a uniform or when it doubles as street clothes.

"When an employer requires employees to wear clothes that can realistically be worn only as a work uniform, New York requires the employer to reimburse the employee in full the next payroll date," said employment attorney Richard Kass, a partner at Bond, Schoeneck & King in Manhattan. "But when an employer requires employees to wear a type of clothing that can also be worn in everyday life, there is ordinarily no requirement that the employee be reimbursed."

Your question adds the complicated wrinkle of an employer telling you where to buy your clothes.

"The reader's situation is tricky, because although the clothes can be worn anywhere, and are therefore not a real uniform, the employer is requiring the employee to purchase them from a designated source, as if it were a uniform," Kass said.

New York's regulations for hotels and restaurants require employers to reimburse employees for the cost of required clothes that the employees cannot select on their own, he said.

"So if the reader works for a hotel or restaurant, the employer must reimburse the employee for the clothes," he said. "Giving the employee a selection of three styles from the same vendor is probably not sufficient to escape this requirement, though the regulations are not perfectly clear on that point."

But the regulations are less clear for other industries, he said.

"I would not be surprised if the New York Department of Labor were to take the position that if an employer dictates where its employees buy their work clothes, then it must reimburse the employees for the clothes," he said. "But a court might disagree."

Minimum wage laws offer some relief when employees have to pay for required clothing.

"The employer must make sure that all employees receive the minimum wage each week, even after any required purchases," Kass said. "For example, if an employee is paid $100 more than the minimum wage for a particular week, then the employer cannot require the employee to pay more than $100 that week for work clothes that must be purchased at a designated store."

And a union contract or individual contract may restrict how much leeway employers have on this issue.

Lastly, if the retailer is closely linked to the employer, then the requirement to use that vendor might be considered a kickback, which would be illegal, Kass said.

He suggests a simple solution. "Maybe if the reader would tell the employer where cheaper look-alike clothes can be found, the employer will change its mind," he said. "In that case, no one will have to deal with all the legal uncertainties."

For more information, go to http://on.ny.gov/1t5kq5T for more on New York State law and uniforms.