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Wage & Hour Law Update

New York Federal Court Holds That Standard Waiter Attire Is Not A “Uniform” Under Prior New York Regulations

By Noel P. Tripp on August 30, 2012
Posted in Minimum Wage, New York State

Effective January 1, 2011, the New York Department of Labor promulgated a new wage order covering the hospitality industry. However, due to the New York Labor Law’s six year limitations period, litigation continues addressing the propriety of various industry employer practices under the old regulations. In one such case, Judge Thomas J. McAvoy of the Northern District of New York just ruled that, apart from shirts which bore an Applebee’s logo, standard apparel worn by servers at various New York Applebee’s controlled by defendant franchisee was not a “uniform” under the old regulations. Roach v. T.L. Cannon Corp., 2012 U.S. Dist. LEXIS 120507 (N.D.N.Y. Aug. 24, 2012).  This means that the employer was not obligated to purchase such items, reimburse employees for purchasing such items or provide a laundry allowance.

The apparel in question in Roach consisted of  “black, non-slip shoes; black pants; black shirts; jeans; khaki pants; plain, non-descriptive t-shirts; and plain, non-descriptive baseball-style caps.” The Court considered the three plaintiffs’ testimony regarding the nature of the apparel and where and how they procured it. Id. at fns. 10-13. The Court concluded that there was “no evidence that the employer imposed any stylistic requirements of the garments other than color, or, in the case of caps and t-shirts, that they be non-descriptive.” The Court also noted that “the employees purchased their wardrobe items at various footwear and clothing retailers open to the general public, leading to the conclusion that the items were of the nature that an objectively reasonable person would wear outside of a restaurant employment situation.” Thus, the clothing in question did not constitute a uniform. Plaintiffs were allowed to go forward on their claim that the cost of laundering apparel with the Applebee’s logo brought plaintiffs compensation below the tip credit minimum wage. 

New York’s new hospitality Wage Order revised the definition of uniform from that at issue in Roach to any “clothing required to be worn while working at the request of an employer, or to comply with any federal, state, city or local law, rule, or regulation, except clothing that may be worn as part of an employee’s ordinary wardrobe.” 12 NYCRR § 146-3.10. However, Roach provides support for employer arguments (and industry practice) that the types of generally-available apparel at issue in the case are part of an “ordinary wardrobe.”  It is incumbent upon industry employers in New York State to analyze their uniform practices—and all other wage hour practices—under the wage order and of course, overriding federal law. 

Tags: hospitality industry wage order, logo, Minimum Wage, new york, new york labor law, New York State, ordinary wardrobe, required uniform, uniform, wash and wear
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Photo of Noel P. Tripp Noel P. Tripp

Noel Tripp is a Principal in the Long Island office of Jackson Lewis P.C., one of the largest law firms in the United States devoted exclusively to representing management in labor and employment matters. Since joining Jackson Lewis P.C. as a summer associate…

Noel Tripp is a Principal in the Long Island office of Jackson Lewis P.C., one of the largest law firms in the United States devoted exclusively to representing management in labor and employment matters. Since joining Jackson Lewis P.C. as a summer associate in May 2005, he has practiced exclusively in employment law and has been involved in matters pending before federal and state courts and administrative agencies covering the gamut of employment-related matters from discrimination and workplace harassment to wage/hour disputes and affirmative-action compliance. His principle focus is the defense of class and collective action lawsuits under federal and state wage-and-hour laws.

Mr. Tripp is a graduate of Dartmouth College (A.B. 1999), and Fordham Law School (J.D. 2006). Prior to attending law school, Mr. Tripp was a complex commercial litigation paralegal at a large national law firm in Los Angeles, California. He is admitted to practice in the state of New York.

Education

  • Fordham University, J.D., 2006
  • Dartmouth College, A.B., 1999

Admitted to Practice

  • New York, 2007
  • New York – E.D. N.Y., 2008
  • New York – S.D. N.Y., 2008
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