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.