How Walmart's 'Dress Code' Costs Employees
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How Walmart's 'Dress Code' CostsEmployees 
Some Walmart employees were recently angry about a new clothing mandate. Workers would have to wear khaki or black bottoms and navy blue or white collared shirts. Those who didnt have the right shirts, in particular (they all are supposed to wear khaki trousers or skirts now), would have to buy something to wear, even if they were at the minimum wage end of the Walmart pay spectrum. A mandated vest would be paid for by Wal-Mart Stores WMT -0.43% itself.
There was an interesting difference in language use. Workers spoke of the clothing requirement as uniforms. Company materials and representatives used the phrase dress code. At first it seemed the sort of formal language companies often prefer to use, like calling workers partners or associates. I sent an email request early last Friday afternoon through Wal-Marts media site. Although I did receive an emailed acknowledgment of the request, I heard nothing else. Some discussions with labor lawyers, however, suggest a likely rationale for the choice on Wal-Marts part, and that is money.
According to the Department of Labor, under the Fair Labor Standards Act, if the wearing of a uniform is required by some other law, the nature of a business, or by an employer, the cost and maintenance of the uniform is considered to be a business expense of the employer. An employer can require an employee to pay for a uniform, but the employees wage cannot as a result drop below the federal minimum wage.
But is a dress code something that conjures the thoughts of office buildings or parochial and private schools the same as a uniform? One labor and employment lawyer I spoke with, Brian Markovitz of the firm Joseph Greenwald & Laake, did some legal research to answer the question.
Markovitz, who typically works for employees in disputes, said that a U.S. Department of Labor wage and hour opinion letter from 2008 shows there is a technical distinction between a uniform and a dress code. In this case, the Department of Labor was answering a question about a group of restaurants:
The Employer operates restaurants and requires employees to wear dark-colored shoes without prescribing any particular quality, brand, style, model, or type. Aside from color, the only other requirements are that they not be open-toed and that, for safety reasons, they not have a slippery sole. Employees may wear shoes they already own when hired or may purchase shoes from any vendor they may choose. Employees are free to wear the shoes outside of work.
According to Markovitz, the situation would be analogous to a requirement that employees wear a shirt of a specific color with a collar. The Department of Labor indicated that there are two applicable principles:
a. If an employer merely prescribes a general type of ordinary basic street clothing to be worn while working and permits variations in details of dress, the garments chosen by the employees would not be considered to be uniforms.
b. On the other hand, where the employer does prescribe a specific type and style of clothing to be worn at work, e.g. where a restaurant or hotel requires a tuxedo or a skirt and blouse or jacket of a specific or distinctive style, color, or quality, such clothing would be considered uniforms.
Asking employees to wear a certain color or type of shirt would not be a uniform within the guidance from the Department of Labor, and at least one court has ruled in a similar fashion, said Markovitz. And if not a uniform, Wal-Mart or any other company would have no legal obligation to pay or ensure that an employee make at least federal minimum wage after the cost of the apparel. The exception would be the stores branded vests, which Wal-Mart pays for.
Whether intentionally done for this reason or now, by choosing a dress code, not a store uniform, Wal-Mart has completely and legally put the financial burden of the clothing intended to create a specific look on the employees and saved itself a lot of money, given that the company claims 1.3 million U.S. workers alone.
Although a representative had previously told me that the company had first made the announcement in July to give employees time to save up, people making $8 or $9 an hour, even with full-time hours, have little money available for additional expenses. Wal-Mart did remind employees that they could use their discounts to purchase the clothing at the store or its online site.
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Markovitz, who typically works for employees in disputes, said that a U.S. Department of Labor wage and hour opinion letter from 2008 shows there is a technical distinction between a uniform and a dress code. In this case, the Department of Labor was answering a question about a group of restaurants: