Wage Law

A recent case illustrated the importance of understanding how employment laws differ between the public and private sector. Labor Code § 2802 provides, among other things, that

"An 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, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful."

In In re Work Uniform Cases (2005) 133 Cal.App.4th 328, the court held that Labor Code § 2802 did not require public entities to pay claims for costs related to employee work uniforms. For county and city employees, pay for uniforms is part of the employees' compensation and is considered like any other payment of wages, compensation, or benefits.

This determination creates a conflict between an employee's right to reimbursement or indemnification for employee expenses under Labor Code § 2802 and a public entity's power to determine the compensation for its employees and to bargain with employee representatives under the Meyers-Milias-Brown Act (Government Code § 3500 et seq.)

The conflict was resolved in two ways, both weighing against the employees. First and foremost, the Supremacy of state constitutional provisions over contrary statutory provisions renders Section 2802 powerless against contrary provisions in Article XI of the California Constitution, which confers upon public agencies the power to prescribe the terms and compensation for their employees. Statutes which provide otherwise, including, arguably, Labor Code § 2802, infringe upon that constitutional delegation of power. Secondly, the broader provisions of Section 2802 are trumped by the specific treatment of public employee uniform obligations established under Government Code § 19850.1, which provides that "state employees shall be responsible for the purchase of uniforms required as a condition of employment. The state shall provide for an annual uniform allowance to state employees for the replacement of uniforms."

The private sector operates under different rules. Employee uniforms must be paid for by the employer, and uniform expenses are treated like a component of employee compensation. The Division of Labor Standards Enforcement is authorized to collect, as unpaid wages, the costs of required uniforms. In Department of Industrial Relations v. UI Video Stores, Inc. (1997) 55 Cal.App.4th 1084. And virtually all of the IWC wage orders provide that "When uniforms are required by the employer to be worn by the employee as a condition of employment, such uniforms shall be provided and maintained by the employer. The term "uniform" includes wearing apparel and accessories of distinctive design or color." None of the wage orders, of course, apply to employees in the industries of government or government administration.