FLSA2008-10 — Replacement of tipped employee’s uniform damaged during personal use

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

FLSA2008-10

Oct 24, 2008

Dear Name*:

This is in response to your letter requesting an opinion regarding cost reimbursement for
uniforms provided to a tipped employee without charge that are damaged in a non-work
related context. It is our opinion that if the employer supplies a reasonable and sufficient
number of wash and wear uniforms and replaces any uniforms that are damaged in the
course of work-related duties, the employer has satisfied its obligations under the Fair
Labor Standards Act.
∗

This situation involves an FLSA covered, tipped employee who regularly receives more
than $30 a month in tips. In accordance with the FLSA, the employer pays not less than
$2.13 an hour in direct wages, and the employer claims tips actually received as a tip
credit allowance to make up the difference for the applicable federal minimum wage.
The tipped employee works in a dining facility and is required to wear a uniform
provided by the employer. You cite Wage and Hour Opinion Letter FLSA-559, dated
April 5, 1991, which states in part that “where restaurant employers require that tipped
employees wear uniforms, the uniform is primarily for the benefit of the employer and
therefore any recoupment of the cost of the uniform would not comply with the FLSA if
it would reduce the employee’s wage below the applicable minimum wage or overtime
pay due the employee.”

In a discussion with a member of the Wage and Hour Division staff, you stated that the
employer provides a sufficient number of uniforms to the employees relative to the nature
of their work assignments and job duties. These uniforms are made of regular wash and
wear materials, are routinely washed and dried with other personal garments by the
employees, and do not require special laundering. The employer provides replacement
uniforms at no charge.

Your question here involves an employee who has damaged multiple uniforms while
riding a skateboard on days off work. You ask to what extent an employer is bound to
repeatedly supply additional uniforms when an employee wears and damages his
uniforms in a non-work-related context. You further ask whether an employer can, after
repeatedly replacing uniforms damaged in a non-work-related context, require an

∗
Unless otherwise noted, any statutes, regulations, opinion letters, or other interpretive material cited in
this letter can be found at
www.wagehour.dol.gov.

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employee to pay for his or her replacement uniforms, or whether the only alternative is to
terminate the employee.

The employees who wear the employer-required uniforms in your establishment are those
for whom the employer claims tip credit as part of wages. As you know, tipped
employees are those who customarily and regularly receive more than $30 a month in
tips. See 29 U.S.C. § 203(t); Field Operations Handbook (FOH) § 30d00(a). Tipped
employees must be informed in advance that the employer elects to use the tip credit and
the amount of tip credit claimed. See 29 U.S.C. § 203(m). The employer must be able to
show that employees receive at least the applicable minimum wage when wages and tips
are combined, and the employer must pay at least $2.13 per hour in cash wages. Also,
employees must retain all of their tips, except in the case of valid tip pool arrangements.
See FOH § 30d01(a).

Under 29 C.F.R. § 531.35, “[w]hether in cash or in facilities, ‘wages’ cannot be
considered to have been paid by the employer and received by the employee unless they
are paid finally and unconditionally or ‘free and clear.’ The wage requirements of the
Act will not be met where the employee ‘kicks-back’ directly or indirectly to the
employer . . . part of the wage delivered to the employee.” Moreover, section 3(m) of the
FLSA defines a tipped employee’s wage rate as the cash amount paid (at least $2.13) plus
an amount of tips sufficient to bring the employee to the minimum wage. Thus, for
employees earning only the required cash amount of $2.13 per hour, any amount of tips
an employee may receive in excess of the amount required to bring the employee’s pay to
the minimum wage may not be considered wages for purposes of the FLSA and may not
be the source of a deduction by the employer. All monies, both the wage payment of
$2.13 per hour and all tips received, must be paid to the tipped employee free and clear.

The FLSA further requires that expenses that are primarily for the benefit of the employer
cannot be counted as wages and thus must be paid by the employer (or reimbursed) if
failure to do so would bring the employee’s wages below minimum wage in any week.
See 29 U.S.C. § 206(a)(1); 29 U.S.C. § 203(m);
29 C.F.R. § 531.3(d). Uniforms required
by the employer to be worn while on duty are considered to be for the benefit or
convenience of the employer. Employees may not be required to pay for such items if,
by so doing, their wages would be reduced below the required minimum wage or
overtime compensation. See Wage and Hour Opinion Letter
FLSA2001-7 (Feb. 16,
2001) and Wage and Hour Opinion Letter Jan. 21, 1997 (copy enclosed); FOH § 30c16.
This is true even if an economic loss suffered by the employer is due to the employee’s
work-related negligence. See
Fact Sheet #16: Deductions from Wages for Uniforms and
Other Facilities. Employers may not avoid FLSA minimum wage and overtime pay
requirements by having the employee reimburse the employer in cash for the cost of such
items because the effect is the same as deducting the cost from the employee’s wages.
See 29 C.F.R. §§ 531.3(d),
531.32(c), 531.35.

An employer’s obligations under the FLSA are not unlimited, however. If an employer
supplies a reasonable and sufficient number of wash and wear uniforms and replaces any
uniforms that are damaged in the course of work-related duties, the employer has

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satisfied its duty to pay expenses that are primarily for the benefit of the employer. The
FLSA does not compel the employer to supply its employees with clothing for personal
use.

A covered, tipped employee may acquire, of his or her own choice, additional uniforms
beyond those routinely provided by the employer. Where, as it appears to be the case
here, an employer supplies free of charge, or reimburses the employees for, a sufficient
number of uniforms required by work conditions to be worn, and all or some employees
elect voluntarily to purchase additional uniforms in excess of the number required, the
employer need not reimburse the employees for costs incurred in purchasing the excess
uniforms. See FOH § 30c12(g). The purchase may be made with cash paid by the
employee or by a voluntary assignment made by the employee to the employer who is
acting as a creditor for this purpose. As stated in
29 C.F.R. § 531.40, this wage
assignment may not result, directly or indirectly, in any profit or benefit to the employer
or a third-party acting on behalf of the employer from the transaction. Accordingly, an
employee may voluntarily reimburse the employer for extra replacement uniforms
without violating the FLSA.

We note that the provisions of 29 C.F.R. § 516.2(a)(10) require an employer to maintain,
for a period of two years, records showing the total additions to or deductions from wages
paid each pay period. Thus, records documenting any deductions from wages of
employees for purchasing employer-required uniforms must be maintained. Similarly,
records documenting any deductions from wages of employees for voluntarily purchasing
additional uniforms in excess of the number provided, as discussed above, must also be
maintained. However, if employees purchase excess uniforms on their own, rather than
through the employer, no record of such private transactions need be kept under the
FLSA.

This opinion is based exclusively on the facts and circumstances described in your
request and is given based on your representation, express or implied, that you have
provided a full and fair description of all the facts and circumstances that would be
pertinent to our consideration of the question presented. Existence of any other factual or
historical background not contained in your letter might require a conclusion different
from the one expressed herein. You have represented that this opinion is not sought by a
party to pending private litigation concerning the issues addressed herein. You have also
represented that this opinion is not sought in connection with an investigation or litigation
between a client or firm and the Wage and Hour Division or the Department of Labor.

We trust that this letter is responsive to your inquiry.

Sincerely,

Alexander J. Passantino
Acting Administrator

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Enclosure: Wage and Hour Opinion Letter Jan. 21, 1997

* Note: The actual name(s) was removed to preserve privacy in accordance with 5
U.S.C. § 552(b)(7).