Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour and Labor Code Class Actions (22nd Edition) 33 unlimited minutes. In either case, the defendant argued that its practice of requiring personal cell-phone use might not have caused an employee to incur any additional expense above what the employee was already paying. Cochran, however, reversed the denial of class certification, disagreeing with the trial court’s interpretation of Section 2802. Cochran held that Section 2802 always requires reimbursement when an employee relieves the employer of a business expense, regardless of whether the employee actually incurred an extra expense in doing so: Otherwise, the employer would receive a windfall because it would be passing its operating expenses onto the employee. Thus, to be in compliance with section 2802, the employer must pay some reasonable percentage of the employee’s cell phone bill.177 Cochran left for another day the enormous practical difficulties involved in calculating individual damages. More recently, the Court of Appeal weighed whether employees can be charged for business losses caused by inadvertent employee errors. In Gallano v. Burlington Coat Factory of California, LLC, the Court held that such losses were operating expenses that the employer was responsible for under Section 2802, and they could not be shifted to employees.178 B. Reimbursement for Uniforms Under the Wage Orders Separate from Section 2802, several Wage Orders state that when uniforms, tools, or equipment are required by the employer, or necessary to perform the job duties, they must be provided by the employer.179 For example, employees may be required to wear a company’s logo shirt while on duty. The Wage Orders define “uniform” to include “apparel or accessories of distinctive design or color.”180 The IWC has explained, however, that the employer’s obligation to pay for uniforms does not require the employer to pay for an employee’s work clothes when the employee has only a broadly-defined dress code, such as a dark suit and a tie for lawyers.181 Due to the ambiguity in the meaning of “uniform,” class actions have been brought alleging that employers must purchase clothing that arguably constitutes de facto “uniforms.” In one case, the DLSE instituted an action (and obtained a sizeable settlement) based on allegations that a dress code consisting of a blue shirt and tan or khaki 177 Id. at 1144. 178 67 Cal. App. 5th 953, 963-64 (2021) 179 See, e.g., Wage Order 7-2001 § 9. 180 See, e.g., Wage Order 7-2001 § 9(A). 181 See IWC Order No. 4-98, Statement as to the Basis (stating that employers may “specify basic wardrobe items which are usual and generally usable in the occupation, such as white shirts, dark pants and black shoes and belts” and may require the employees to bear the expense of such items”); DLSE Enforcement Policies and Interpretations Manual (2002 Update) (“DLSE Manual”) § 45.5.2. (stating same); see also Townley v. B.J.’s Restaurants, Inc., 37 Cal. App. 5th 179, 185 (2019) (employees were not entitled to reimbursement where restaurant required them to wear ”slip resistant, black, close-toed shoes” for safety purposes).
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