A “uniform” is defined as wearing apparel and accessories of distinctive design or color. The Division of Labor Standards Enforcement (DLSE) has long maintained that clothing that is standard in the industry and can be worn from one job to the next is not considered a uniform and doesn’t need to be provided to employees. For example, you need not supply white nurses uniforms and black-and-white uniforms for food servers because these clothes are standard in their industries and can be used from one job to the next.1

You must pay for and maintain a uniform if it is not standard in the industry, even if it could be worn off the job as street apparel. For example, a restaurant with a tropical theme might ask servers to wear khaki shorts and any Hawaiian shirt. Although this might be appropriate street apparel, because it is not standard apparel for servers throughout the restaurant industry it would be considered a uniform.

The Third District Court of Appeal addressed whether employers must reimburse restaurant staff for slip-resistant shoes under Labor Code section 2802(a), which requires employers to reimburse employees “for all necessary expenditures or losses incurred by the employee[s] in direct consequence of the discharge of [their] duties.” The court reaffirmed the DLSE policy, noting that slip resistant shoes were standard in the restaurant industry and were not part of a “uniform” under the IWC Wage Orders. Thus, the shoes were not a “necessary expenditure” requiring reimbursement under section 2802.2

To read more about expense reimbursements under Labor Code 2802, see Expense Reimbursement.

When tools or equipment are necessary to perform the job, you must provide and maintain them. However, employees whose wages are at least two times the minimum wage can be required to provide and maintain hand tools and equipment customarily required by the trade or craft in which they work.3

Under California Division of Occupational Safety and Health regulations, you must provide all necessary safety equipment for employees, such as gloves and safety shoes.4 Specific regulations require some employers to provide eye and face protection.5

• Property Return Agreement

Work Facilities

If the job requires changing clothing, you must provide employees with all of the following:

• Rooms to permit clothing changes in reasonable privacy.
• Lockers, closets or equivalent space for safekeeping of employees’ clothing.
• Change areas and lockers separated from toilet rooms.6

For more information, see Preparation Time.

Remember that you must also provide equal access to comparable, safe and adequate facilities without regard to the sex of the employee and that employees have the right to use the facility that corresponds to the employee’s gender identity.7 For more information, see Restroom and Facility Issues.

You must maintain temperature levels consistent with industry standards for process and work. If the process involves high heat or humidity, take all reasonable steps to reduce this hazard. For more information, see Implementing High-Heat Procedures. If the process produces extreme cold — prevailing temperatures less than 60 degrees — you must furnish a room heated to at least 68 degrees to which employees can retire for warmth. Federal and state energy guidelines take precedence over temperature requirements.8

Suitable Seating

The majority of California’s Wage Orders contain two seating requirements:

• You must provide “suitable seats when the nature of the work reasonably permits the use of seats.” This is a requirement under section 14 (A) of most Wage Orders.9
• For employees whose jobs require standing, you must provide seats close to the work area and permit employees to use them when they aren’t engaged in active duties. This is a requirement under section 14 (B) of most Wage Orders.

• If an employer fails to provide suitable seating, employees can sue under the Private Attorneys General Act (“PAGA”).10 See “Private Attorneys General Act (PAGA) Claims” in Wage Order Enforcement and Penalties.

The California Supreme Court issued a decision discussing when an employer is required by law to provide “suitable seats” to an employee.11

This decision requires that employers in many industries do a case-by-case analysis of tasks performed at various locations, such as check-out aisles, to determine if a seat is required at a particular location. Employers must look at the tasks at a particular work station, as opposed to all the tasks an employee performs during the day. For instance, an employee who stocks shelves but also cashiers may need a seat at the cashiering work station.

There is no bright line — “Yes, seats are required” or “No, seats aren’t required.” Instead, employers must be ready to defend their decisions using the guidelines discussed by the court.

If an employer argues no suitable seat is available, the burden is on the employer to prove unavailability. In other words, employers who want to be excused from the requirement of providing a seat must show that compliance is not feasible because no suitable seating exists.

• Employers with any questions about their obligations to provide suitable seating in their workplace should seek advice of legal counsel.

The questions before the California Supreme Court arose out of two class-action lawsuits filed in the Ninth Circuit. One of the cases involved cashiers who spent almost all of their time ringing up sales at the cash register, and the other case involved bank tellers. Both positions involved standing for long periods of time.

The Ninth Circuit asked the California Supreme Court to decide how it interprets California’s suitable seating requirement.

Nature of the Work

A suitable seat is required when the "nature of the work" reasonably permits it. The California Supreme Court ruled that the "nature of the work" refers to an employee's tasks performed at a given location for which a right to a suitable seat is claimed. The court held that if the tasks performed at a given location reasonably permit sitting and providing a seat would not interfere with the performance of any other tasks that may require standing, a seat is called for.

To determine whether a seat is required, you need to look at the subsets of tasks or duties that are actually performed by location, such as those performed at a cash register or a teller window, and then consider if it’s “feasible” for an employee to perform each set of location-specific tasks while sitting. You don’t look at all of the employee’s job duties anywhere on the job site; just the tasks at the single location. In addition, you look at the actual tasks performed, not simply job titles or descriptions that might not accurately reflect actual job duties.

In addition, you look at the actual tasks performed, not simply job titles or descriptions that might not accurately reflect actual job duties.

Reasonably Permits

The court applied a “reasonableness” analysis; whether the nature of the work “reasonably permits” use of a seat must be determined objectively based on the “totality of the circumstances.” Whether relevant tasks at a specific location can be performed while seated or standing is balanced against an assessment of feasibility.

The court imposed an important limitation on the analysis: An employer can consider whether providing a seat would interfere with performance of other tasks that require standing.

Feasibility includes such factors as:

• The relationship between standing and sitting tasks;
• The frequency and duration of those tasks with respect to each other;
• Whether providing a seat would unduly interfere with other standing tasks;
• Whether the frequency of transition from sitting to standing may interfere with the work; or
• Whether seated work would impact the quality and effectiveness of overall job performance.

The Court also considered the impact of business judgment, physical layout of the space and physical differences among employees.

An employer’s business judgment is one factor to be considered, but it doesn’t include a company’s “ mere preference ” that tasks be performed while standing. Business judgment is an objective standard that can account for the employer's reasonable expectations regarding customer service and particular job duties. The objective standard doesn't allow the employer to arbitrarily define certain jobs as standing jobs.

Business judgment is an objective standard that can account for the employer’s reasonable expectations regarding customer service and particular job duties. The objective standard doesn’t allow the employer to arbitrarily define certain jobs as standing jobs.

The physical layout of the workspace may also be relevant to the totality of the circumstances inquiry, but an employer may not unreasonably design a workspace to further a preference for standing or to deny a seat.

As for physical differences among employees, the court found that these were irrelevant. The Wage Orders require a seat when the nature of the work reasonably permits it, not the nature of the worker.

• The court did not address any separate reasonable accommodation obligations an employer may have for an employee with a disability under federal or state disability protection laws. For more information, see Disabilities and Accessibility.

Another court decision articulates two additional steps employers should take to avoid liability for failure to provide adequate seating. First, employers should adopt employee-facing seating policies that explicitly inform employees of their right to use seats if the nature of their work permits them to do so. Second, employers should actually provide seats at employee workstations where work that can be done while seated is typically performed.12

Seats for Standing Jobs When Not Actively Working

If an employee’s tasks at a particular location make seated work feasible, then a seat must be permitted under section 14 (A) of most Wage Orders. However, when other job duties take the employee to a different location where standing is required for the tasks, the employee must still be provided a suitable seat for use while “not actively engaged” in work tasks — meaning during “lulls in operation” under section 14(B) of most Wage Orders.

These are two separate requirements. However, the court noted that the seat provided to the employee for use while performing work under section 14(A) (seated work feasible) may also be used during lulls in operation to satisfy section 14(B) if the seat is within reasonable proximity to the work area and is available when work is not required to be performed.

Example: If you gave Sue a chair while she was cashiering and then she switched to stocking the shelves, Sue conceivably could use the chair in the cashier area during lulls in performing her stocking duties if the chair is in reasonable proximity to the stocking duties. But if this chair is going to be occupied by a different cashier while Sue is stocking shelves, another chair may be required.

1. IWC Wage Orders sec. 9; DLSE Enforcement Policies and Interpretations Manual secs. 45.5.1-45.5.6