Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations
EMPLOYMENT STANDARDS ACT - PART 3 - WAGES, SPECIAL CLOTHING & RECORDS
ESA Section 25 – Special Clothing
This section explains that the cost of any special clothing employees are required to wear, including costs for purchase, cleaning, and maintenance of that clothing is a cost that must be paid by the employer.
25. (1) An employer who requires an employee to wear special clothing must, without charge to the employee,
(a) provide the special clothing, and
(b) clean and maintain it in a good state of repair, unless the employee is bound by an agreement made under subsection (2).
(2) If an employer and the majority of the affected employees at a workplace agree that the employees will clean their own special clothing and maintain it in a good state of repair,
(a) the agreement binds all employees at that workplace who are required to wear special clothing,
(b) the employer must reimburse, in accordance with the agreement, each employee bound by the agreement for the cost of cleaning and maintaining the special clothing, and
(c) the employer must retain for two years records of the agreement and the amounts reimbursed.
(3) The following are deemed to be wages owing and this Act applies to their recovery:
(a) money received or deducted by an employer from an employee for providing, cleaning or maintaining special clothing;
(b) money an employer fails to reimburse under subsection (2).
Under s.1 of the Act, “special clothing” is defined as including “a uniform and a specified brand of clothing”. This means all uniforms and clothing an employer requires an employee to wear while at work to create a certain business image. It is clothing that identifies the employee as part of the employer's business and is usually the same for all employees, or for a group of employees. The definition of special clothing is given a broad interpretation and is not viewed as restrictive by the director.
Some examples of special clothing are:
- a shirt with the employer's logo on it, even though the employee can choose from a selection of shirt styles;
- pants of a particular style produced by a specified manufacturer, even though employees are given a choice of colour;
- a specified brand of clothing made by a particular manufacturer or only available through a supplier specified by the employer (i.e., specifiying "Levi’s 501 medium stonewash jeans" as opposed to "blue jeans");
- clothing that employees are required to buy from the employer or from a specific source;
- a tuxedo.
WorkSafe BC requires workers to provide clothing needed for protection against the elements, general purpose work gloves, appropriate footwear including safety footwear and safety headgear. These items are not considered to be special clothing under the Employment Standards Act. An employer is responsible for providing, at no cost to the employee, all other items of personal protective equipment required by the Occupational Health and Safety Regulation under the Workers Compensation Act.
Distinguishing Special Clothing and Dress Code
It is not considered to be special clothing when an employee is required to follow a certain “dress code” typical of a certain sector. Certain sectors have a standard look such as in the restaurant industry.
The basic difference between special clothing and a dress code lies in the employee's freedom to decide how to meet the standard required. As long as an employee's appearance meets the standard of dress required by a dress code, it should be of no concern to the employer how the employee meets that code. The employer is not required to provide and maintain clothing needed to meet a “dress code”.
An employer, especially in the retail clothing industry, can direct employees not to wear garments made by a competitor that are identifiable and create a conflict of interest.
When the employer requires the employee to buy clothing at a specific outlet or designates a specific brand or style that must be worn, the employer goes beyond setting a dress code. This is considered to be requiring the employee to use wages to purchase special clothing for the employer's business.
When hired to be a server in a restaurant, Derek is told that he must wear a white short sleeved shirt, “Ralph Lauren jeans” and black shoes. Derek inquires about where he can find the pants and is informed by his employer “most of the major retailers carry them”. Upon checking, he finds the pants cost $75.00; however, he purchases them, as he understands his job will be dependent on wearing them.
A short sleeved white shirt and black shoes are not considered to be special clothing, but meet a restaurant “dress code”. The pants, however, are special clothing for purposes of the Act, as the employer requires the employee to purchase a specified brand of clothing made by a particular manufacturer. The cost should be borne by the employer and can be collected as “wages” under the Act.
A clothing allowance that does not cover the full cost of special clothing, or a discount, is not a substitute for the requirement that an employer provide special clothing at no charge to employees. Any clothing allowance or discount provided will be taken into consideration, and will offset the full cost of special clothing passed on to the employee.
An employer may not require an employee to make a deposit against the return of a uniform or special clothing.
A restaurant requires that all serving staff wear a white apron that is supplied by the employer with certain conditions. The employees are informed when hired that they must purchase the apron for a cost of $20 that is reimbursable when they leave their employment and return the apron. The employees are provided with a written authorization for their signature, allowing the cost of the apron to be paid for with two $10 payments from their first two paycheques.
The employer is prohibited from charging the employees for the cost of the apron as the apron is considered special apparel. Under Section 25, the cost of supplying the uniform apron is a business cost to the employer even though the amount is repaid to the employee when they leave their employment and return the apron.
Special clothing is the property of the employer and should be returned when requested by the employer.
An employer and the majority of the employees, or where there is only one employee, the affected employee, can make an agreement for the employees to clean and maintain special clothing at an agreed-upon reimbursement. Based on this majority agreement, the agreement then covers all employees at the workplace who are required to wear the special clothing.
The agreed upon costs can be based on cost per hour, or per shift. These cleaning costs do not form part of “regular wage” for purposes of overtime in Part 4 of the Act. If a third party, such as a dry cleaner, is involved, the agreement must be at least equal to the cost charged by the third party. The employer is bound by the agreement and must pay the employee the agreed amount.
The employer must retain the records of the agreement and amounts paid for a period of two years.
Under s.72 of the Act, an employer and any of its employees may join in a written application to the director to vary the provisions of s.25.
Where there is found to be a contravention of s.(1) or (2), the Director can recover all costs as “wages” according to the cleaning agreement and when there is no agreement, the Director may establish the cost of cleaning and maintaining the special clothing and recover that amount as wages from the employer. This may include the cost charged by a third party, such as a dry cleaning or commercial laundry, or, if there was no third party cost, a reasonable amount equivalent to the costs incurred by the employee in cleaning and maintaining the garment.
Any money received by an employer from employees as payment for purchase, deposit, cleaning, or upkeep of special clothing, are wages owing which can be collected under the Act.
Employees covered by a collective agreement
Under the provisions of s.3, if a collective agreement contains any provision respecting s.25 (1) or (2), these sections of the Act do not apply. If a collective agreement does not contain any provisions respecting special clothing, ss. 25(1) and (2) of the Act are deemed to be incorporated in the collective agreement as part of its terms.
Under s.3(7) of the Act, where there is a collective agreement, the enforcement of matters relating to s.25 is through the grievance procedure, not through the enforcement provisions of the Act.
Employment Standards Tribunal Decisions
Y.M. Inc. operating as Stitches and Sirens; BC EST#D373/98
Related sections of the Act or Regulation
- s.1, Definition “special clothing”
- s.3, Scope of the Act
- s.21, Deductions
- s.72, Application for variance