Wet Seal is a retailer. Here are various dress code policies the Company maintained for store employees:
“The Wet Seal, Inc. store employees represent our Company and are required to dress in accordance with the current Company Dress Code guidelines. All employees are required to dress in a manner that is both respectful of our Customers and consistent with the current fashion attire that is reflected in the stores.
“The current Field Dress Code Guidelines can be found in the Store Operations Policies & Procedures Manual. Inappropriate dress will not be tolerated. Any violations of this policy may result in a disciplinary action up to and including termination. . . .”
“Wet Seal Employees represent Wet Seal to our Customers. Our Employees must exemplify the fashionable image we want to portray to our Customer. The Employee discount is a benefit that is offered to Employees to purchase and wear current store fashion merchandise. Employees are encouraged to wear Wet Seal merchandise at all times. It is essential that the Employees reflect Wet Seal style during working hours.*
“. . .
“*If an Employee does not have Wet Seal merchandise the Employee should wear clothing consistent with Wet Seal’s brand.”
“The Wet Seal and Arden B store Employees represent our Company and are required to dress in accordance with the current Company Dress Code Guidelines. All Employees are required to dress in a manner that is both respectful of our Customers and consistent with the current fashion style that is reflected in the stores. Employees are not required to wear the Company’s clothing.
“Those employees interested in purchasing company merchandise are eligible for an employee discount. . . . Employees are invited to wear Wet Seal or Arden B clothing during work hours, but are not required to do so.”
***“Wet Seal team members represent Wet Seal to ‘OUR GIRL.’ Our team members must exemplify the fashionable image we want to portray to ‘OUR GIRL.’ The employee discount is a benefit offered to employees to encourage them to purchase and wear current store fashion. Team members are required to dress in a manner that is both respectful of ‘OUR GIRL’ and consistent with the current fashion trends that are reflected in our stores.”
“As a Fashionista on the sales floor, you must represent the Arden B brand, current fashion trends and current color stories presented on the sales floor. [¶] Team members are required to dress in a manner that is both respectful to our customer, professional and consistent with the current fashion trends that are reflected in our stores.” ***
The trial court, though, denied class certification, in part because the above policies did not create a blanket requirement to buy the company's product, or a "uniform," i.e., clothes of a distinctive design or color, and did not mandate purchase of the company's product.
The court of appeal agreed:
First, the written policies do not state that employees were “required” to purchase Wet Seal clothing as a condition of employment. Thus, answering the “central” liability question whether Wet Seal employees were required to wear Wet Seal clothing as a condition of employment or otherwise compelled to purchase Wet Seal merchandise would require several individualized inquiries including “(1) what, if anything, the employee was told by his or her store manager regarding purchasing Wet Seal clothing or wearing Wet Seal clothing to work; (2) if such a discussion occurred, when and with whom the employee had that discussion; (3) how the employee interpreted that discussion; (4) whether the employee’s interpretation was reasonable; and (5) whether the employee then purchased Wet Seal clothing to wear to work pursuant to that discussion.”
Second, the written policies do not “explain with any specificity” what employees are required to wear, but instead use broad and vague standards like requiring employees to dress in a manner “ ‘consistent with the current fashion style that is reflected in the stores’ . . . .” Thus, for example, determining whether the attire allegedly required by Wet Seal constitutes a uniform within the meaning of Wage Order 7 would require several individualized inquiries, including “(1) what was the current fashion style reflected in each store at a given period of time; (2) whether that style was of a distinctive color or design; (3) how each store manager interpreted the phrase ‘Wet Seal style’ or ‘consistent with the current fashion style that is reflected in the stores’; (3) whether each manager required the employees to wear clothing of a distinctive design or color; and (4) whether each manager required the employees to wear clothing that is usual or generally usable in the occupation.”
Third, because the written policy does not describe what an employee is supposedly required to wear, the court found that individualized inquiries would be necessary in order to determine whether any given purchase by an employee constituted a “necessary expenditure” within the meaning of section 2802. For example, individualized inquiries would be necessary to address “(1) what, if anything, the manager told the employee regarding the required wardrobe; (2) assuming the employee purchased certain wardrobe items to wear to work, where the employee purchased those items; and (3) the particular wardrobe items actually purchased.”
The trial court also found that the evidence submitted by both sides demonstrates that the plaintiffs’ theory of liability regarding its dress code claim is not “reasonably susceptible to common proof but rather would require individualized inquiries into a myriad of circumstances depending on the particular direction of individual store managers and supervisors at numerous stores in widely varying locations and over the course of many years.” In reaching this conclusion, the court expressly found that the plaintiffs’ evidence, particularly the 55 employee declarations, demonstrate that “the common written dress code policy did not lead to common dress code practices.”
So, two things - a mushy dress code policy that suggests purchasing company clothing, but does not require it, and that does not mandate a particular color or article of clothing, will not support a uniform / mandatory purchase lawsuit on a class wide basis. Second, local managers' local policies can still result in significant liability on an individual employee basis, even if class certification is not approved. So, as always, the devil is in the details.
The case is Morgan v. Wet Seal and the opinion is here.