NEW YORK — The retail “what to wear to work” lawsuits are heating up in California.

This story first appeared in the February 18, 2003 issue of WWD. Subscribe Today.

Two separate class-action suits have been filed this month in California, accusing Gap and Abercrombie & Fitch of violating California labor laws by “requiring” their store employees to purchase and wear their brands while on the floor.

The lawsuits, both filed in San Francisco Superior Court, accuse the San Francisco-based Gap and Columbus, Ohio-based A&F of forcing workers earning just over minimum wage to pay out-of-pocket for clothes that reflect the current season’s styles. The policies are enforced by store managers.

Gap has annual volume of $13.8 billion and 300 stores in the state, while A&F is a $1.36 billion company with 50 stores in California.

According to the suit against Gap: “If employees do not wear Gap apparel, they are belittled, criticized, harassed and/or sent home without pay. They are instructed to buy additional items of Gap apparel and accessories, or they will be fired.”

The attorneys in the Gap lawsuit, Patrick Kitchin and Daniel Feder, also in San Francisco, are also representing plaintiffs in a pending federal lawsuit filed in September against Polo Ralph Lauren Corp. in a similar case.

California state labor law says companies must provide required uniforms for free. The term “uniform” includes apparel and accessories of distinctive design or color.

Based on information from the California Labor Commission, Kitchin said more lawsuits could be down the pike because the same labor practice occurs at other retailers in the state.

A Gap spokeswoman would not comment on the pending case, but said Gap stores do not require either part- or full-time employees to purchase any Gap clothing and can wear brand or brand-like merchandise as long as the other brand’s logo is invisible. Gap offers its employees a merchandise discount, although she declined to say how much.

“Our policy is sales associates represent the brand to customers, so it is important to reflect the brand style, which is easy to do with a brand purchase at the store or classic casual clothing consistent with our image,” the spokeswoman said.

Kitchin, who said he has not heard of any dismissals, said with new product flowing into the stores so quickly, Gap employees spend on average of $100 a month on clothing.

Brian Evans and David Chapman, who represent A&F’s employees, said in a filing: “As a business practice, A&F requires, coerces and forces its employees to purchase and then wear and model A&F and A&F-style apparel, accessories and footwear whole on the job…often working for little more than minimum wage.”

When asked further about the policy, Evans said A&F does allow employees to wear clothing of similar style.

Calling employees “human mannequins,” Evans said there are more retail stores that “seem to be following this type of sales marketing scheme and I think that the employers have to recognize under California law, you can not have the cost of that marketing on the backs of their employees.”

He said A&F gives part-time employees 30 percent off purchases, full-time employees get 40 percent off and occasionally even a 50 percent discount on particular seasonal items selected by management of A&F. New employees also receive 50 percent discounts for their first day of work. He also said employees usually spend $100 to $150 for each of the four main selling seasons.

Officials from A&F could not be reached for comment.

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