The McMillan Law Firm, A.P.C., is not advising you or giving you specific legal advice with this web site. We only give legal advice to those clients who have retained the firm, so if you need further assistance, please contact our office immediately. Please note that the information contained on this web site is specifically for CALIFORNIA. Again, the following is simply an overview of California laws as applied to Resident Apartment Managers.
Employment at will
Unless the employee is working under a contract guaranteeing employment for a specified amount of time, the employer/employee relationship is considered at-will, and employers can fire the employee for any reason, except the “wrong reason.” The “wrong reason” usually is limited to whistle-blowing (example: reporting illegal activities) or because of their race, sex, national origin or disability. The employer is free to fire the employee for almost all other reasons. You should consult an employment law attorney if you have been terminated and feel it was for the “wrong reason.”
Of course, you can contract around the “at-will” relationship by entering into an employment contract for a specified term (i.e. a contract for one-year of employment). Then, if you are terminated before the term expires, the employer may be in breach of contract. However, many employers are hesitant to enter into such contracts because they are giving up their right to terminate the employment relationship “at will”.
Minimum Wage for Resident Apartment Managers
Apartment owners are required by the California Code of Regulations to have an “onsite caretaker” or some other responsible person, to reside upon the premises and manage every apartment house that has over 16 units.
Some municipal jurisdictions place other requirements on the apartment owners or operators with respect to the payment of wages and conditions of employment for a resident apartment manager.
Resident Apartment Managers must be paid in accordance to minimum wage laws. That is, the Resident Apartment Manager must be paid at least $9.00 for every hour worked. The Industrial Welfare Commission defines “hours worked” as “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work.” (Wage Order No. 5 2(h).)
Furthermore, California case law has held that “suffer or permit” means all work that the employer knew or should have known about; in fact, the Supreme Court even included “work such as unauthorized overtime, which the employer has not requested or required.” (Morillion v. Royal Packing Co.) Be careful, however, the court will not allow a person to “work behind the back” of an apartment owner hoping to cash in later. (Id.)
The employer and employee cannot contract to pay less than minimum wage. (Labor Code 1194(a).) Any such agreement is void, and the employer is in violation of the Labor Code. Before accepting a salary, find out how many hours you are expected to work, then apply that to the formulas provided in the next section.
Being Paid on Salary
California law now forbids contracting for a specified salary as a means to avoid payment of minimum wage. Thus, your employer may not require you to agree to a specified amount in lieu of hourly wage unless it satisfies the salary requirements of at least double minimum wage.
The salary of a non-exempt employee is for 40 hours of work (or less) per week because, and as mandated by Wage Order No. 5 3 (A)(1)(c) , the hourly rate of a non-exempt employee is computed as one-fortieth of the employee’s weekly salary. Therefore, your hourly rate can be computed with the following formulas (note, hours worked cannot exceeded 40, if you work over 40 hours per week, all hours over 40 must be compensated with overtime wages):
If you are paid on a monthly salary: (monthly salary) / [4.3 x (hours worked)] = (hourly salary).
If you are paid on a bi-monthly salary: (bi-monthly salary)/[2.15 x (hours worked)] = (hourly salary).
If you are paid weekly: (weekly salary)/(hours worked) = (hourly salary)
If your hourly salary is below $9.00, you should consult an employment attorney.
Keeping track of hours worked
Some shady apartment operators have their employees sign already completed time cards. If you have such an employer, you should submit a time card that you have corrected. If your employer punishes you for submitting the correct time, you should continue to log your time independently.
Wage and hour regulations contain numerous record-keeping requirements for employers. And, employers, have a statutory duty to comply with the regulations set forth in Labor Code 226, 1174, 1174.5, and Wage Order No. 5 7(a) , all which mandate the employer keep accurate records, including the number of hours worked, rate of pay for each hour, and total wages owed. Failure to record hours alone is a criminal offense. (Labor Code 215.)
For their own protection, all resident apartment managers should keep an accurate record of their hours worked. Because the employer has the affirmative duty to keep track of all hours worked by employees, in the event of a dispute, the employee may reconstruct their hours by means of a “just and reasonable” inference. When the employer’s records are inaccurate or inadequate, an employee will have carried the burden of proof in establishing a violation of state minimum wage and overtime laws if: (1) the employee proves they performed work for which they were improperly compensated and (2) if the employee produces sufficient evidence to show the amount and extent of that work as a matter of “just and reasonable inference.” (Hernandez v. Mendoza) The more evidence you have of hours worked, the more likely it is to recover under minimum wage and overtime laws. Thus, resident apartment managers should keep a daily log of duties performed and the time it took to perform them.
“Rent Free” Apartment as Compensation
Because California apartment operators are required to have an onsite caretaker, and most apartment managers are required to live on premises as a condition of their employment, an apartment operator that charges its caretaker to be at their workplace is committing a violation of the law. (Labor Code 450.)
Most managers’ apartments are considered part of their compensation package. Although this is common practice, it is hardly ever executed legally. There is a strong public policy against taking advantage of an employee in regard to living arrangement. For that reason, the employer must follow the law to the letter.
The employer may deduct up to 2/3 of the market rental value of the manager’s apartment (but not more than $508.38 for a single manager and $752.02 for a couple) against their obligation to pay the manager minimum wage. (Wage Order No. 5 10(c)
Living accommodations can only count towards minimum wage if there is a “voluntary written agreement” that “explicitly references that such credits are being applied toward the minimum wage obligation of the employer.” (Brock v. Carrion) Therefor, the agreement must be (1) in writing, (2) specifically state how much money is to be credited, (3) cannot be more than $508.38 for a single manager and $752.02 for a couple, and (4) must specifically say the credit is “being applied toward minimum wage.” Failure to follow any steps will void the agreement.
Wage Order No. 5 , including the requirement of a “voluntary written agreement,” was clearly intended to “prevent employers from circumventing the state’s minimum wage requirements.” (Id.) Thus, “each provision places strict limits on an employer’s ability to credit lodging against the minimum wage.” (Id.) Therefore, without a valid “voluntary written agreement” the employer “cannot obtain an offset against the plaintiffs potential damages under 10(C) of Wage Order No. 5 .”(Id.) In other words, the apartment is now truly free without any off set against wages.
Some employers of Resident Apartment Managers have the mistaken belief that they can avoid the law by a “check swap” scheme. For reasons that are beyond the scope of this introduction, that scheme is misguided and incorrect.
Resident Apartment Managers and Overtime
“The employment of any employee for longer hours than those fixed by the order or under conditions of labor prohibited by the order is unlawful.” (Labor Code 1198.) The Industrial Welfare Commission mandates a premium for overtime wages at one and one-half time the regular rate of pay for every hour over eight-hours worked in a single day, and all hours over forty worked in a week. (Wage Order No. 5 3.) Also, every hour worked on the seventh-consecutive day shall be paid at the one and one-half pay rate. (Id.)
The overtime rate of a non-exempt employee is computed as one-and a half time the employee’s hourly rate (click here if you are paid per week, bi-monthly, or monthly). Therefore, your overtime rate can be computed with the following formula (Note, your hourly salary must be greater than $9.00, if it is less, use $9.00)
1.5 x (hourly rate) = overtime rate
(overtime rate) x (hours worked over 40) = (overtime owed)
If you work over forty-hours a week, you must be compensated your at your overtime rate. Any agreement to do otherwise is contrary to Labor Code section 1194(a) and is not valid. Furthermore, the Defendants are barred from using an “averaging method” to apply money paid to overtime owed. (Armenta v. Osmose, Inc.) “California’s labor statutes reflect a strong public policy in favor of full payment of wages for all hours worked.” (Id.) Therefore, an employer cannot pay an employer with a salary that compensates more than minimum wage and expect the amount paid over minimum wage to make up for prior or future overtime compensation earned.
Some unscrupulous apartment operators require their manager to live onsite, be in communication with their employer, but fail to provide the employee the means to do so. An employer that requires communication from the employee should pay for the means to do so, i.e., a cell phone and Internet service. Likewise, if the employer does not have a separate office at the facility but requires the employee to use their quarters as an office, the employer should be paying for the utilities.
Some apartment operators require that the resident apartment manager make bank deposits, or travel to the central office for meetings. In those circumstances, the employer is required to reimburse for expenses — i.e., mileage or fare for public transportation. The time spent traveling to the bank on the employer’s business should also be compensated.
If your employer is in violation of any of the previous sections, seek counsel from an employment law attorney. Your boss cannot fire you for doing so. If you are looking for a job as a resident apartment manager, keep these rights and protections in mind.
At our law firm, we understand the vital role that caretakers play in providing compassionate care to individuals who require assistance due to age, illness, or disability. Unfortunately, caretakers are often undervalued and underpaid for the critical work they do.
If you are a caretaker who has been unfairly compensated, we can help you fight for the wages you deserve. We have extensive experience representing caretakers in wage and hour disputes, and we understand the complex legal issues involved in these cases.
Caretakers are entitled to receive minimum wage, overtime pay, and other benefits under state and federal law. Employers who fail to pay their caretakers properly may be in violation of these laws and can be held accountable for their actions.
Our firm can assist you in determining whether you have been underpaid and, if so, the best course of action to take. We can help you negotiate with your employer to rectify the situation or, if necessary, file a lawsuit on your behalf.
If you are a caretaker who has been unfairly compensated, don’t hesitate to contact us for a consultation. We are dedicated to protecting the rights of caretakers and ensuring that they receive the wages they deserve for the important work they do.
Contact The McMillan Law Firm, APC
4670 Nebo Drive
La Mesa, CA 91941-5230
Phone: (619) 464-1500
At The McMillan Law Firm our objective is to prepare our clients to emerge victorious from difficulty or conflict. We do not like to lose, and we take pride in our clients’ successes. We look forward to hearing from you.