Apartment Manager Law in California
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
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.
Minimum Wage for Resident
Apartment owners are required by the California Code of Regulations
to have a "resident apartment manager" or some other
responsible person, to reside upon the premises and manage
every apartment house that has over 16 units.
Resident Apartment Managers must be paid in accordance to
minimum wage laws. That is, the Resident Apartment Manager
must be paid at least $6.75 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 excepting a salary, find out how many hours you are
expected to work, then apply that to the formulas provided
in the next section.
Paid on Salary
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
If your hourly salary is below $6.75, you should consult an
track of hours worked
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
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.
Free" Apartment as Compensation
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 $381.20 for
a single manager and $563.90 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 $381.20 for a single manager and $563.90
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.
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 $6.75, if it
is less, use $6.75)
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.
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 a protections in mind.