Apartment Managers’ Jobs Subject to State Guidelines

Q: I manage a 39-unit apartment complex in Los Angeles. I receive free rent and a small salary.

I have never been given any guidelines as to when I have to be at the complex or which days I can have off.

I have asked for guidance but have been told just to do what is necessary. When I do want to leave for a day or an evening, I am made to feel guilty for not doing my job.

Are there any state employment guidelines as to what apartment managers are paid and the hours and days they are required to work?

--V.C., Los Angeles

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A: Yes. Wage Order No. 5-98 of the California Industrial Welfare Commission governs wages, hours and working conditions in the public housekeeping industry, which includes apartment buildings.

Although that wage order does not establish a maximum number of hours an employee may be required to work, it does require that employees who work more than 40 hours per week be paid overtime at time-and-one-half.

This requirement does not apply to exempt employees, such as those whose duties are “primarily” managerial (which generally means spending more than half of one’s time managing other employees). Also, some flexibility is given to employers and resident apartment managers in determining “hours worked,” to account for work that must be performed outside of a traditional 9-to-5 schedule.

The California Labor Code also provides that employees must be given at least one day off per week, although exceptions exist in emergencies or where the employee’s duties require work on the seventh day, so long as overtime is paid.

Depending upon whether you would be considered exempt from overtime, you may have the right to insist on a more structured work schedule, although such a schedule probably would eliminate whatever flexibility you might have come to enjoy.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Terminated, but as Whistle-Blower?

Q: I was incorrectly classified as an exempt employee from April to December 1997, and I worked unpaid overtime.

I checked with the labor board, and was told that my employment status is nonexempt because my job description involved secretarial work and that I was not supervising others or making management decisions. The company agreed to pay me overtime this year but refused to pay for the overtime in 1997.

I also expressed concern that the office manager was making personnel decisions that were not consistent with the employee manual, such as docking nonexempt employees’ vacation time when they arrived late but not docking others in the same category.

After a cursory investigation, the employer reminded the office manager to follow the employee manual and told me there was no discrimination in the office.

The employer eliminated my position because of budgetary constraints.

I received an excellent performance review, and I can document that I was doing a great job.

I think the timing was not a coincidence and that the employer eliminated my position in response to my request for overtime and my concerns about discrimination. Do I have any legal recourse?

--C.S., Los Angeles

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A: It is illegal for an employer to retaliate against a whistle-blower. It appears that your complaints are based on statutes and are of sufficient importance for you to be protected as a whistle-blower.

On the other hand, employers have a right to eliminate positions to make a profit. If this was really your employer’s intent, you would not have a case.

To determine the true reason for the change and motivation behind it, you need to determine who was assigned your job duties after your employment ended.

Try to determine if the company advertised for your position after you were let go. That would tend to show that the alleged reason for your termination--budgetary constraints--was simply a pretext.

Even if the company had a legitimate reason to eliminate your position, evaluate whether you were the person who should have been let go. If you have seniority and performed better than your peers, you might have a good argument that the company was retaliating in selecting you for termination.

Another important factor is timing. If your termination occurred a long time after your complaints, the link between those events would not be as convincing as a short period of time.

In addition, be sure that you can prove that you complained. Did you put your complaints in writing, for example? Or make them in front of a witness?

--Don D. Sessions

Employee rights attorney

Mission Viejo

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If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873; or, e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.