We regularly see apartment owners who convince their resident managers that the manager is not an employee but rather an independent contractor, so the wage laws do not apply.  That is simply wrong.  On April 30, 2018 the California Supreme Court addressed the question of just when the relationship can be considered one involving an independent contractor and the simple answer is, “Almost never!”

In Dynamex Operations West, Inc. v. Superior Court (4 Cal 5^th 903, for those who want to read the actual opinion) (“Dynamex”) the Supreme Court first held that in what looks like an employment relationship, there is a presumption that the relationship is employer/employee.  It is then up to the employer to prove all three parts of what is known as the ABC test.  If the employer fails to prove any one of them, taken in any order, the discussion is over and the relationship is held to be employer/employee, and not independent contractor.   The three tests boil down to, A.) Is the worker free from the control and direction of the hiring entity in the performance of the work, both under the contract for the performance of the work and in fact? B.)  Does the worker perform work that is outside the usual course of the hiring entity’s business? And, C.)  Is the worker customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity? The Legislature so agreed with that logic that it made it part of the Labor Code beginning at Section 2725! And if the relationship seems to be one of employment, it is up to the supposed employer to overcome a presumption that it is in fact an employer-employee relationship!

So, if the owner or management company instructs you on what your responsibilities are, you are an employee.  If the job you do is within the usual course of the owner’s business (since the business is owning, maintaining and managing apartments, being the manager seems to fit), you are an employee.  And, finally, unless you are a licensed realtor with a property management business, you are not “…customarily engaged in an independently established trade, occupation, or business…” so, again you are an employee.  Resident managers are almost always employees.  We have yet to see one who is not.  The wage laws do indeed apply to you if you are a resident manager!