Wage Law

Resident property managers are not entitled to be paid for time spent on personal activities, even if they are "on-call" around the clock, according to a recent Second District Court of Appeal case entitled Isner v. Falkerberg/Gilliam & Assoc., Inc. (2008) __ Cal.App.4th __. Isner involved a married couple who worked as resident managers for various group facilities, and were on-call on designated evenings from 5:00 p.m. until 8:00 a.m. and on designated weekends from 5:00 p.m. Friday evening until 8:00 a.m. Monday. The policy required them to remain on the facility premises, within hearing distance of an emergency alarm system and telephone. Personal time away from the facility had to be during periods when another resident manager was on-call. All time spent in responding to emergencies counted as hours worked, but no other on-call hours were counted as hours worked, with one exception that credited an employee with eight hours of time worked if he or she was unable to have five hours of uninterrupted sleep due to an emergency.

The resident managers brought an action for unpaid wages based upon the time they were on-call, and restricted to the premises, but not responding to emergencies. The trial court granted summary judgment in favor of the employer. The Court of Appeal affirmed, adopting the reasoning behind section 47.3.2.1 of the DLSE manual and Brewer v. Patel (1993) 20 Cal.App.4th 1017 (only "time spent carrying out assigned duties shall be counted as hours worked" for motel clerk). The court rejected the managers' arguments that distinguished their circumstances from the circumstances of the motel clerk in Brewer and found a December 28, 1998 DLSE opinion letter regarding "Compensability of Resident Apartment Managers' 'On-Call Time' " unpersuasive with respect to distinguishing between apartment managers who are required by the employer to reside on the premises and those who choose to live on the premises but are not required to do so.

You can download the full text of the opinion in Isner here in pdf or word format.