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over the wages, hours, or working conditions of an employee ... even if it did not directly hire, fire or supervise the employees.” Translation – if a property owner hires a management company, but then determines how much the on-site manager works and gets paid or retains control over who the management company hires and terminates, then the owner, by virtue of the amount of control he exercises, may be deemed an “employer” – the very result he presumably is trying to avoid by hiring a management company. In the Garcia case, the jury found Owner to be an “employer” that had both employed and terminated Husband.
Conversely, if you are a property management company, you cannot escape liability merely by making the property owner the resident manager’s nominal employer. Unless you truly avoid all dealings with the resident manager – an unlikely scenario – that person will be your employee.
Takeaway No. 3 – if you are dissatisfied with your resident manager (or any other employee), do not wait to act. Document the dissatisfaction and, if warranted, terminate the relationship. The longer you wait, the more you put yourself at the mercy of intervening factors that may make parting ways more subject to legal challenge – such as the employee’s illness or injury, or a complaint by the employee. Although it may on some level be counter-intuitive, these intervening factors offer the employee a level of legal protection and make your later dismissal seem opportunistic, pretextual and, sometimes, downright mean – which is how you can get a jury awarding $4,500,000 in punitive damages.
Indeed, I repeatedly see situations in which the very concern that may have justified firing an employee appears -- after the employee has become injured or complained about her working conditions -- to be a mere pretext for firing her. Timing provides context. That is especially true if the employer did
not properly document the problem when it occurred. In the Garcia case, the jury found that Husband and Wife were not terminated for poor job performance (but rather, presumably, that claims of poor job performance were merely a pretext).
Takeaway No. 4 – When an Owner comes to me for advice about how to handle a particular resident manager – especially one that has worked and lived for the owner a long time – I try to get the owner to view the issue from the resident manager’s perspective. I do this for several reasons. One, because being able to empathize with another person is a valuable life skill. More importantly (at least in terms of performing my legal duties), I do this because the owner needs to understand and appreciate that he is threatening, in one fell stroke, to take away both the manager’s job and long-time residence – a double whammy. When threatened in this manner, people tend to push back in any way they can. Wouldn’t you?
In addition, it is important the owner recognize how his actions may be perceived by a third party, i.e., a juror, who may not share the owner’s sometimes self- righteous views. Again, see the $4,500,000 punitive damages award above.
Takeaway No. 5 – This follows from the previous takeaway. As an employer (and property owner), you and the employee are not on a level playing field. Juries will naturally sympathize more with an employee losing her job and being kicked out of her home than they will with you, the taker-away of that job and home. Fair or not, it’s a fact.
When we read about verdicts like this, we tend to chuckle and curse the vagaries of the system. That reaction may be justified, but if you don’t also consider the lessons such a verdict may offer, then you are missing an opportunity to better protect yourself from such vagaries.
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APARTMENT MANAGEMENT MAGAZINE
74 DECEMBER 2021 - APARTMENT MANAGEMENT MAGAZINE AMM1/6