Property owners, property managers and real estate agents face a lot of hidden dangers from a risk management perspective in remodeling and repairing structures and maintaining and improving the property’s grounds.
People that can assist the property owner, property manager or real estate agent are either employees or independent contractors such as a pest inspector, licensed contractor, gardener, handy person and the like.
It is very important to know the difference between an employee and an independent contractor in California.
For example, an employee is on a real estate brokerage’s payroll and receives wages and benefits in exchange for following the organization’s protocol and doing good work. The employer controls the coming and going of an employee and a W-2 is issued at the end of a calendar year.
An independent contractor, such as an affiliated real estate agent, is an independent worker who has autonomy and flexibility as to when he or she starts and completes a task and does not receive benefits such as health insurance, dental insurance and paid time off. The business owner does not control the comings and goings of an independent contractor and a 1099 is issued at the end of a calendar year.
Verify Work Status for Employees
For employees, property owners, property managers and real estate agents should have a written protocol and form to document that work status has been verified by way of a photocopied birth certificate, social security card, birth certificate or other acceptable documentation approved by the United States Department of Homeland Security that the employee is a United States citizen, United States national, or authorized alien to be in the United States or any of its territories.
Copies of such documentation should be kept by the employer for at least three (3) years in a safe area such as an electronic file and on hard copy from the date the employee was hired and for at least two (2) years that the employee ceases to be employed.
An undocumented immigrant is entitled to work in California. Unfortunately, a person who retains an undocumented immigrant to work for himself or herself is subject to monetary penalties for failing to verify the employee’s legal status in California as discussed above and documented by way of a photocopied birth certificate, social security card, birth certificate or other acceptable documentation approved by the United States Department of Homeland Security.
Undocumented immigrants who possess a U Visa are allowed to live and work in the United States and its territories for a period of four (4) years or less. After a period of three (3) years, such U Visa undocumented immigrants are eligible to apply for permanent residency status in the United States.
Undocumented immigrants must receive the same minimum wage as documented workers in California which is currently $15.00 per hour for an employer with 25 employees or less and $15.50 for more than 26 workers.
Note, certain California counties have ordinances mandating a higher hourly wage than the $15.00 and $15.50 per hour minimum. It is important to verify the minimum wage in your area.
Overtime wages apply to undocumented workers in California.
Be sure your real estate brokerage is protected by California real estate errors and omissions insurance.
By: Edward McCutchan
Sunderland | McCutchan, LLP
1083 Vine Street Ste. 907
Healdsburg, CA 95448
(707) 433-0377
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