Fill and Sign the Form Housing Agreement

Basic form © James R. McDade (ver: 04-19-04) 209-667-2300 Page 1 of 4 HOUSING BENEFIT AGREEMENT Note: Employers who provide housing as part of the employment arrangement use this form. Check with legal counsel if you do not know the wage and hour rules. (Delete this note prior to use.) A. Housing. The parties acknowledge that employee [is] [is not] required to live on the employer's premises as a requirement of employment. At the present time, the employer is offering the employee housing at [address] as a benefit of employment. [Note: If the housing is not located on at the worksite, it may be difficult to argue that living at the employer provided housing is a requirement of the job. (Delete this note prior to use).] B. Value of Housing . The value of the housing benefit shall be $___________ per month. (Note 1: If the employee is required to live on the premises, then the value of the housing cannot exceed the amounts listed under the minimum wage section of the applicable wage order. See Wage Order 14, section 10(E). If the employee is not required to live in the housing then the full fair market value of the housing can be used to calculate wages earned, but taxes will apply. Note 2: The rental value should be the fair market value up to the amount allowed by the wage order. Otherwise, an argument could be made that the housing is substandard and not habitable. Note 3: The pay stub should show the housing benefit on it for workers’ compensation purposes. If only a subtraction is shown for housing, then it looks like the employee is paying rent; and this could give the employee an argument that the relationship is tenant-landlord. A dual entry to both add housing in and then subtract the housing back out needs to (1) show the benefit for workers’ compensation purposes, (2) avoid the appearance that rent is being paid, and (3) avoid the paying of taxes on the housing, assuming the employee is required to live on the premises as discussed above. The pay stub should appear as follows: Base Pay (either salary or hourly wage total) + Employee Housing - Employee Housing--------------------------------= Gross Pay - Taxes------------------------------= Net Pay C. [OPTION>Minimum Wage Credit. It is voluntarily agreed by the employee that the employer may take a credit against minimum wage paid to the employee in the amount allowed under the applicable wage order. As of the date of this Housing Agreement, the credit equals $_____ per month. (Note: See applicable Wage Order for limits on allowable credits. The fair market value of the housing can be more than the minimum wage credit allowed.) D. Utilities. This housing benefit includes [water, sewer, garbage, gas, and electricity] at not additional cost to the employee. The employee must pay for [water, sewer, garbage, gas, and electricity]. (Note: The value of utilities paid by the employer may have to be added to wages for overtime rate calculation purposes.) E.Taxes. The value of the housing benefit shall be added to the employee’s gross wages for tax purposes to the extent required by law. The employee must pay all income taxes, if any, assessed against the employee as a result of this housing benefit. (Note: If the employee is required to live on the premises, then the value of the housing does not need to be Basic form © James R. McDade (ver: 04-19-04) 209-667-2300 Page 2 of 4reported to the IRS. If the employee is either voluntarily or involuntarily living in employer housing, then Workers’ compensation insurance may require that the employer report a value of the housing to workers’ compensation for premium calculation purposes. Check with your accountant for any other payroll tax issues.) F. Right to Change Benefit. The employer reserves the right to add, change, or eliminate any housing benefit or any eligibility requirement for housing benefits at any time at the sole discretion of the employer. G. Deposit. The employee agrees to have $____ deducted from the employee’s wages for purposes of a refundable cleaning deposit. If the employee returns the housing in good order, then the deposit will be returned. (Note: Asking for a deposit will tend to show a landlord-tenant relationship. Special rules apply to handing and returning deposits under Civil Code §1950.5.) H. No Lease Intended. The housing offered to the employee is not a lease or a rental. The employer may revoke this housing benefit at any time, for any reason, without or without prior notice. No relationship of landlord and tenant is intended or created. The employee shall be eligible for the housing benefit only so long as employee is employed by and actively working for the employer. If employee’s employment with the employer ceases for any reason, then the employee’s housing benefits will cease immediately. If the employee is on a leave of absence, then this housing benefit will cease [60] days after the employee first begins the leave of absence. In all cases after this housing benefit ceases, the employee will be responsible for all rent, utilities, and damages between the time this housing benefit ceases and the time that the employee and those living with employee vacate the house. I. Surrender of Housing . The employee must vacate the house and remove all the employee’s property within [fifteen (15)] days from the date that the employee is given notice to do so. If the employee remains in possession of the house after the time for vacating the house expires, the employer shall have the right, in addition to any other remedy provided by law, to bring an action to evict the employee without any further notice pursuant to Code of Civil Procedure §1161(1), [Option>and the employee shall be responsible to the employer for all rent, utilities, and damages for unlawful detention until the employee and those living with employee vacate the house. (Note: The option to pay rent and damages may cause the relationship to become a month-to-month tenancy; for which advance notice may need to be given for an eviction. See, Karz v Mecham (1981) 120 Cal.App.3d Supp. 1) The employee will be charged for the cost of cleaning the house and surrounding premises if the employee leaves it dirty and damaged, except normal wear and tear. The employee will also be charged for removal and storage of personal property if the employee does not remove all of the employee’s belongings. By signing this Housing Agreement, the employee hereby waives any claim against the employer for disposing of the employee’s personal property after reasonable attempts by the employer to return the property to the employee. (Note: Pursuant to Code of Civil Procedure §1161(1), no prior notice need be given before starting an eviction of the employee if the employment relationship ends and the employee won’t voluntarily vacate. However, it is a good idea to be reasonable in providing time for the employee to vacate.) (Note: If the employee is not working due to a workers’ compensation injury, and the employer wants the employee out of the housing, then in order to win a Labor Code §132a claim, the employer needs to show that because of business necessity, the employer cannot afford to allow the employee to remain in the house and/or that a replacement employee cannot be found unless housing is offered. See, Dominguez (1998) 63 CC 1277; Mannetter (1976) 41 CCC 1060; Silberman, Labor Code §132a. If the employee refuses to leave the premises, the law is unclear as to whether notice of eviction must be given prior to filing an unlawful detainer action Basic form © James R. McDade (ver: 04-19-04) 209-667-2300 Page 3 of 4to force the employee out. Because the employee is still employed, Code of Civil Procedure §1161(1) does not apply; so the safest thing to do is to provide 30 days notice (if the employee has been in the house less than a year) or 60 days notice (if the employee has been in the house more than a year) pursuant to Civil Code §1946.1 prior to starting an eviction action. See an attorney prior to evicting or terminating an employee who is on a workers’ compensation leave of absence.) J. Care of the Housing. While the employee lives in the housing, the employee must maintain the housing in proper repair and protect the housing from damage. The employee shall be responsible for all damage to the housing and surrounding grounds caused by the employee or the employee’s family, except normal wear and tear. The employee must maintain the yard in good condition--watering and cutting the grass when needed. The employee must not allow garbage and debris, including non-operating vehicles, to accumulate in the yard, street, or surrounding areas. The employee shall park or locate operating vehicles only in designated areas. The employee is to keep his or her children and guests under control. No parties are allowed in the housing or yard if the employee is not present or if it bothers the neighbors. For safety reasons, no children or guests are allowed to either play or loiter on the operations portion of the farm nor operate farm equipment. The employee must respect the privacy and comfort of the neighbors. K.Guests. The employee may only have the employee’s spouse and dependent children live with employee in the housing, unless otherwise agreed to in advance by the employer. The employee shall not have non-dependent guests and relatives stay in the house overnight for more than fourteen (14) days annually. L. Pets and Animals. The employee shall also not allow any pets or animals to remain on the premises without the express written consent of the employer. M. Right to Inspect. The employer shall have the right to enter the premises, including the interior of the house, at any reasonable time to inspect or repair the premises by giving twenty-four (24) hours advance notice to the employee, unless an emergency situation, as determined at the sole discretion of the employer, mandates a shorter notice period. N. Failure to Obey Rules. If the employee fails to comply with any of the rules in this Housing Agreement, the employee may lose his or her housing benefit and possibly his or her job with the employer. In addition, if the employee or the employer brings any lawsuit to enforce or interpret this Housing Agreement, including any court action to remove the employee from the housing, the prevailing party shall be entitled to reasonable attorneys' fees and costs of suit. O. At-Will Employment Unaffected. This Housing Agreement does not change the at-will relationship of the parties. Employment is not for a specified period and can be terminated either by party at any time, with or without cause or notice. P . No Right to Assign or Sublet. The employee may not assign his or her interest under this Housing Agreement, and shall have no right to sublet any portion of the premises. Q. No W aiv e r. T he w aiv e r b y t h e e m plo ye r o ne o r m ore t im es o f a b re ach o f a ny t e rm o f th is A gre em ent is n ot a w aiv e r o f t h e b re ach o f a ny o th e r t e rm o f t h is A gre em ent n or o f a subse qu ent b re ach o f t h e o ne w aiv e d. R. Integration and Modification . This instrument constitutes the entire and complete agreement of the parties relating to the subject matter contained herein. This instrument supersedes in its entirety any and all prior oral and/or written agreements or memorandums of understanding between the parties. No modification of this Agreement shall be made or entered into except by means of a writing signed by the party to be charged. Basic form © James R. McDade (ver: 04-19-04) 209-667-2300 Page 4 of 4Dated: __________________________________________________________ _________________________________Employee’s Signature Employer's SignatureThis agreement was verbally translated to the employee in Spanish by the undersigned:______________________________ Date: _________________________Translator