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California Employers Can Be Sued for Sick Pay Violations

May 22, 2023 By Israel Samuels LLP Leave a Comment

In the recent case of Wood v. Kaiser Foundation Hospitals, the Supreme Court ruled that employers may be sued to enforce California’s sick pay statute under the Healthy Workplaces Families Act of 2014 through the Private Attorneys General Act of 2004 (“PAGA”).

Before this decision, employees could not bring sick pay claims as a private right of action Now, employers can expect to start receiving many such claims.

Employers need to scrupulously comply with the applicable law.

All California employers, regardless of their size, must provide Paid Sick Leave:

Option 1: The Accrual Method – At the rate of one hour for every 30 hours worked; or
Option 2: The Frontload Method – Provide your eligible employees with 24 hours or three days of paid sick leave at the beginning of each fiscal year.

Paid Sick Leave must be paid at the “regular rate of pay” (which is different that the employee’s hourly rate). Attorneys already believe this will be a heavily litigated issue for anyone paying nondiscretionary bonuses, commissions, shift premium, etc.

This requirement applies to all employees working in California — whether part-time or full-time, temporary or permanent, exempt or non-exempt — with limited exceptions.

Paid Sick Leave can be used for the employee’s medical needs, the medical needs of specified family members, or to obtain legal relief, medical attention or other services if the employee is a victim of domestic violence, sexual assault or stalking.

Employers may cap the amount of Paid Sick Leave hours an employee can accrue to 48 hours or 6 days per year and can limit the amount of Paid Sick Leave that can be used to 24 hours or 3 days per year.

Please note, however, many localities have their own Paid Sick Leave with which employers must also comply.

Ensure your company’s payroll is set up to pay sick hours at the regular rate of pay and consult with your employment attorney to figure out what that actually is!

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.

Employers Require Written Monitoring Policy to Monitor Employee Email

May 15, 2023 By Israel Samuels LLP Leave a Comment

The California Second District Court of Appeal issued its opinion in Militello v. Farm 1509 in March. The case arose between former business partners over a dispute centering on their vertically integrated cannabis business.

To support her claims, the plaintiff, Militello, retrieved prior email communications between the defendant and her husband covered by the spousal privilege from the company’s communication platform. Defendant argued these were private and privileged emails. Militello contended that the defendant did not hold a reasonable expectation of privacy in the emails because the company platform that stored the emails was not confidential and was subject to review by an administrator.

The Court of Appeal found Mitello’s position unpersuasive, significantly because there was no evidence of the company’s workplace policies showing that the defendant was aware of or even agreed to any email monitoring practice. The Court held that in the absence of such evidence, the emails remained confidential and privileged.

Many California employers provide employees with work email accounts. Although many employers monitor employee email accounts, some do so without having a policy in place explicitly informing employees of this practice.

Based on the holding in Militello, and other practical considerations, California employers that monitor, or intend to monitor emails at any time in the future, should incorporate a written email policy that explicitly informs employees that the company will actively monitor their company email accounts. Lack of such a policy and practice could result in a finding that the employee has a reasonable expectation of privacy in their work email accounts, consistent with the Constitutional right of privacy set forth in Article I of the California Constitution.

Although the Court provided no guidance on the contents of a compliant policy, the written policy should state, at a minimum, that the employer has access to and regularly monitors the employee’s work email account and that the work email account is not for personal use (or, that employees who use the company’s electronic communication systems for personal purposes do so at their own risk and expressly consent to the company monitoring those communications).

The policy needs to be uniformly enforced. Best practices dictate receipt of signed Employee acknowledgments of receipt and understanding of these policies.

Before you commence monitoring employee emails, contact your business attorney to ensure the proper written policies are in place to allow you to do so with violating your employees’ rights to privacy.

California Employment Law and Caregivers

May 8, 2023 By Israel Samuels LLP Leave a Comment

Whether a caregiver tends to babies, kids, elderly parents, or as sober companions or drivers, disputes frequently occur when the caregiver relationship is terminated. In many cases caregivers have been paid off the books, sometimes in cash, without
deductions for payroll taxes, and almost always without time records, paystubs and pay that complies with California law.

Especially when the separation is not cordial, the terminated caregiver may realize they were not paid consistent with California law, and then the family feels “extorted” when they ask for back pay to cover overtime, meal premiums, unpaid sick time, etc.

Some households attempt to mitigate Labor Code violation risks by hiring caregivers through a third party such as an agency that is the formal employer. Unless the agency indemnifies the household, the household most likely is liable as a joint employer, can be sued for any underpayments by the agency. Even with indemnity from the agency, if the agency is not sufficiently funded, it is unlikely to play or be able to play a major role in resolving Labor Code disputes.

We, therefore, recommend that households hiring caregivers:

Seek assistance from employment counsel or a qualified CPA, and pay as an employer, with a W2, and with deductions for taxes (and accompanying payroll taxes).
Keep time and pay records. Provide meals and rest breaks. Get attestations of hours worked and breaks taken.
Consider implementing an arbitration agreement and confidentiality agreement (especially if the household involves celebrities or other high-profile individuals).

If you receive a demand from a terminated caregiver for wage and hour violations, do not ignore it. Immediately seek qualified employment counsel and consider settlement, especially if the household has not placed these recommendations in place. In the long run it will save the household money.

Franchisor Choice of Law Provisions Invalid in California

May 1, 2023 By Israel Samuels LLP Leave a Comment

In March 2023 in the case of Singh v. Wireless Vision, LLC, the federal court for the Eastern District of California denied a subfranchisor’s motion to change venue to the Eastern District of New York. It concluded that its Operator Agreement was a franchise agreement under California law. Therefore, the forum-selection clause was invalid under the California Franchise Relations Act (CFRA). In the case, Singh and Ameritel had entered into an Operator Agreement giving Singh the right to sell exclusively T-Mobile services and products. At the time of the agreement, Singh paid Ameritel a $10,000 good faith deposit.

Thereafter, Singh spent at least $160,000 purchasing equipment and building a store. The Operator Agreement was later assigned to Wireless Vision and then terminated by Wireless Vision.

Singh sued Wireless Vision for breach of contract, violation of the CFRA, violations of the California Labor Code, and unfair business practices. Wireless Vision filed a motion to change venue pursuant to the Operator Agreement’s forum selection clause. Singh opposed the motion. He argued that the forum-selection clause was void under the CFRA.

The court denied Wireless Vision’s motion to change venue. It found the forum-selection clause in the Operator Agreement was unenforceable because the CFRA voids any provision in a franchise agreement restricting venue to a forum outside California.

The court further held that the Operator Agreement satisfied the definition of a franchise under California law since Singh (1) was granted the right to engage in the business of selling goods at a price determined by T-Mobile or Ameritel Management in accordance with T-Mobile standard procedures and was not allowed to engage in the sale of other cellular services; (2) was told he would have a branded T-Mobile store containing signs and displays listing the T-Mobile brand and trademarks; and (3) satisfied the franchise fee requirement by making a $10,000 deposit. The court determined, while Singh’s payments may have gone to third parties, Wireless Vision benefited from the payments because they were used to improve the premises which remained in their possession after the Operator Agreement was terminated.

If you own a franchise in California and have a dispute with your franchisor, consult your business attorney. You likely can stay home to litigate the matter.

Employer Not Liable for Sexual Harassment of Employee by a Supervisor

April 24, 2023 By Israel Samuels LLP Leave a Comment

California’s Fair Employment and Housing Act (“FEHA”), generally makes employers strictly liable for a supervisor’s harassment, even where the employer is unaware of the supervisor’s alleged bad actions. However, in the recent decision in Atalla v. Rite Aid Corp. the California Court of Appeal established limits on the extent to which employers can be held responsible for conduct stemming from employees’ personal relationships and after-hours conduct.

In the Atalla case, Hanin Atalla (“Atalla”), a pharmacist, sued Rite Aid alleging that Erik Lund (“Lund”), a Rite Aid district manager, had sexually harassed her, among other claims. Atalla’s harassment claim stemmed from a series of late-night text messages containing a video of Lund engaging in a sexual act and a photo of his genitals.

Rite Aid did not dispute that Lund had sent the sexually explicit communications but maintained that it was not liable for harassment based on Lund’s conduct because he was not acting in his capacity as a supervisor at the time. The trial court granted summary judgment to Rite Aid on Atalla’s sexual harassment claim, among others, and Atalla appealed.

The Court of Appeal affirmed summary judgment for Rite Aid because it agreed that the alleged harassment occurred when Lund was not acting in his capacity as a supervisor. The Court’s conclusion relied on evidence demonstrating a long-standing personal relationship between Atalla and Lund that predated their working relationship. Atalla had testified that her preexisting relationship with Lund “was wholly unconnected to her work” at Rite Aid, and there was evidence establishing that, both before and after Lund and Atalla worked together, they “texted about a range of topics, extensively and frequently, including … concerning family, vacations, food and dining, alcohol and drinking, people and pets, exercise, as well as chit chat about work,” and they “regularly met for coffee and lunch, got together for holiday and birthday dinners, and were acquainted with each other’s spouses.”

As for the text exchange in question, the Court concluded that it was not work-related and, thus, could not form the basis of a harassment claim against Rite Aid. The Court noted that Lund sent the photo and video while intoxicated at a hotel late in the evening and Atalla received the texts at her home. Although Atalla argued that Lund’s explicit photos followed a discussion of work, Lund’s text asking how Atalla’s workday had gone was a “common inquiry for a friend.” Accordingly, the Court of Appeal explained that Rite Aid was not strictly liable because Rite Aid demonstrated that the harassment occurred outside of work and that Atalla was a willing participant in the personal friendship that pre-existed Atalla’s employment.

While Atalla provides some protection for employers when employees engage in purely personal conduct, unconnected to work, employers still will face liability for work-related actions by supervisors. Therefore, employers should consult with experienced employment counsel regarding training and other means to ensure that their supervisors’ work-related conduct does not result in liability.

As Pandemic Restrictions Ebb Employers Face Non-Exempt Remote Workers Issues

April 17, 2023 By Israel Samuels LLP Leave a Comment

With many pandemic restrictions lifted, many employers continue to offer full remote work or a hybrid to remain competitive and retain employees. Allowing any remote work by non-exempt employees has risks of which California employers need to be aware as they manage remote workers.

Whether or not they work remotely, employers must comply with all of the same wage and hour laws for non-exempt workers. Issues with non-exempt remote worker management often results in claims by such workers for off-the-clock work/unpaid wages, meal and rest break violations, and unreimbursed expenses.

To assist management employers should consider disseminating a timekeeping policy for remote workers and, potentially, implement tracking software to monitor work activity. Accurate reporting of all-time worked is essential as is a strict prohibition on off-the-clock work. While tracking software can be helpful, a requirement that remote employees confirm in writing that they have accurately reported all of their time worked will in itself help protect the company and assist it in defending against violation claims. Employers should also strictly prohibit emailing, texting, and phone calls when not clocked in, and require that all supervisors and upper management refrain from contacting non-exempt employees after hours.

Remote workers are entitled to compliant meal and rest breaks even when working from home. Additionally, the start and stop times of meal breaks should be accurately recorded to the minute – no rounding. To avoid unintended interruptions to meal and rest breaks of remote workers who may believe they are being helpful by responding to calls and emails even though they are on breaks, employers should distribute a meal and rest break policy for remote workers prohibiting any work while on breaks. Employers should also consider setting a break schedule so that supervisors know when workers are unavailable to help eliminate potential interruptions.

The California Labor Code requires employers to reimburse employees for “all necessary business expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.” For remote workers, this may include internet usage, computer equipment, and cell phone usage. Even with unlimited cell phone plans, courts have held that employers must pay some reasonable percentage of the employee’s cell phone bill, if used for work. The same reasoning applies to internet usage. Employers may believe they have provided all necessary equipment to remote workers that is necessary to perform their duties. But there are still potential expenses that could be recovered for office supplies, furniture, as well as traveling to and from the company’s place of business. Once an employee is fully remote, that becomes the employee’s “regular work site” for purposes of evaluating and reimbursement of travel time and mileage.

To manage the risks associated with business expense claims of remote workers, employers should create a business expense reimbursement policy and provide employees with the necessary supplies and equipment needed to perform their job remotely and a monthly stipend for incidental expenses like cell phone or internet, if required to be used for business reasons. Employees should still be required to submit a reimbursement request for any additional expenses incurred and Employers must have a mechanism to address, with proper documentation, amounts that employees do not believe are being covered by a monthly stipend. Finally, employees should be required to obtain approval in advance before purchasing any larger or more expensive items to determine if such expenditures are reasonably necessary before seeking reimbursement.

If your business permits remote work by non-exempt employees on a full-time or even hybrid basis, contact your business attorneys to ensure that all procedures and rules are in place for these workers. Otherwise, you will likely be confronted with a remote worker wage, hour, and/or expense claim.

CPPA Approves Final CPRA Regulations and Gets Sued

April 10, 2023 By Israel Samuels LLP Leave a Comment

The California Privacy Protection Agency’s (“Agency”) has now issued regulations to guide enforcement of the California Consumer Privacy Act (“CPRA”). The regulations have been approved by the California Office of Administrative and are now in force.

The CPRA regulations provide significant guidance in some areas but less direction in others. The regulations provide for some relief to businesses if a “disproportionate effort” of compliance to respond to an individualized request overcomes the reasonably foreseeable impact of a failure to respond to the consumer. The regulations provide a bit of input on what the business may do in these circumstances. The regulations also discuss how businesses can respond to consumers’ (in the employment context as employees or applicants) “requests to correct” when the correction involves sensitive information that cannot be disclosed.

Just when there appears to be some guidance in the regulations for businesses, The California Chamber of Commerce filed a lawsuit to arrest any enforcement of the new regulations by the Attorney General or the Agency to give businesses at least one year to adjust practices and get into compliance with the CPRA.

The CPRA has been in effect since January 1, 2023. Absent an injunction, the Agency’s active enforcement starts July 1, 2023. Employers should ensure they are taking steps to comply with the CPRA by reviewing the new regulations and consulting with their business counsel.

FTC May Preempt California Law on Non-Compete Agreements

April 3, 2023 By Israel Samuels LLP Leave a Comment

The Federal Trade Commission (FTC) has proposed new Federal regulations to ban non-compete clauses from employment agreements. The ban will include non-solicitation and other restrictions that are currently designed to deter employees from competing with an employer after the employment relationship concludes. The FTC is targeting any contractual term that has the effect of prohibiting a worker from seeking employment or operating a business after termination, including prohibiting employers from seeking to recoup their investment in training where an employee departs within a specified period of time.

The proposed ban will also impact relationships with independent contractors, externs, interns, volunteers and even sole proprietors providing service to a client.

The proposed regulations set forth two exceptions to the non-compete ban: (1) a franchisee in a franchisee-franchisor relationship, and (2) sale of all or substantially all of a business to preserve the goodwill of the business.

The franchisee-franchisor exception is consistent with the “rule of reason” exception to anti-trust restrictions. Under the regulations, a franchisor-franchisee agreement against poaching employees from other franchisees will not be presumed to decrease competition and will be permitted.

The goodwill exception, however, only applies if the person subject to the non-compete agreement owned at least a 25 percent interest in the business at the time of entering into the non-compete. This standard is less restrictive than California law. In California presently a non-compete with an employee is enforceable when the employee sells all of his equity (even if he or she has little equity) The FTC’s proposed regulations appear to hold quantification over need which will result in
fewer enforceable non-competes that are designed to preserve the goodwill of a business for the prospective purchaser.

The FTC’s regulations will require employers to give individualized notice to employees that any existing non-competes are rescinded. In addition, the regulation will supersede any state law or regulation that is inconsistent with the FTC’s regulations, although states will be entitled to create greater worker protections than those proposed by the FTC.

The FTC is not waiting for the regulations to take effect. Since the outset of 2023, it has prosecuted a handful of cases asserting that non-competes represent unfair competition.

While a private right of action does not yet, appear to exist within the regulations, if enforced, such regulations will strip employers of the ability to enforce noncompete clauses and may give employees the power to claim that non-compete agreements constitute a violation of public policy, a breach of the implied covenant of good faith and fair dealing or a predicate element to support a claim of unfair business practices.

The public comment period on the proposed regulations ended April 19, 2023. If the current version of the proposed regulations is promulgated, they will go into effect 180 days after the regulations are published.

In order for businesses to protect their trade secrets and other valuable confidential information, and in order for equity holders and employees to avoid or mitigate enforcement of non-competition provisions, it is essential that you discuss this matter with your business attorney.

No Discovery for Labor Commissioner Once Administrative Proceedings are Commenced

March 27, 2023 By Israel Samuels LLP Leave a Comment

This month the California Court of Appeal issued its decision in Garcia-Brower v. Nor-Cal Venture Group, a case that arose from an investigation into possible violations of California overtime laws by Nor-Cal Venture Group, Inc. (Nor-Cal), a company that operates fast food restaurants in the Sacramento area, the Labor Commissioner (Commissioner Garcia-Bower hereinafter the “Commissioner”) subpoenaed business records from Nor-Cal. Later, the Commissioner issued a wage citation to Nor-Cal, seeking over $900,000 in penalties and unpaid wages for alleged misclassification of about 40 restaurant managers.

Nor-Cal challenged the wage citation in an “informal” adjudicatory hearing, and while that adjudication was pending, the Commissioner issued a subpoena directing Nor-Cal’s “Person(s) Most Knowledgeable” on certain topics to testify at a deposition. When Nor-Cal refused, the Commissioner filed a petition in the trial court to compel Nor-Cal to comply. The trial court agreed with the Commissioner and ordered Nor-Cal to comply with the deposition subpoena.

Nor-Cal appealed and challenged the trial court’s order on the basis that (1) the Government Code does not contemplate parties to adjudicatory informal hearings taking depositions for the purpose of discovery; and (2) because, under the trial court’s reasoning, only the Commissioner may issue deposition subpoenas during the pendency of an informal adjudication, the trial court’s order permitting non-reciprocal discovery violates due process principles.

The Appellate Court reversed the trial court’s order and Nor-Cal did not have to comply with the deposition subpoena. It reasoned California’s overall statutory scheme regarding administrative proceedings provides for only limited discovery in connection with informal agency adjudications. So while the Commissioner has broad power to issue investigative subpoenas to a company for suspected violations of the law, that broad power ends upon initiation of adjudicative proceedings against the company.

If your business is subject to investigation by the California Labor Commissioner, it is essential that you immediately hire qualified legal counsel to help you navigate the informal adjudicatory proceedings the Commissioner may initiate.

Landlords Can Be Liable for Contractor and Subcontractor Injuries

March 20, 2023 By Israel Samuels LLP Leave a Comment

In California there is a rebuttable presumption that a hirer is not liable for workplace injuries sustained by employees of hired parties. This is known as the Privette Doctrine, which is named after the case that established the presumption.

There are two exceptions to the Doctrine: (1) there is liability if the hirer retained control over the work being performed, negligently exercised that control, and its negligent exercise of that control contributed to an employee’s injury (known as the “Hooker Exception”); and (2) there is liability if the hirer knew or should have known of a concealed hazard, that the hired party did not know of and could not have reasonably discovered, and the hirer failed to warn the hired party of the hazard (known as the “Kinsman Exception.”).

The Privette doctrine does not mean a landowner who hires a contractor is not liable to an injured subcontractor’s employees. This is starkly exemplified in California Court of Appeal case Ramirez v. PK 1 Plaza 580 SC LP (“Ramirez”). In that case Kimco Realty Corporation owned a shopping center in Livermore, California. Freeway Insurance Services, Inc. leased an office suite in the center from Kimco. In October 2017, Freeway vacated its suite. Under the lease, Freeway was responsible for removing the exterior signage from the suite. Kimco offered to handle the removal and bill the cost to Freeway, but Freeway opted to do it on its own.

Freeway hired Francisco Ramirez, a self-employed contractor, to remove the signage. On November 6, 2017, Ramirez arrived at the suite to remove the sign, however, no one arrived. After about 20 minutes, a woman from Kimco’s office arrived and gave him the keys to the suite. While he had been waiting, Ramirez noticed that the sign was powered by a low voltage electrical cable that would need to be disconnected for him to complete the job, and asked if a security guard or maintenance worker was onsite with “all the keys including for the attic access.” The woman responded that she did not know.

Once inside the suite, Ramirez searched for the electrical box to disconnect the low voltage electrical cable. Not finding the box, he decided to look for it on the roof. He went to the rear of the building and used his own ladder to climb onto the roof. While on the roof, he noticed a cupola that had an unlocked and open access door. Believing the electrical box might be in the cupola, he opened the access door and used a flashlight to look inside. Inside the cupola he saw a “big opening” in the drywall where he thought the electrical box might be located.

Unknown to Ramirez, nine feet from the access door, the cup floor “transitions to an opening with [two foot by six foot joists” which were two feet apart from each other. After traveling 12 feet into the cupola, Ramirez fell through the opening and the drywall below the ceiling below, landing on the sidewalk and sustaining serious injuries.

In January 2019, Ramirez sued Kimco for negligence, premises liability, negligence per se, and negligent inflection of emotional distress. Ramirez’ wife also brought a separate cause of action for negligent infliction of emotional distress, based on the allegation that she witnessed Ramirez fall, and loss of consortium. Kimco later brought a motion for summary judgment claiming that the “opening was neither a concealed condition nor . . . unascertainable by Ramirez” and that its duty to “tak[e] proper precautions to protect against obvious hazards in the workplace . . . was delegated to [him] under the Privette doctrine.” Ramirez, in opposition, argued that the Privette doctrine was inapplicable because there was no employment relationship between Ramirez and Kimco.

The trial court granted Kimco’s motion for summary judgment concluding that Kimco “had no duty to ensure [Ramirez’s] safety” because the Privette doctrine applied even though Kimco had not directly hired Ramirez. Ramirez appealed.

In a split decision, the 1st District Court of Appeal held the Privette doctrine was inapplicable because Kimco did not hire either Ramirez or Freeway. Thus, explained the Court, “Kimco did not delegate a responsibility for ensuring the worksite’s safety, either directly or ‘through the chain of delegation.’ Accordingly, the bedrock presumption of the Privette doctrine is absent in this case.”

It continued and expressly disagreed with the trial court and did not accept Kimco’s contention in its motion for summary judgment that it had delegated responsibility for workplace hazards under its lease agreement with Freeway. The Appellate Court found, “no aspect of the lease establishes that Kimco delegated a duty involving the roof’s condition to Freeway.”

First, while the lease provided that that Freeway would “have the non-exclusive right to use the Common Area,” which was defined to include the shopping center’s “roofs,” Kimco retained possession and control of the roof, including responsibility for maintenance and, therefore, did not delegate to Freeway a general duty of reasonable care with regard to dangerous conditions on the roof.

Second, under the lease, Kimco did not delegate to Freeway a duty to ensure the safety of the site where Ramirez performed his work. “Privette delegation is project-specific,” explained the Court of Appeal, “meaning it involves a duty limited not only to the contracted-for work but also to the place where that work occurs.” “At oral argument, Kimco claimed that in requiring Freeway to remove the sign, the lease necessarily delegated to Freeway the duty to ensure the safety of the area where that work was performed,” but explained the Court, “[e]ven assuming, without deciding, that the roof was reasonably included in that area, we reject the notion that a landowner may absolve itself of liability for conditions in a space over which it retains possession and control merely by assigning its tenant a task that could involve that space.”

Third, explained the Court of Appeal, “[a]pplication of the Privette doctrine is also not justified on a theory that Kimco and Freeway’s relationship with regard to the sign removal was analogous to an employer-independent contractor relationship”:
Kimco purported to “control[] [only] the results of [the sign removal] and not the means by which it [was] accomplished”, which might otherwise suggest that Freeway functioned like an independent contractor. But Freeway had no special “ability to perform the contracted work safely and successfully” compared to Kimco, and such an ability is a “major principle” that underlies the presumption that a hirer delegates responsibility for workplace safety to an independent contractor. Nor was Freeway in any business—whether as a general contractor, project manager, or otherwise—that had anything to do with the work Ramirez was hired to perform. Thus, even if an employer-independent contractor relationship can coexist with a lessor-lessee relationship, one of the main “hallmarks of an employer-independent contractor relationship”—that “the [lessor] hired [the lessee] to perform work”—is missing.

Finally, held the Court of Appeal, “the sign benefited Freeway more than it did Kimco, and Kimco did not directly or indirectly pay Freeway to install or remove it.” “The lease explicitly provided that the sign’s installation would be ‘at [Freeway’s] sole cost and expense’ and that its removal was ‘the responsibility of [Freeway],’” explained the Court, “Thus, Kimco did not effectively ‘hire’ Freeway to perform the work at issue”:
The Appellate Court went on to expressly state that the Privette doctrine is not the only path by which Kimco may ultimately avoid liability, or even the only path by which it may be deemed to have owed no duty to Ramirez.

Ramirez illustrates the need for property owners and landlords to include express delegation of responsibility and indemnity provisions, and a robust insurance provision, in leases and construction contracts. If you lease property or anticipate a construction project, make sure you connect with your business or real estate attorney to review and potentially, revise, your leases and contracts.