9th Circuit Asks California's High Court to Decide Whether "Dynamex" Test Applies Retroactively
Author: Michael Cardman, XpertHR Legal Editor
July 23, 2019
The question of whether California's worker-friendly test for independent contractors can be applied retroactively is once again unsettled. The 9th Circuit Court of Appeals surprised observers by withdrawing a recent ruling that the test was to be applied retroactively.
In its 2018 Dynamex ruling, the California Supreme Court established an "ABC test," under which a worker will be considered an employee under California's wage orders - which govern minimum wages, overtime, show-up time / reporting time requirements, meal and rest breaks and other working conditions - unless the hiring entity can show that the worker:
- Is free from control and direction of the work, both under the contract and in fact;
- Performs work that is outside the usual course of its business; and
- Is customarily engaged in an independently established trade, occupation or business.
Earlier this year, the 9th Circuit held in the case of Vazquez v. Jan-Pro Franchising Int'l, Inc., that the Dynamex ruling can be applied retroactively.
But on July 22, the 9th Circuit withdrew its Vazquez opinion and said it will ask the California Supreme Court to decide the question of whether Dynamex applies retroactively.
Federal courts often ask state courts to decide matters of state law, as recently happened when the 9th Circuit asked the highest court in Washington state to determine whether obesity qualifies as a disability under the Washington Law Against Discrimination (WLAD). However, it is rare for them to do so after having already decided a question, as the 9th Circuit did with Vazquez.
Further complicating matters, California's legislature is considering a bill that would codify and expand the Dynamex test.