I haven’t been able to post lately, but a lot has happened, especially on the Dynamex front. Here’s the latest.
Dynamex Operations West v. Superior Court, 4 Cal. 5th 903 (2018)—vastly limiting when a worker may be classified as an independent contractor for purposes of the Wage Orders—has taken the employment bar and California employers by storm.
The California Legislature is considering Assembly Bill 5 and whether to codify the Dynamex ABC test as applied to all Labor Code claims, expanding the ABC test beyond just claims brought under the Wage Orders. Compare Garcia v. Border Transportation Group, LLC, 28 Cal. App. 5th 558 (4th Dist. Oct. 22, 2018), as modified (Nov. 13, 2018)) (holding that the ABC test applies only to claims under the Wage Orders) (see my Garcia write-up here).
Lobbying groups are jockeying for changes to AB 5, including by trying to add numerous exemptions for different professions and industries. Take a look at the latest text of the bill here, and you’ll see what I mean (as of today, the current bill text contains exemptions for salespeople; hairstylists; barbers; insurance agents; doctors; persons providing professional services in the fields of law, dentistry, architecture, engineering, podiatry, veterinary, private investigation, or accounting; and more).
Meanwhile, the Ninth Circuit delivered Vazquez v. Jan-Pro Franchising International, Inc., 923 F.3d 575 (9th Cir. May 2, 2019) (Google Scholar link here), holding that Dynamex applies retroactively. (The Ninth Circuit also discussed in dicta that the ABC test can be applied against a franchisor in a wage-and-hour case without regard to Patterson v. Domino’s Pizza, LLC, 60 Cal. 4th 474 (2014) (holding that a franchisor is not liable for claims brought one of its franchisee’s employees under the Fair Employment and Housing Act unless the franchisor retained a “general right of control over factors such as hiring, direction, supervision, discipline, discharge, and relevant day-to-day aspects of the workplace behavior of the franchisee's employees” (i.e., HR functions)).
Now, on petition for rehearing, the Ninth Circuit has withdrawn its opinion in Vazquez and certified the question of Dynamex retroactivity to the California Supreme Court:
The opinion in the above-captioned matter filed on May 2, 2019, and published at 923 F.3d 575, is WITHDRAWN. A revised disposition and an order certifying to the California Supreme Court the question of whether Dynamex Ops. W. Inc. v. Superior Court, 416 P.3d 1 (Cal. 2018), applies retroactively will be filed in due course.
Vazquez v. Jan-Pro Franchising International, Inc., __ F.3d __, 2019 WL 3271969, at *1 (9th Cir. no. 17-16096 (July 22, 2019)).
Stay tuned as this roller coaster ride continues.