On July 22, 2019, the Ninth Circuit withdrew its opinion in Vazquez v. Jan-Pro Franchising (click here for order).  That original opinion held that a 2018 decision from the California Supreme court in Dynamex Operations West v. Superior Court applied retroactively. Now the question of retroactivity will be certified to the California Supreme Court for decision. The Dynamex decision is important because it adopted the “ABC” test for determining employment status, which requires employers to overcome a presumption that all workers are employees by establishing that (1) the worker is free from the employer’s control, (2) the worker performs work outside the usual course of the employer’s business, and (3) the worker is customarily engaged in an independently established trade, occupation, or business.

Pending the California Supreme Court’s ruling on retroactivity, franchisors (and others) may continue to argue that Dynamex’s ABC test should only be applied prospectively. It is also worth noting that in Curry v. Equilon Enterprises, LLC the California Appellate Court found that Dynamex’s ABC test could not be used to determine if an employee was also an employee of an alleged joint-employer.

Stay tuned for additional details regarding this case.