Ninth Circuit
The Dynamex ABC Test is RetroactiveVAZQUEZ v. JAN-PRO FRANCHISING INTERNATIONAL, INC.
The Ninth Circuit previously certified a question to the California Supreme Court regarding the retroactivity of the Dynamex ABC test regarding independent contractors. The California Supreme Court responded that the Dynamex decision is retroactive. The Ninth Circuit therefore amended and reissued its opinion in this matter.
The Ninth Circuit agreed that Dynamex applies retroactively and rejected Jan-Pro’s myriad arguments for avoiding a decision on the merits. The Ninth Circuit reiterated the California Supreme Court’s conclusion: “Dynamex applies retroactively to all nonfinal cases that predate the effective date of the Dynamex decision.” Dynamex’s ABC test placed the burden on the hiring entity to establish that the worker is an independent contractor not intended to be covered by the wage orders and required the entity to establish each of three factors: (A) the worker is free from the control or direction of the hiring entity in connection with the performance of the work; (B) the worker performs work outside the usual course of the hiring entity’s business; and (C) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed. The ABC Test set forth how to interpret the phrase “suffer or permit to work” in the California wage orders and stressed that the phrase was intended to be read broadly. Since the analysis is fact-intensive, the Ninth Circuit vacated the
CELA INVOLVEMENT
Congratulations to CELA member Shannon Liss-Riordan of Lichten & Liss-Riordan P.C.!
Ninth Circuit. Amended 2/2/21. 986 F.3d 1106. Opinion by District Judge Block, sitting by designation.
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