State high court asked to decide if Dynamex applies retroactively

In granting certification, the California Supreme Court will answer one of the remaining questions on misclassification stemming from the 2018 Dynamex Operations West Inc. v. Superior Court decision: Should it apply retroactively in all labor disputes?

In an order published last week, the state high court agreed to hear Vazquez v. Jan-Pro Franchising International, 2019 DJDAR 3707, which the 9th U.S. Circuit Court of Appeals initially answered back in May before retracting its decision a few months later.

The federal appellate court then kicked it over to the state Supreme Court in September, requesting an answer to a "question of state law," court records show. In filing the request, the 9th Circuit said it would accept and abide by any decision the state Supreme Court makes if "it agrees to decide this question," according to court documents.

Prior to the retraction, the 9th Circuit vacated a Northern District of California ruling and held the Dynamex decision applied retroactively.

Assembly Bill 5, which codifies the employee-presumptive, three-prong "ABC" test set forth in Dynamex, will apply retroactively for wage orders, all exemptions and unemployment insurance when it goes to effect Jan. 1, the bill reads. It will apply for workers compensation matters beginning next July.

-- Glenn Jeffers