Janitorial workers urge state Supreme Court to apply Dynamex retroactively

Attorneys for a group of janitorial workers alleging misclassification laid out their case to the state Supreme Court, arguing the three-prong "ABC" test adopted in Dynamex not only should apply retroactively, but its interpretation be broadened.

In an opening brief filed Wednesday, plaintiffs' attorney Shannon Liss-Riordan of Boston-based Litchen & Liss-Riordan, PC argued Dynamex should be retroactively applied in wage-and-hour violations as well as when franchisees are misclassified as independent contractors rather than employees, when additional entities serve as joint employers and when claims are bought under state Labor Code Section 2802 for work-related expenses.

"These questions are interrelated," Liss-Riordan wrote. "Not only are they all central to the resolution of this case but resolving one while leaving the others unaddressed leaves open escape hatches that employers will continue to exploit in the face of unsettled law."

The brief's scope expands beyond what the 9th U.S. Circuit Court of Appeals had in mind when they punted the case to the state high court justices last September, asking them to answer the retroactivity question. Vazquez v. Jan-Pro Franchising International, Inc., S258191.

But Liss-Riordan wrote the questions are necessary to ensure the state law had a comprehensive coverage against all possible challenges.

"It is therefore vital for this court to settle these (unsettled) questions of state law in the wake of Dynamex, in order to enforce the California labor standards and thus 'enable [workers] to provide at least minimally for themselves and their families and to accord them a modicum of dignity and self respect,' as this court intended," she wrote. Dynamex Operations West Inc. v. Superior Court.

In Vazquez, a group of janitors initially sued in the Northern District of California alleging they were misclassified as contractors and underpaid, according to court documents. The company claimed it sold janitorial franchises and was not a cleaning business, despite that being a main function of its business, and won summary judgment, court documents show.

While on appeal, the state Supreme Court ruled on Dynamex, which the 9th Circuit took into account when it reversed the lower court's summary judgment and ruled the ABC test should be applied retroactively, court documents show.

The federal appellate court later retracted that ruling and requested the state Supreme Court take the case to answer a "question of state law," saying it would abide by the state high court's decision if it agreed to hear the case, according to court documents.