On May 2, 2019, the U.S. Court of Appeals for the Ninth Circuit in Vazquez v. Jan-Pro Franchising International, Inc. applied the California Supreme Court’s April 2018 Dynamex decision retroactively. In Dynamex, the Supreme Court created the “ABC test” for determining when a worker will be classified as an employee or an independent contractor. On July 22, 2019, the Ninth Circuit granted the employer’s petition for rehearing, withdrew its decision in Vazquez, and certified the question of whether the Dynamex decision applies retroactively to the Supreme Court.
The state of the law regarding the classification of a worker as an employee or an independent contractor remains unsettled, and the answer may depend on the forum adjudicating the question. In the coming weeks, the California State Senate will begin hearings on Assembly Bill 5 that has already passed in the House. AB 5 would apply the standards of the Dynamex decision beyond application to the California Wage Orders to all provisions of the Labor Code and to the Unemployment Insurance Code, except where a statutory exemption applies.