Ninth Circuit Withdraws Opinion on Dynamex Retroactivity

July 24, 2019

Reading Time : 1 min

Key Points

  • The Ninth Circuit has withdrawn its May 2, 2019, opinion in Vazquez v. Jan-Pro Franchising Int’l, Inc., in which it held that the California Supreme Court’s Dynamex decision regarding independent contractors and employees applies retroactively.
  • The Ninth Circuit will certify the retroactivity question to the California Supreme Court.
  • Until the California Supreme Court rules, alleged employers may still argue that Dynamex should apply only prospectively.

On July 22, 2019, in Vazquez v. Jan-Pro Franchising Int’l, Inc., the Ninth Circuit granted the defendant’s petition for panel rehearing and withdrew its May 2, 2019, opinion, in which it held that the California Supreme Court’s landmark decision in Dynamex Ops. West Inc. v. Superior Court, 4 Cal. 5th 903 (2018) applies retroactively. Dynamex established a new test—commonly known as the “ABC” test—for determining whether an alleged independent contractor should be considered an employee under the California wage orders.

Having withdrawn the May 2, 2019, opinion, the Ninth Circuit will now certify the question of retroactivity to the California Supreme Court. If the California Supreme Court grants the Ninth Circuit’s request, the retroactivity question may remain unsettled for well over a year. In the meantime, alleged employers in federal court may still argue that Dynamex should apply only prospectively, either because Dynamex changed a settled rule upon which the parties have relied, or because applying it retroactively would violate due process. See Vazquez v. Jan-Pro Franchising Int’l, Inc., 923 F.3d 575, 586-90 (9th Cir. 2019).

Click here to read Akin Gump’s alert regarding the Ninth Circuit’s prior Vazquez decision.

Share This Insight

Related Services, Sectors, and Regions

© 2024 Akin Gump Strauss Hauer & Feld LLP. All rights reserved. Attorney advertising. This document is distributed for informational use only; it does not constitute legal advice and should not be used as such. Prior results do not guarantee a similar outcome. Akin is the practicing name of Akin Gump LLP, a New York limited liability partnership authorized and regulated by the Solicitors Regulation Authority under number 267321. A list of the partners is available for inspection at Eighth Floor, Ten Bishops Square, London E1 6EG. For more information about Akin Gump LLP, Akin Gump Strauss Hauer & Feld LLP and other associated entities under which the Akin Gump network operates worldwide, please see our Legal Notices page.