A Ninth Circuit Court of Appeals panel presided over by Frederic Block recently issued its opinion in Vasquez, et al. v. Jan-Pro Franchising International, Inc., finding that the "ABC test" for worker classification adopted last year in Dynamex Ops. W. Inc. v. Superior Court should apply retroactively to all wage-and-hour cases in California.
The ABC test imposes three elements that must all be true for a worker to be classified as an independent contractor: A) the worker is free from the control of the hiring entity in connection with work performance, both under contract and in fact; B) the worker performs work outside the hiring entity's usual business; and C) the worker is customarily engaged in an independent business of the same nature as the work performed. The Ninth Circuit panel finds that this worker classification test may be applied retroactively to civil matters, because "Dynamex did not fabricate the ABC test anew, but instead carefully explained how the test remains 'faithful... to the fundamental purpose of [California's] wage orders.'"
This ruling may be detrimental to some employers affected by the retroactive treatment of the Dynamex decision. To read the full Ninth Circuit opinion, click here: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/02/17-16096.pdf
To discuss changes you may want to make to your worker classification practices, contact one of our attorneys today.