Law360 outlined in an article titled “9th Circ. Asked To Prod Dynamex Rule In Joint Employer Suits,” the en banc petition filed by Eileen Ahern, Amelia Sargent, and Jason Wilson on February 16, 2021.
The petition was filed on behalf of firm client Jan-Pro Franchising International Inc. (Jan-Pro), a cleaning franchiser. In the en banc petition, Jan-Pro argues that the full Ninth Circuit should review a panel decision, after the recent California Supreme Court holding in Gerardo Vazquez v. Jan-Pro Franchising International, Inc. et al, 923 F.3d 575, 594-596 (9th Cir. 2018), vacated and reinstated in part, 939 F.3d 1045, 1050 (9th Cir. 2019), which determined that its ruling in Dynamex Operations West v. Superior Court of Los Angeles applies retroactively.
The petition states that a panel decision, after the Dynamex holding to vacate a district court’s summary judgment, in Jan-Pro’s favor, based on Martinez v. Combs, should be reconsidered because Dynamex did not involve a joint employer issue, however this is a key issue in the Jan-Pro case.
Jan-Pro said in its filing “[t]o hold Dynamex overrules Martinez is grave error. How can a case that has no joint employment fact pattern overrule the joint employer test found in Martinez?” Jan-Pro further argues that the panel should have determined that the district court correctly applied a California appeals court’s holding in Martinez. The Martinez joint employer test determines when an employer is liable for a labor code violation, even when it does not have a contract with the plaintiff.
To read the Law360 article, click here.
