On Wednesday, May 27, 2020, Willenken lawyers Jason H. Wilson, Eileen M. Ahern, and Amelia L.B. Sargent filed a brief before the California Supreme Court on a certified question of critical importance in this state: whether the Court’s decision in Dynamex Operations West, Inc. v. Superior Court, 4 Cal.5th 903(2018), applies retroactively.
In Dynamex, the Court adopted the so-called “ABC Test” for determining whether a worker has been misclassified as an independent contractor rather than an employee. The Legislature subsequently adopted the ABC Test via Assembly Bill No. 5, whose application to the “gig economy” has been hotly contested.
In the case at hand, Vazquez v. Jan-Pro Franchising Int’l, Inc., 923 F.3d 575, 594-596 (9th Cir. 2018), vacated and reinstated in part, 939 F.3d 1045, 1050 (9th Cir. 2019),the Ninth Circuit applied the ABC Test to a national franchisor, Jan-Pro Franchising International, Inc. (“Jan-Pro”). In the brief, Willenken argues that the California Supreme Court should rescind certification because application of the ABC Test to Jan-Pro was error in the first instance, and contrary to the ABC Test’s plain language. In the alternative, Dynamex should not be retroactive because it would unfairly upset the franchising industry’s reliance on prior law.