Partner Jason Wilson participated in a virtual oral argument before the California Supreme Court on November 3, 2020 in the high-profile case of Vazquez v. Jan-Pro Franchising International, Inc. et al.
The California Supreme Court certified the question whether the “ABC Test,” introduced in Dynamex Operations West Inc. v. Superior Court, 4 Cal.5th 903 (2018), and now used to determine whether an individual is an independent contractor versus an employee in certain contexts, applies retroactively. On behalf of client Jan-Pro Franchising International, Inc. (“Jan-Pro”), Jason argued that the California Supreme Court should rescind certification because application of the “ABC Test” to Jan-Pro was erroneous and contrary to the plain language of the Test. In the alternative, Jason argued that the retroactive application of Dynamex is improper, in that it would unfairly prejudice those who relied on prior law, including specifically franchisors.
As the Daily Journal quoted Jason, “[t]his case should be decertified for four reasons, because the ‘ABC’ test should have never been applied to Jan-Pro [as] Jan-Pro isn’t a hiring entity under the plain meaning of the court decisions. Jan-Pro didn’t do the classification here. An intermediary did. Jan-Pro does not have a contractual relationship with the petitioners in this case. Jan-Pro wasn’t the one who hired, so the test itself shouldn’t apply to Jan-Pro in this particular instance.”
Jason further argued that Dynamex should not be applied retroactively in any event because, as the Daily Journal quoted Jason “[it is] a sea change in the law. It’s completely different than Borello. Dynamex could not merely be an evolution of Borello [as] the Legislature effectively affirmed the distinction between the Borello and ‘ABC’ tests by codifying both in Assembly 5. The statute, which requires employers to apply the ‘ABC’ test by default, includes exemptions for certain industries and professions that are held to the Borello standard.”
To read the Daily Journal article, click here.
To read the Bloomberg Law article, click here.
To read the Law360 article, click here. (subscription required)
To read the Law.com article, click here. (subscription required)