Employment Law Daily Ninth Circuit withdraws opinion, will certify to state supreme court whether Dynamex given retroactive application in Jan-Pro franchisee suit
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Wednesday, July 24, 2019

Ninth Circuit withdraws opinion, will certify to state supreme court whether Dynamex given retroactive application in Jan-Pro franchisee suit

By WK Editorial Staff

Withdrawing its May 2, 2019, opinion, the Ninth Circuit says it will certify the retroactivity of the Dynamex decision to the California Supreme Court.

In Dynamex Operations West, Inc. v. Superior Court, an April 30, 2018, decision, the California Supreme Court adopted the ABC test for determining whether workers are independent contractors or employees under California wage orders. Just a few months ago, the Ninth Circuit found that the Dynamex test was applicable to a class claim filed by workers for a “three-tier franchising” model. It has retreated from that decision in a one-page order granting a petition for panel rehearing, withdrawing its May 2 opinion in Vazquez v. Jan-Pro Franchising International, Inc., and noting that a revised disposition and an order certifying to the California Supreme Court the question of whether Dynamex applies retroactively “will be filed in due course” (Vazquez v. Jan-Pro Franchising International, Inc., July 22, 2019, per curiam).

Rejecting Jan-Pro Franchising’s arguments for claim preclusion and against retroactive application of Dynamex, the Ninth Circuit earlier had vacated a district court’s dismissal of a class claim seeking to determine whether janitorial workers who purchased unit franchisees were independent contractors or employees. The appeals court had found plaintiffs in this case were not in privity with the plaintiffs in the First Circuit case of Depianti v. Jan-Pro Franchising International, Inc., because their suit had been severed. Moreover, California appellate courts apply intervening state supreme court rules retroactively when reviewing cases, even if the judgment in the trial court was entered prior to the supreme court ruling.

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