As we previously reported, on May 2, 2019, the Ninth Circuit Court of Appeals in Vazquez v. Jan-Pro Franchising Int'l, No. 17-16096, held that the California Supreme Court's landmark decision in Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018), applies retroactively.

Recently, however, the Ninth Circuit withdrew that opinion and indicated that it will be certifying the question of whether Dynamex applies retroactively to the California Supreme Court. Vazquez v. Jan-Pro Franchising Int'l, No. 17-16096 (9th Cir. July 22, 2019). In other words, the Ninth Circuit will ask the California Supreme Court, the final arbiter of California law, to answer the question instead.

This is a temporary victory for businesses, particularly those in the gig economy. For the time being, federal district courts are no longer bound by Vazquez's holding and are once again free to consider the issue of retroactivity anew. The decision might also signal the Ninth Circuit's discomfort with its decision and the possibility that Dynamex should not apply retroactively. 

While the California Supreme Court has discretion to grant or deny the Ninth Circuit's certification request, a denial is unlikely. Employers throughout the state will now be waiting with bated breath for the Supreme Court's final resolution of the issue. But the wheels of justice move slowly, so a decision is unlikely any time soon.

We will continue to follow and report on any developments, including any legislative developments on this front (high on our list is AB5, passed in May by the State Assembly and designed to "codify the decision in the Dynamex case and clarify its application").