The debate about whether the Dynamex decision applies retroactively is alive again thanks to a reverse course by the Ninth Circuit Court of Appeals.  As we previously discussed in greater detail here, in April 2018, the California Supreme Court issued a groundbreaking decision in Dynamex that workers would be presumed employees unless they satisfied each prong of the dubbed “ABC test.”  One of the unsettled questions that remained following the Dynamex decision was whether the “ABC test” would apply only prospectively, or retroactively as well.  For almost a year after Dynamex and, as we previously covered, the Ninth Circuit seemingly laid this issue to rest in May 2019 when it held that Dynamex’s “ABC test” does indeed apply retroactively in its Vazquez v. Jan-Pro Franchising International, Inc. decision.

Less than three months after Vazquez, however, the Ninth Circuit appears to have done an about-face.  The Ninth Circuit withdrew its Vazquez opinion on July 22, 2019 and indicated that the California Supreme Court would be the final arbiter of the retroactivity issue of Dynamex’s “ABC test.”  Whether the Ninth Circuit’s latest move will serve as a precursor of things to come, or merely a brief respite for the inevitable, remains to be seen.  For now, employers and workers alike must again wait for the courts to resolve—for the final time—whether the Dynamex decision applies retroactively.

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