Two months ago, a Ninth Circuit panel withdrew its earlier opinion in Vazquez v. Jan-Pro Franchising International, Inc., which had held that the California Supreme Court’s decision in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 was retroactive. Along with the withdrawal, the federal court said it would “in due course” ask the Supreme Court itself about the retroactivity of Dynamex, which limits employers’ rights to call workers independent contractors. [Disclosure: Horvitz & Levy filed amicus curiae briefs (here, here, and here) in Dynamex.]
Today, the Ninth Circuit made good on its promise, asking the Supreme Court to answer: “Does the Court’s decision in Dynamex Operations West Inc. v. Superior Court, 416 P.3d 1 (Cal. 2018), apply retroactively?”
Under rule 8.548(f)(5), the Supreme Court can “restate the question or ask the requesting court to clarify the question.” That could happen here. The court might expressly direct the parties to address in their briefs the effect on retroactivity of Assembly Bill 5, legislation Governor Gavin Newsom signed last week that by its terms is intended to “codify the decision of the California Supreme Court in Dynamex and [to] clarify the decision’s application in state law.” The Legislative Counsel’s Digest of AB 5 includes this: “The bill would state that addition of the provision to the Labor Code does not constitute a change in, but is declaratory of, existing law with regard to violations of the Labor Code relating to wage orders of the Industrial Welfare Commission. The bill would also state that specified Labor Code provisions of the bill apply retroactively to existing claims and actions to the maximum extent permitted by law while other provisions apply to work performed on or after January 1, 2020.”
Besides its order asking for Supreme Court resolution of the retroactivity question, the federal court issued a new opinion reaffirming everything from its now-withdrawn opinion except for its retroactivity ruling. One of the holdings it says it’s “re-establish[ing]” is that retroactively applying Dynamex would not violate the defendant’s federal due process rights.