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The ABCs of Independent Contractor Classification: California Supreme Court Holds Strict Independent Contractor Test Applies Retroactively

By Tony Oncidi, Kate Gold, Kate Napalkova & Michelle Lappen on January 15, 2021
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On January 14, 2021, the California Supreme Court decided, at the request of the Ninth Circuit, that its decision in Dynamex Operations West, Inc. v. Superior Court, 4 Cal.5th 903 (2018) applies retroactively. Vazquez v. Jan-Pro Franchising International, Inc. (SC S258191 1/14/21). Dynamex adopted the “ABC test” for determining whether a worker is an employee or independent contractor for purposes of the obligations imposed by California’s wage orders. This holding makes it more difficult for a hiring entity to properly classify a worker as an independent contractor. The three-prong test requires the hiring entity to prove that the worker is: (A) free from the control and direction of the hiring entity; (B) performing work outside of the usual course of the hiring entity’s business; and (C) customarily engaged in an independently established trade of the same nature as the work performed.

In 2019, the Ninth Circuit held that the ABC test applied retroactively in the Vazquez case (please see our earlier blog post “Strict Independent Contractor Test Applies Retroactively”). The California high court followed this logic in 2021.

The California Supreme Court reasoned that because Dynamex did not change a settled rule, the ABC test applies retroactively with respect to obligations arising from California’s wage orders. Indeed, the Court relied on its prior opinions in which it noted “that the test for determining whether a worker should be classified as an employee or independent contractor in the wage order context remained an open question.” The Court was further motivated by policy concerns, including that the wage orders provide protection for workers, protect law-abiding businesses from unfair competition by businesses that do not comply, and benefit the public at large, which bears the burden of the ill effects of non-compliance with the wage orders’ minimum standards for working conditions.

In line with the Ninth Circuit decision in Vazquez, the California Supreme Court held that Dynamex applies retroactively to all non-final cases that predate the effective date of the April 30, 2018 Dynamex opinion. This could make businesses potentially liable for lawsuits filed before the rigid ABC test existed and may expand employers’ liability for practices that predate Dynamex. The retroactivity of Dynamex adds another temporal dimension to the existing dilemma created by fundamentally different standards for worker classification on the state and federal levels for businesses with independent contractors in California. A business that classifies its workers appropriately for federal purposes, and that historically classified its workers appropriately for purposes of California state law (as employers understood it prior to the Dynamex opinion), could nevertheless have exposure to liability in the wage and hour context in California.

Notably, however, Dynamex addressed only California’s wage orders, meaning that the holding in Dynamex does not apply to the much broader application of California’s worker classification law known as Assembly Bill 5 (“AB 5”), which did not go into effect until January 1, 2020 and applies only prospectively.

Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi heads the Labor & Employment Law Group in the Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination…

Anthony J. Oncidi heads the Labor & Employment Law Group in the Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

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Photo of Kate Gold Kate Gold

Kate Gold is a partner in the Labor & Employment Law Department in the Los Angeles office.

Kate has over 25 years of experience representing clients in a range of industries, across all areas of employment law.  An experienced litigator, she has represented…

Kate Gold is a partner in the Labor & Employment Law Department in the Los Angeles office.

Kate has over 25 years of experience representing clients in a range of industries, across all areas of employment law.  An experienced litigator, she has represented clients in all types of employment-related suits, including class and collective actions, discrimination, retaliation and harassment, non-compete and wage/hour matters.  In addition to litigating, she conducts high-level workplace investigations and routinely counsels clients on matters involving the full range of state and federal employment issues.

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Photo of Kate Napalkova Kate Napalkova

Kate Napalkova is a partner in the Tax Department and a member of the Employee Benefits & Executive Compensation Group.

Kate advises public and private companies, private investment funds, executives and boards on a broad range of compensation and employee benefits matters. Kate’s…

Kate Napalkova is a partner in the Tax Department and a member of the Employee Benefits & Executive Compensation Group.

Kate advises public and private companies, private investment funds, executives and boards on a broad range of compensation and employee benefits matters. Kate’s practice includes the compensation and employee benefits aspects of mergers and acquisitions, reorganizations, spin-offs, initial public offerings, financings and other corporate transactions. Kate’s practice further focuses on advising clients across various industries on the negotiation, structuring and implementation of benefits and compensation plans and executive compensation arrangements; golden parachutes; securities reporting, registration and disclosure compliance; and corporate governance matters.

While in law school, Kate served as the editor-in-chief of the Fordham International Law Journal.

Kate is fluent in Russian.

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Michelle Lappen

Michelle Lappen is a law clerk in the Labor & Employment Department. She earned her J.D. from Columbia Law School, where she was an articles and submissions editor for the Columbia Journal of Law & the Arts. During law school, Michelle was…

Michelle Lappen is a law clerk in the Labor & Employment Department. She earned her J.D. from Columbia Law School, where she was an articles and submissions editor for the Columbia Journal of Law & the Arts. During law school, Michelle was a teaching fellow for the Advanced Negotiation Workshop.

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  • Posted in:
    Employment & Labor
  • Blog:
    California Employment Law Update
  • Organization:
    Proskauer Rose LLP
  • Article: View Original Source

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