From JDSupra, Aaron Colby and Laura Heckathorn discuss a recent case in California in which the court said that the ABC test for determining if a worker is an employee or independent contractor which was adopted by the California Supreme Court in Dynamex, was retroactive. Aaron and Laura write:
The Dynamex decision and the passage of AB 5 has led to confusion about the applicable standard to use for determining whether a worker is misclassified as an independent contractor. That did not stop the Second Appellate Court in Gonzales v. San Gabriel Transit, Inc., from holding that the ABC test set forth in Dynamex is retroactive.
On October 8, 2019, the Court of Appeals for California’s Second Appellate District in Gonzales v. San Gabriel Transit, Inc., ordered the trial court to reconsider its denial of class certification of a proposed class of allegedly misclassified drivers because the appeal was pending when the Dynamex decision was issued.
The Gonzales court held that: the “ABC test adopted in Dynamex is retroactively applicable to pending litigation” asserting wage order violations and Labor Code violations based on wage orders; and it applies to Labor Code claims that are either “rooted in one or more wage orders, or predicated on conduct alleged in one or more wage orders.”
For other Labor Code claims not rooted or predicated in a wage order, the proper standard is the Borello test, which looks to multiple factors and focuses on control of the manner and means to complete the work.
Whether the California Supreme Court will weigh in and address the question certified by the Ninth Circuit in Vasquez – i.e., whether the ABC test set forth in the Dynamex decision applies retroactively to claims covering the time period prior to April 2018 – remains uncertain.
See our prior advisory on this here.