Dynamex applies retroactively
Gonzales v. San Gabriel Transit (Cal Ct App 10/08/2019) [PDF] has held that Dynamex Operations West, Inc v. Superior Court (Calif Supreme Ct 04/30/2018) [PDF] applies retroactively to cases that were pending when Dynamex was decided. (Dynamex held that the “ABC test” is to be used to decide whether a worker is an employee or an independent contractor under California wage orders.)
The analysis took one paragraph:
“In any event, there is no reason to conclude that Dynamex departs from the usual rule of retroactive application. Judicial decisions in civil litigation almost uniformly are given retroactive effect and applied to pending litigation. (See e.g., Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 967; Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973, 978; Grobeson v. City of Los Angeles (2010) 190 Cal.App.4th 778, 796; Rose v. Hudson (2007) 153 Cal.App.4th 641, 646.) A rare exception is employed in extraordinary circumstances dictated by considerations of fairness and public policy, such as when a decision articulates a new standard or rule of law. (See Rose v. Hudson, supra, 153 Cal.App.4th at p. 653, Hoschler v. Sacramento City Unified School Dist. (2007) 149 Cal.App.4th 258, 271.) The instant litigation presents no extraordinary circumstance. Dynamex did not establish a new standard. Rather, its expressly articulated purpose was to streamline the existing complex, multifactor wage order analysis: “In our view, this interpretation of the suffer or permit to work standard is faithful to its history and to the fundamental purpose of the wage orders and will provide greater clarity and consistency, and less opportunity for manipulation, than a test or standard that invariably requires the consideration and weighing of a significant number of disparate factors on a case-by-case basis.” (Dynamex, supra, 4 Cal.5th at p. 964.)”
Meanwhile, the 9th Circuit has certified this question to the California Supreme Court in Vazquez v. Jan-Pro Franchising (9th Cir 09/24/2019) [PDF].