Ninth Circuit Applies Dynamex Retroactively And Offers “Guidance”

Vazquez v. Jan-Pro Franchising Int’l, Inc., 986 F.3d 1106 (9th Cir 2021)

Following the California Supreme Court’s answer in the affirmative to the certified question from the Ninth Circuit as to the retroactive effect of Dynamex Ops. W. Inc. v. Superior Court, 4 Cal. 5^th 903 (2018), the Ninth Circuit in this opinion amended and reissued its prior opinion and offered the following “observations and guidance” on remand to the district court:  (1) There is no “Patterson gloss” to the ABC Test, meaning that the opinion in Patterson v. Domino’s Pizza LLC, 60 Cal. 4^th 474 (2014) (involving the absence of franchisor liability for the alleged sexual assault of an employee of a franchisee) has no application to the ABC test and wage/hour cases; (2) Other courts have considered the three-tier franchise structures in applying the ABC Test; and (3) Prong “B” of the ABC Test (the one involving the question of whether the hiring entity is engaged in the same usual course of business as the worker) “may be the most susceptible to summary judgment.”