(A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; and
(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and
(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
The Dynamex decision presumes all workers in California to be “employees” and the legal burden of proof falls on the employer to prove otherwise using the above ABC Test.
How would this recent decision be applied to the Vazquez v. Jan-Pro Franchising International, Inc. case. Would the court consider Dynamex to be retroactive?
The defendant extensively argued Dynamex did not apply to their case and could not be applied retroactively. The Ninth Circuit disagreed, concluding in fact the Dynamex decision was simply “clarifying” existing law, not establishing new law. The case has been remanded to district court with orders that the new ABC Test is to be applied to the case retroactively.
The fact the Ninth Circuit finds the Dynamex ABC test applies retroactively should sound alarm bells for any entity with independent contractors in California. Are you concerned about your company’s position concerning independent contractors? Contact the Watkins Firm or call 858-535-1511 for a free consultation and learn more about Dynamex and now the recent action by the Ninth Circuit may affect your business model.