The Ninth Circuit today announced it will be asking the California Supreme Court to decide whether the state court’s opinion last year in Dynamex Operations West, Inc. v. Superior Court applies retroactively. Dynamex limits employers’ rights to call workers independent contractors. [Disclosure: Horvitz & Levy filed amicus curiae briefs (here, here, and here) in Dynamex.]
A three-judge federal appellate panel in May ruled the opinion is retroactive, guessing that’s what the Supreme Court would say. Now, however, the panel wants to hear it straight from the horse’s mouth, granting a rehearing petition, withdrawing its May opinion, and saying that “an order certifying to the California Supreme Court the question of whether Dynamex Ops. W. Inc. v. Superior Court, 416 P.3d 1 (Cal. 2018), applies retroactively will be filed in due course.”
The Ninth Circuit’s now-withdrawn opinion had determined the retroactivity question based in part on the Supreme Court’s summary denial of one Dynamex amici’s request that the Dynamex decision be modified to state the decision is prospective only. The Ninth Circuit called the denial a “strong[ ] suggest[ion]” of the Supreme Court’s views. We criticized that reasoning and noted the Ninth Circuit could, on rehearing, still refer the retroactivity question to the Supreme Court, which the federal court today says it will do.
