Paid sick leave, additional family and medical leave, disability and parental leave – the number of leave entitlements at the state and local level keep proliferating. Compliance with this new legal landscape is tricky, and particularly so for employers with multi-jurisdictional workforces. The Hogan Lovells Employment team is here to help. On November 7 at 1 p.m. Eastern, we are hosting a one-hour live webinar to discuss the new laws and how employers can ensure compliance.

Our webinar – geared to in-house counsel and human resources staff but open to anyone – will unpack the common features of the new laws and highlight key differences across jurisdictions. We will provide tips for compliance with the patchwork of laws already on the books or pending, including the interplay of state paid leave benefits with employers’ own benefits plans and established unpaid leave rights under the Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA), and how to update policies and handbooks. Our panel of employment lawyers in California, New York, Massachusetts, and the D.C. region will prepare employers to avoid running afoul of this “new normal” and to correctly guide employees who approach their manager or Human Resources with the following scenarios:

  • I need a few days off because I am ill or injured.
  • I need time off to care for a family member in a medical crisis.
  • I need time off to deal with my own medical crisis.
  • I’m having a baby, how much time can I take?
  • Can I get additional time off under the FMLA or ADA?

We hope you will join us.


Later this week, on October 11, 2019, several important changes are coming to the New York Human Rights Law (“NYHRL”).

As you may recall, last year the New York legislature enacted legislation prohibiting employers from requiring nondisclosure sexual harassment claims in Nondisclosure Agreements (“NDA”) unless the employee requests confidentiality.  As of next week, that prohibition is strengthened to include all claims of discrimination, harassment and/or retaliation in “any settlement, agreement or other resolution of any claim, the factual foundation for which involves discrimination … that would prevent the disclosure of the underlying facts and circumstances … unless the condition of confidentiality is the complainant’s preference.”  If the employee requests confidentiality, then the Agreement may contain this provision.

Notably, the law does not prohibit the confidentiality of the settlement amount or of the NDA itself.

NDAs now must also be written in plain English and in the primary language of the employee.  In addition, they must give the employee at least 21 days to consider the NDA and contain a 7 day revocation period if the employee wishes to revoke their consent.

Additionally, as of January 1, 2020, NDAs must include that employees are not prohibited from “speaking with law enforcement, the Equal Employment Opportunity Commission, the state Division of Human Rights, a local commission on human rights, or an attorney retained by the employee or potential employee.”

As New York State and New York City have strengthened their stances on sexual harassment and discrimination, New York employers must remain vigilant and stay abreast of all of the changes in the law and adapt accordingly.  If NDAs do not abide by the above requirements, they will not be enforceable.

Hogan Lovells’ Employment team is experienced, well versed, and apt to advise on any issue of New York employment law, especially those regarding discrimination and harassment.

Following in the wake of the #MeToo movement, two new bills adopted by the California Legislature will expand the temporal scope of state-law harassment, discrimination, retaliation, and sexual assault claims. The first of these two, Assembly Bill 9 (“AB 9”), increases the time limit for individuals to file a discrimination, harassment, or retaliation claim with the California Department of Fair Employment and Housing. Filing such a claim is an administrative prerequisite to suing under California’s Fair Employment and Housing Act. AB 9 will raise the current one-year time limit on filing this administrative claim to three-years, extending the practical statute of limitations for filing a lawsuit under FEHA to four years (e.g. three years to file the administrative claim, and then one year thereafter to file a civil lawsuit).

The second bill, AB 1510, amends last year’s Assembly Bill 1619 (“AB 1619”). AB 1619 expanded the statute of limitations for adult victims of sexual assault to the greater of ten years after the last incident of assault or three years after discovery of the assault. However, AB 1619 only acted prospectively, applying only to claims brought on or after January 1, 2019. Assembly Bill 1510 (“AB 1510”) amends the scope of AB 1619 so that it revives certain, otherwise time-barred civil claims where those claims:

  • (1) Arise out of sexual assault or other inappropriate conduct by a physician at a student health center from Jan. 1, 1988 to Jan. 1, 2017;
  • (2) Seek damages of greater than $250,000; and
  • (3) Would otherwise have been time barred prior to Jan. 1, 2020.

Taken together, these two bills have been framed as part of California’s continued response to the #MeToo movement. However, as Hogan Lovells attorney Tao Leung writes in a recent article, the true impact of these bills, if signed by Gov. Newsom, may be much greater than advertised. The employment lawyers at Hogan Lovells are experienced in helping employers navigate the changing landscape of labor and employment law. Anyone with questions is encouraged to reach out to the authors of this article, or the attorney with whom they normally work at Hogan Lovells.

On September 20, 2019 the National Labor Relations Board (“NLRB” or “Board”) proposed a rule which, if approved, would exclude graduate and undergraduate student workers, who perform services in connection with their studies, from the definition of “employee” under the National Labor Relations Act (“NLRA”), thus precluding them from forming unions or engaging in collective bargaining activities at private colleges and universities.

The proposed Board rule comes amid a seesaw of NLRB decisions on the issue of student workers. In a 2016 Board decision addressing whether student assistants at Columbia University are employees, the Board held that such student workers were employees with collective bargaining rights under the NLRA. Applying the common-law agency doctrine, the Board explained that because the student assistants “perform work, at the direction of the university, for which they are compensated,” they are “employees” under Section 2(3) of the NLRA, notwithstanding their additional educational relationship with Columbia University. In response, graduate students at other institutions, such as New York University, American University, and Brandeis University, organized and negotiated collective bargaining agreements with their universities. The 2016 Columbia University decision reversed a 2004 Brown University decision, whereby the Board held that graduate assistants have a primarily academic, not economic, relationship with their school, and therefore they should not qualify as statutory employees.

The recently proposed Board rule has taken a similar approach to the Brown University decision, thereby holding students who perform services at a private college or university related to their studies to be primarily students with a primarily educational relationship with their university, and therefore not statutory employees. The Board has explained that its proposed standard is more consistent with the purposes and policies of the NLRA, which governs economic relationships, as opposed to those “primarily educational in nature.”

Public comments are invited on all aspects of the proposed rule and should be submitted by November 22, 2019. The NLRB has also solicited public comments on whether students who work at a private college or university in a capacity unrelated to their studies qualify as an “employee” under the NLRA. If adopted in its proposed form, the rule would undercut a growing number of student unionization efforts. Though it would not impact existing contracts between student worker unions and universities, it would nevertheless give private institutions a clear basis to refuse to recognize student unions.

For more information on the proposed rule or developments at the National Labor Relations Board, please contact an author of this blog post or the Hogan Lovells lawyer with whom you work.

Employers with employees—and, in some cases, 1099-MISC contractors —in Massachusetts have obligations starting next week under Massachusetts’ new Paid Family and Medical Leave Law (“MPFML”), which will entitle most Massachusetts workers to paid family and medical leave. Although benefits will not be available until 2021, employers must do two things now: provide notice to workers of their rights and obligations under MPFML by September 30, 2019, and implement required payroll deductions starting October 1, 2019.

A newly created state agency, the Department of Family and Medical Leave (the “Department”), will administer the paid leave program. The new law also creates the Family and Employment Security Trust Fund (the “Trust Fund”), from which paid leave benefits will be paid to eligible individuals who apply for them. The Trust Fund will be funded by employer and employee tax contributions. Below is a quick recap of the law’s key provisions and important upcoming deadlines.

Covered Employers: The law applies to virtually all private Massachusetts employers, regardless of their size or number of employees. Out-of-state employers with even one Massachusetts worker are generally covered.

Covered Workers: All W-2 employees (full-time, part-time and seasonal workers) who meet the financial eligibility requirements for unemployment benefits under Massachusetts law are covered by MPFML and must be counted for purposes of tax contributions. In other words, if you are required to report the employee’s wages to the Massachusetts Department of Unemployment Assistance (“DUA”), the employee is covered.

In addition, 1099-MISC contractors are covered if they constitute more than 50% of the employer’s total workforce and they:

  1. perform services as an individual entity;
  2. live in Massachusetts;
  3. perform the services in Massachusetts; and,
  4. do NOT qualify as an independent contractor under Massachusetts’ unemployment statute, M.G.L. c. 151A—meaning that the individual must perform services within the usual course of the employer’s business.


Qualifying Uses and Maximum Benefits per Benefit Year

Benefits will be available to eligible individuals for the following purposes:

  • to bond with a child within the first 12 months of the child’s birth or placement through adoption or foster care—12 weeks paid leave, which may be taken intermittently or on a reduced schedule upon mutual agreement of the employer and covered individual;
  • because of a qualifying exigency arising out of the fact that a family member is on or has been called to active duty in the Armed Forces—12 weeks, which may be taken intermittently or on a reduced schedule;
  • to care for a family member who is a covered service member (as defined by the law) with a serious health condition—26 weeks, which may be taken intermittently or on reduced schedule if medically necessary;
  • medical leave for an employee’s own serious health condition—20 weeks, which may be taken intermittently or on a reduced schedule if medically necessary; and
  • to care for a family member (as defined by the law) with a serious health condition—12 weeks, which may be taken intermittently or on a reduced schedule if medically necessary.

Benefits will be available beginning January 1, 2021, except that benefits to care for a family member with a serious health condition become available July 1, 2021. Eligible individuals may take up to 26 total weeks of combined paid family and medical leave per benefit year.  Employees (but not contractors) who take paid family or medical leave are generally entitled to reinstatement to the same or an equivalent position upon their return from leave. Benefits will be based on the worker’s average weekly earnings, subject to a maximum weekly benefit amount of $850 per week for 2021 (this amount will be adjusted annually based on the state average weekly wage).

Tax Contributions: Paid leave will be funded by a .75% payroll tax contribution (to be adjusted annually), which will be paid into the Trust Fund. Employers with 25 or more employees in Massachusetts will be required to pay the full contribution but may deduct from employees’ wages up to 100% of the contribution for family leave and up to 40% of the contribution for medical leave. Employers with fewer than 25 employees in Massachusetts will not be required to pay the employer portion of the contribution but will still need to deduct the employee portion from employees’ wages and remit it to the Trust Fund.

Withholding is required beginning October 1, 2019. More information about calculating the required contribution is available on the Department’s website at Employers must remit contributions quarterly through the Massachusetts Department of Revenue’s MassTaxConnect system. Contributions for the October-December 2019 quarter are due January 31, 2020.

Required Notice to Workers: Employers are required to display a workplace poster about MPFML, which is available here. Additionally, on or before September 30, 2019, employers must provide written notice to their Massachusetts workforce about certain aspects of MPFML, together with an opportunity to acknowledge or decline to acknowledge receipt. Sample notices are available from the Department here. Note that there are separate notices for W-2 employees and 1099-MISC contractors, as well as for employers with 25 or more covered individuals and those with fewer than 25 covered individuals.

Exemptions: Employers with private paid benefits plans may apply for an exemption from MPFML if their plans provide benefits and protections equal to or greater than those provided under the statute. Private plan exemptions for the first quarter of contributions are due December 20, 2019. See the Department’s website for additional details.

On September 24, 2019, the U.S. Department of Labor (DOL) announced a final rule that, effective January 1, 2020, will increase the salary threshold, by approximately 50%, that so-called “white collar” employees must be paid in order to be classified as “exempt” under the Fair Labor Standards Act (FLSA). Employees who do not meet the new heightened salary threshold of $684 per week (which equates to $35,568 per year) will be considered non-exempt and thus eligible for overtime pay. The DOL estimates that this change will impact approximately 1.3 million workers. Employers should act now to ensure that they will be in compliance with the new rule by January 1, 2020.

To be classified as an exempt employee (and thus not eligible for overtime) under the FLSA’s “white collar” executive, administrative, or professional exemptions, an employee must meet three requirements: (1) satisfy a “duties test” (i.e., have and perform specific white collar job duties); (2) be paid on a salary or fee basis (as opposed to an hourly basis); and (3) be paid at least $455 per week, which equates to $23,660 per year. If an employee is “highly compensated,” meaning that he or she earns at least $100,000 in total annual compensation, the employee may also be considered exempt under a relaxed version of the duties test. A highly controversial 2016 Obama-era rule attempted to double the existing salary threshold for white-collar workers (to $913 per week) and would have increased the annual compensation threshold to $134,004 for highly compensated individuals. That rule was enjoined by a Texas federal court, leaving 2004 thresholds in place. In the meantime, the DOL undertook to issue an overtime rule that would increase the salary threshold requirement, but not as high as under the 2016 rule. The final rule, announced September 24, 2019, is the result of that process and formally rescinds the enjoined 2016 rule.

The DOL’s new rule will implement several significant changes to current FLSA overtime requirements, including the following:

  1. White Collar Salary Threshold: The salary threshold required to meet the white collar exemption will increase from its current level of $455 per week (which equates to $23,660 per year) to $684 per week (which equates to $35,568 per year). As a result, employees who were previously exempt but earn less than $684 per week will now be eligible for overtime pay, unless their employers take action to increase their pay above the $684 per week threshold.
  2. Highly Compensated Employees: Highly compensated employees will be required to earn a total annual compensation of at least $107,432 per year ($684 of which must be paid weekly on a salary or fee basis) to qualify for exemptions. An employee who earns less than such amount will not be able to take advantage of the relaxed duties test for highly compensated employees.
  3. Bonuses and Commissions: Employers will be allowed to count non-discretionary bonuses, incentives, and commissions as up to 10% of the salary threshold of $684 per week, so long as such bonuses are paid at least annually.

The DOL intends to propose updates to these salary thresholds every four years. In contrast to the 2016 rule, the updates will not be automatic and will require notice and public comment periods. Further, the new rule makes no changes to the duties test for executive, administrative, and professional employees. Finally, the rule sets lower salary thresholds for employees in U.S. territories and the motion picture producing industry.

The rule will take effect on January 1, 2020. This leaves only a few months for employers to achieve compliance with the rule, by either treating employees who earn less than the salary threshold as non-exempt (and thus overtime eligible), or by boosting such employees’ pay to maintain their exempt status. Employers should consider taking the following steps:

  • Identify all employees impacted by the rule (i.e., employees currently classified as exempt under a white collar exemption who earn between $455 per week (or $23,660 per year) and $684 per week (or $35,568 per year)).
  • Determine the proper business actions to take with respect to each affected employee, such as whether to reclassify the employee as non-exempt, raise the employee’s salary to maintain exempt status, consider another FLSA exemption that does not require the employee to meet the new salary thresholds (such as the hourly computer professional exemption), or conduct a restructuring or a reassignment of work.
  • Ensure timekeeping and payroll systems are updated to reflect new employee classifications.
  • Consider whether to allow or adjust flexible or remote work schedules for exempt employees who become non-exempt, including whether to allow such employees to maintain use of a company cell phone or remote e-mail/network access.
  • Consider whether to adjust fringe benefits to take into account increased payroll costs the new rule will potentially incur.
  • If adjusting salaries or benefits, conducting layoffs, or taking related action as a result of the rule, ensure that all actions are nondiscriminatory and otherwise comply with applicable legal requirements, including providing WARN Act notices and complying with the release requirements under the Age Discrimination in Employment Act.
  • Consider conducting a comprehensive wage and hour audit to correct any current FLSA misclassification issues, including those not related to the FLSA salary thresholds. As noted above, the salary threshold is only one of multiple requirements needed for an employee to qualify as exempt under a white collar exemption. If an employer has potential wage and hour vulnerabilities—such as employees who may not satisfy the duties test—now may be a good time to conduct an audit and consider whether to make reclassifications of those employees as well.
  • Train newly non-exempt employees on timekeeping processes and their obligation to track their hours worked.

Employers should also be aware that their obligations under state wage and hour laws may differ from the FLSA, and should therefore ensure that their payroll policies and practices are compliant with state laws as well. For more information about the new rule, its expected impacts, or any other legal issues in the workplace, contact the authors of this article or the Hogan Lovells lawyer with whom you work.

On September 18, 2019, California Governor Gavin Newsom signed into law a bill that attempts to settle some of the ambiguity that remained surrounding the California Supreme Court’s decision in Dynamex and its “ABC Test.” While the new bill may have resolved some outstanding questions, the uncertainty is far from over.

As we previously covered, the California Supreme Court’s Dynamex decision in April 2018 largely displaced the Borello test with its lengthy list of factors, and instead decided that workers are presumed to be employees rather than independent contractors unless they can show: (A) the worker is free from control of the hiring entity (in contract and fact); (B) the worker is performing work outside the usual course of the hiring entity’s business; and (C) the worker is customarily engaged in an established trade.

The employee presumption, coupled with the difficult-to-pass test, has largely been viewed as a threat to the

so-called “gig” economy, and the new law, passed as AB 5 and codified as Labor Code Section 2750.3, does not resolve that uncertainty. Instead, it codifies the ABC Test for most workers, while at the same time creating numerous exceptions.

What We Do Know

To be sure, the new law does provide some clarity as to the scope of the ABC Test.

First, it syncs up the definitions under the Labor Code, wage orders, and unemployment insurance code – ending the debate as to whether courts would have needed to apply different tests for determining whether the same individual would be considered an employee – the ABC Test for claims under the wage orders (which set things like minimum wages and overtime) and claims under the Labor Code (which, for example, requires reimbursement of business expenses).

Second, it creates some exemptions from the ABC Test that allows some occupations to continue to be governed by the multi-factor Borello test, but these exemptions are narrow/industry-specific, and may require the hiring entity to satisfy separate multi-factor tests just to qualify for the exemption (see examples below). If an exemption is applicable, such exemptions apply retroactively to existing claims.

Unfortunately for some employers though, the Legislature resolved another ambiguity (previously covered here) when it declared with the passing of AB 5 that the ABC Test applies retroactively to those who don’t qualify for exemptions.

What Still Remains to Be Seen

Despite the additional clarity that the Legislature provided on some issues, significant ambiguity remains. The gig-economy companies have reportedly made plans – and contributed significant amounts of money – to back a ballot initiative that would provide a way to keep app-based drivers as independent contractors.

And even if voters do not change the law, the new Section 2750.3 will require companies to make fact-intensive inquiries to determine which test or exemption applies. By way of example, the classification of certain licensed occupations, such as physicians, lawyers, dentists, licensed engineers, and others will still be governed by the Borello test. Individuals that perform services via a contract for “professional services,” such as marketing professionals, HR administrators, photojournalists, etc. will be subject to the Borello test only if the hiring entity is able to demonstrate six separate factors regarding the contractor’s independence (i.e. maintains a business location separate from hiring entity, ability to set or negotiate their own rates, etc.) And in the case of a business-to-business contracting relationship, the use of the Borello test is proper if the contracting entity demonstrates that twelve different criteria are met (i.e. the contract is in writing, the business service provider provides its own equipment, the business service provider is free from the control and direction of the contracting business, etc.)

In short, while AB 5 was presumably intended to clarify the scope and applicability of the Dynamex holding by whittling down the number of separate tests used to evaluate the proper classification of contractors, it is clear that AB 5 has actually resulted in creating even more tests just to determine whether the ABC test or the Borello standard should apply. And irrespective of the complexity of the new law, it is indisputable that the law is a significant blow to any company that utilizes independent contractors in California.

The new law can be found here.

For more information about the classification of independent contractors, or any other legal issues in the workplace, contact the authors of this article or the Hogan Lovells lawyer with whom you work.

Every employer in New York State should keep an eye on the October 9th, 2019 deadline for employers to adopt and provide mandatory anti-harassment training for New York employees. This training is required for any employee who works even a portion of their time in New York State, including those based in a state other than New York. Moreover, the training is required for all employees, including exempt, non-exempt, part-time, and temporary employees.

In order to comply with the State’s training requirements, employers must either:

Employers in New York City should also keep in mind the additional training required for the City’s Stop Sexual Harassment in NYC Act which is to be completed by December 31, 2019. The requirements under the City law are similar to State law. However, the laws are not totally coextensive and employers should ensure that they comply with both. Therefore, employers may want to consider hosting a training which satisfies both laws.

The experienced employment lawyers at Hogan Lovells provide anti-harassment training which complies with both State and City law. For any questions, or to schedule a training, please contact the authors of this article or the lawyer with whom you normally work at Hogan Lovells.

On August 9, 2019, the D.C. Office of Employment Services (DOES) took another step toward full implementation of D.C.’s Universal Paid Leave Amendment Act of 2016 (UPLA) by issuing proposed benefits regulations. In a recent post, we discussed generally the paid leave benefits eligible employees can receive from DOES under UPLA starting July 1, 2020 for new child bonding (8 weeks), to care for a family member with a serious health condition (6 weeks), or for the employee’s own serious health condition (2 weeks), up to a maximum of 8 weeks per year, and we explained the employer payroll tax collection process currently underway to fund the new program. The proposed benefits regulations address a number of benefits administration issues, including how employees will file claims for benefits, how employers will be notified of claims, how DOES will calculate benefits amounts, and the process for appealing claims denials.

In this post, we focus on one topic of particular interest to employers: what the proposed benefits regulations say about the interaction between UPLA benefits and employers’ own paid leave policies when they overlap. The proposed regulations make clear that employers are free to amend their own leave policies to account for UPLA benefits. However, the devil is in the details, and tricky coordination issues are left unresolved by the proposed rules.

Here are the key takeaways:

Employer leave policies do not impact the amount of UPLA benefits. DOES will not consider the availability of employer-provided paid leave benefits when calculating benefits available under UPLA. This leaves open the possibility that employees will be entitled to paid leave benefits from both the employer and DOES for the same time period. The DOES benefit will be calculated based on a formula that considers the employee’s average weekly wages from 4 of the last 5 quarters preceding the leave (the quarter with the lowest total earnings is excluded). The benefit amount will be a percentage of the employee’s average weekly wages, up to 90% for lower earning employees and a lower percentage for higher earning employees. For 2020, the DOES benefit may not exceed $1,000 a week.

Employers are permitted to coordinate their paid leave benefits with UPLA benefits, but the regulations provide no guidance on how to coordinate. The proposed regulations allow employers to coordinate their own paid leave benefits with UPLA benefits and state that employers may amend their existing or future policies at any time as they see fit. However, the proposed rules provide no guidance on how coordination is to be achieved. Coordination is generally understood to include rules to avoid duplication of benefits, including rules to avoid more than full pay (or some other level of intended pay) in a given week through means such as offsets, deductions, or sequencing.

Some of the proposed regulations will facilitate coordination of benefits. Except in emergencies, the proposed regulations require the employee to notify the employer in advance, in writing, of the need to use UPLA paid leave benefits, the type of leave benefits being requested, and their anticipated duration. DOES will notify the employer within 3 business days that a claim has been filed (and will request information from the employer). DOES is also required to inform the employer when a claim is approved, the start date, expected end date, whether the leave benefits will be continuous or intermittent, and if intermittent, the scheduled dates. DOES will not disclose to employers the amount of UPLA benefits the employee is receiving, but employers are permitted to require employees to disclose the amount as a condition of receiving employer paid leave benefits.

Some of the proposed rules may create practical difficulties for smooth coordination. DOES benefits may not begin for some time after a qualifying event, whereas employer paid leave might start sooner. Delays in DOES benefits will occur because, under the proposed regulations, employees may not submit UPLA claims until after the qualifying leave event, even when the need for leave is foreseeable, and DOES will not award benefits for leave taken before a claim is filed (except in exigent circumstances such as physical or mental incapacity). (Note that there is also a 7 day waiting period after the qualifying event during which no UPLA benefits apply). In addition, it will take DOES time to process claims. The proposed regulations state that initial claim determinations will be made within 10 business days, although this time period will be extended if additional information is needed to make the determination, and benefits payments will not begin until 10 business days after a claim is approved. Furthermore, if DOES denies a claim and the employee succeeds in getting the denial reversed on appeal, the employee may receive a DOES award after employer leave benefits have already been provided.

Employer policies may not interfere with employees’ UPLA rights. In coordinating employer and UPLA benefits, employers should bear in mind that the UPLA prohibits interference with an employee’s exercise or attempted exercise of rights to benefits provided in the Act.

The proposed benefits regulations are open for comments until September 9, 2019. It is possible that the final regulations will address coordination further. DOES is also continuing to offer paid leave webinars, during which additional guidance may be provided. See the Office of Paid Family Leave website for further details. Employers should begin reviewing their leave policies to determine whether to make revisions before UPLA benefits become available on July 1, 2020.

The debate about whether the Dynamex decision applies retroactively is alive again thanks to a reverse course by the Ninth Circuit Court of Appeals.  As we previously discussed in greater detail here, in April 2018, the California Supreme Court issued a groundbreaking decision in Dynamex that workers would be presumed employees unless they satisfied each prong of the dubbed “ABC test.”  One of the unsettled questions that remained following the Dynamex decision was whether the “ABC test” would apply only prospectively, or retroactively as well.  For almost a year after Dynamex and, as we previously covered, the Ninth Circuit seemingly laid this issue to rest in May 2019 when it held that Dynamex’s “ABC test” does indeed apply retroactively in its Vazquez v. Jan-Pro Franchising International, Inc. decision.

Less than three months after Vazquez, however, the Ninth Circuit appears to have done an about-face.  The Ninth Circuit withdrew its Vazquez opinion on July 22, 2019 and indicated that the California Supreme Court would be the final arbiter of the retroactivity issue of Dynamex’s “ABC test.”  Whether the Ninth Circuit’s latest move will serve as a precursor of things to come, or merely a brief respite for the inevitable, remains to be seen.  For now, employers and workers alike must again wait for the courts to resolve—for the final time—whether the Dynamex decision applies retroactively.

For more information about the classification of independent contractors, or any other legal issues in the workplace, contact the authors of this article or the Hogan Lovells lawyer with whom you work.