U.S. Court of Appeals for the Ninth Circuit (Photo: Jason Doiy/ALM)

Should the labor-friendly standard for when workers should be classified as employees laid out last year by the California Supreme Court apply retroactively?

Turns out the U.S. Court of Appeals for the Ninth Circuit thinks that's a question the California Supreme Court itself should decide.

A Ninth Circuit panel on Monday asked California's high court to weigh in on whether its Dynamex Operations West v. Superior Court decision from last April applies in a case brought by janitorial workers pursuing claims against Jan-Pro International Franchising Inc. The janitors claim they were misclassified as independent contractors and, therefore, underpaid.

The panel had previously held in May that “the strong presumption of retroactivity” weighed in favor of finding that the so-called ABC test outlined in Dynamex for when workers are employees applied to past instances of worker misclassification.

But Jan-Pro's lawyer, including  Jeffrey Rosin of O'Hagan Meyer in Boston and lawyers from Gibson, Dunn & Crutcher who joined the company's appellate team after the initial panel ruling, persuaded the Ninth Circuit on Monday to grant the company's motion for a panel rehearing and to withdraw the prior opinion. “A revised disposition and 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,” Monday's brief, two-paragraph order said.

“We're pleased that the Ninth Circuit recognized that this case presents important questions of law regarding application of the California Supreme Court's decision in Dynamex and that it intends to ask that court to weigh in,” said Rosin in an email Monday.

Shannon Liss-Riordan of Lichten & Liss-Riordan, who has represented California-based janitorial workers in their case against Jan-Pro for more than a decade, said in an email Monday that the panel decision was correctly decided, and the California Supreme Court has already rejected an attempt to revise Dynamex to say that it does not apply retroactively.

“So I look forward to the Supreme Court taking on this case and definitively putting this retroactivity question to rest,” Liss-Riordan said.