Employment Law Case Notes

• Citation: Vol. 33 No. 4
• Publication year: 2019
• Author: By Anthony J. Oncidi

Employment Law Case Notes

By Anthony J. Oncidi

Anthony J. Oncidi is a partner in and the Chair of the Labor and Employment Department of Proskauer Rose LLP in Los Angeles, where he exclusively represents employers and management in all areas of employment and labor law. His telephone number is (310) 284-5690 and his email address is aoncidi@proskauer.com. (Tony has authored this column without interruption for every issue of this publication since 1990.)

Strict Independent Contractor Test Applies Retroactively

Vazquez v. Jan-Pro Franchising Int'l, Inc., No. 17-16096, 2019 WL 1945001, 2019 U.S. App. LEXIS 13237 (9th Cir. May 2, 2019)

Last year, the California Supreme Court in Dynamex Ops. W. Inc. v. Superior Court, 4 Cal. 5th 903 (2018), adopted the so-called "ABC test" for determining whether a worker is an employee or independent contractor, and in so doing made it much more difficult for a hirer to classify a worker as an independent contractor. The ABC test requires the hirer to prove that the worker is: (A) free from the control and direction of the hirer; (B) performing work outside of the usual course of the hirer's business; and (C) customarily engaged in an independently established trade of the same nature as the work performed. In Vazquez, the Ninth Circuit held that Dynamex should be applied retroactively to hiring arrangements that existed prior to issuance of the Dynamex opinion, and applies in—and is not altered by—the franchise context.

California Employee Is Compelled to Litigate His Employment Claims in Indiana

Ryze Claim Solutions LLC v. Superior Court, 33 Cal. App. 5th 1066 (2019)

Jerome Nedd was employed by Ryze Claim Solutions in El Cerrito, California for almost three years before his employment was terminated, resulting in his filing claims against Ryze for wrongful termination and violation of the Fair Employment and Housing Act (FEHA) in Contra Costa County Superior Court. When Nedd was first employed, he executed an employment agreement with Ryze (an Indiana-based company), which contained a forum selection clause providing that Nedd would prosecute any claims he might have against Ryze in either Marion County or Hamilton County, Indiana or in federal court in the Southern District of Indiana. In response to Nedd's complaint, Ryze filed a motion to stay or dismiss the action based on the Indiana forum selection clause in the agreement. The trial court denied Ryze's motion, but the court of appeal issued a peremptory writ of mandate...