Gary McLaughlin Quoted in Daily Journal on Retroactive Question for Dynamex Decision

Daily Journal has quoted Akin Gump labor and employment partner Gary McLaughlin in the article “Circuit asks Supreme Court if Dynamex is retroactive,” which reports on a request by the U.S. Court of Appeals for the 9th Circuit to the California Supreme Court to decide whether the state’s new employee-reclassifying law applies retroactively. The pathway for the legislation, the article reports, was cleared by the state Supreme Court’s 2018 Dynamex decision, which made it more difficult to designate workers as independent contractors.

McLaughlin said it is not the first time the 9th Circuit has asked the California Supreme Court to handle critical matters of state law. What is surprising, though, he said, is that the appeals court first published, then retracted, an opinion certifying that the law was retroactive.

“I’ve seen a number of instances where the 9th Circuit certified a question to the California Supreme Court, but, in my experience, I can’t think of an example where they actually issued a decision and then changed their mind.”

McLaughlin said he believes the decision would be certified retroactively, but added that the exposure for so-called gig companies was particularly high, as some could see massive losses if they have to reclassify their majority contractor workforce once the law takes effect in January.