Michael S. Kun, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Los Angeles office, was quoted in Law360, in “A Year Later, Dynamex Still Has Employers Scratching Heads,” by Braden Campbell. (Read the full version – subscription required.)

Following is an excerpt:

More than a year after the California Supreme Court’s Dynamex ruling made it harder for Golden State businesses to classify workers as independent contractors, employers are still struggling to figure out exactly what the blockbuster decision means. …

Some observers forecast a flash flood of employment misclassification suits in the Dynamex decision’s wake, but those predictions haven’t come to fruition, Epstein Becker Green wage-and-hour practice co-chair Michael Kun said. Still, the Los Angeles-based attorney is hard-pressed to think of a time he’s gotten as many out-of-the-blue client calls about a single legal issue.

The chief question the ruling poses to employers that use contractors is whether to reclassify them as employees. It’s a tough one, in large part because it’s not clear now whether the ruling applies to claims that predate its issuance, Kun said. The Dynamex court did not say whether the decision applies to older claims, but may soon after the Ninth Circuit recently asked it to.

“If one were to assume that Dynamex applies retroactively, reclassifying workers as independent contractors now could actually be used as evidence that those workers had always been misclassified,” Kun said. He pointed to a footnote in a 2004 California Supreme Court ruling that suggested reclassifying workers without changing their duties is evidence of liability.

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