The next shot has been fired in the long-running misclassification dispute between plaintiff Raef Lawson and gig economy giant Grubhub, as the company filed its Answering Brief with the 9th Circuit Court of Appeals late last night. As regular readers of this blog know, Lawson and Grubhub squared off in the nation’s first-ever gig economy misclassification trial in late 2017, leading to a victory for Grubhub in February 2018. Things took a turn for the worse in April 2018 when the California Supreme Court dropped a bombshell and changed the misclassification standard with its infamous Dynamex decision, which ushered in the notorious ABC test, and Lawson’s attorneys quickly pounced and argued that he should now be declared the victor given the new standard. Lawson filed an appeal with the 9th Circuit Court of Appeals and filed his opening brief in November 2018. Now, it’s Grubhub’s turn.
Grubhub’s 71-page Answering Brief presents three main arguments to the court:
- You can ignore Dynamex, the company says, because the standard only applies to cases arising under California’s wage orders, and this present dispute revolves around an expense reimbursement claim.
- Even if you think Dynamex should apply to such claims, you shouldn’t apply it in this case because it would be unfair to hold us to this standard retroactively.
- Even if you apply Dynamex’s ABC test retroactively, we should still win because we can satisfy the test.