Categories
17. Employee Status

Wiggers v Olsen Seawall Construction Co – 17.08

Wiggers v Olsen Seawall Construction Co
Digest no. 17.08

Section 42

Cite as: Wiggers v Olsen Seawall Construction Co, unpublished opinion of the Muskegon Circuit Court, issued April 21, 1980 (No. 79-13578 AE).

Appeal pending: No
Claimant: David Wiggers
Employer: Olsen Seawall Construction Co.
Docket no.: L77 6884 1537
Date of decision: April 21, 1980

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CIRCUIT COURT HOLDING: Where a construction laborer is hired and paid by a subcontractor, and the tools and material are furnished by the general contractor, the laborer is not an employee of the general contractor.

FACTS: The Referee stated: “[T]he partners hired one Tom Nelson as a subcontractor to provide labor for the construction work. He hired the labor for the jobs, kept the time, and each Friday he paid the men in cash.” The claimant was one of the laborers.

DECISION: The claimant was not an employee of Olsen Seawall Construction Co.

RATIONALE: “Testimony is that the workers, after 1974, were completely hired and fired by Mr. Nelson and under his direction for the entire time. The Olsen Seawall Company was still the one the cottage owner dealt with and Olsen did indicate where to put the seawall and how long it was to be. There is testimony that on occasion the per foot costs were changed, and these were discussed with Mr. Nelson, which would be consistent with an independent contractor since if he is to obtain the labor cost as his portion of the contract then he would be consulted, and if he were paid on an hourly basis there would be no basis for consulting with him. It was testified that this was varied when the jobs were difficult or easy. This is also consistent with the independent contractor. The fact that the tools are owned by the Olsens and the fact that they paid for the lumber and additional nuts and bolts which were included in the bid and the pricing method, is not inconsistent with the concept of the independent contractor; and the fact that one of the Olsens would occasionally assist when he was present at the work-site, is not inconsistent with an independent contractor relationship.”

Digest Author: Board of Review (original digest here)
Digest Updated: 11/90

Categories
17. Employee Status

City of Sturgis v Messner – 17.07

City of Sturgis v Messner
Digest no. 17.07

Section 42

Cite as: City of Sturgis v Messner, unpublished opinion of the St. Joseph Circuit Court, issued February 27, 1979 (No. 78-590).

Appeal pending: No
Claimant: Ann Messner
Employer: City of Sturgis
Docket no.: L77 7267 1531
Date of decision: February 27, 1979

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CIRCUIT COURT HOLDING: Where a nurse-anesthetist declines employee status, signs a contract to provide services at a hospital as an independent contractor, and retains the right to perform services elsewhere, the doctrine of “economic reality” does not apply, and the claimant is an independent contractor.

FACTS: Ann Messner was a full-time nurse-anesthetist at Sturgis Hospital. A written contract specified her status as “independent contractor”. She declined status as an employee. The hospital purchased her supplies and scheduled her hours on duty. She received 25 percent of patient billings. Ms. Messner was required to remain on call and to maintain malpractice insurance.

DECISION: The claimant was an independent contractor, and not an employee.

RATIONALE: “[T]his Court finds that it is clear from all of the testimony and evidence that claimant Messner was at all times an independent contractor; that she was not an employee; that she had a free choice of whether she would be an employee or an independent contractor and she, after consulting with independent legal counsel, opted to be an independent contractor instead of choosing to be an employee; that over and aside from her acknowledging that she was and her choosing to be an independent contractor above her written signature, all of the evidence establishes that is exactly what she was, along with another nurse anesthetist named Thaddeus Juszckak; that she had the right to perform her services at other hospitals and was not restricted to the Sturgis hospital; that in the opinion of this Court this case is not at all close on the facts as to whether she was an independent contractor or an employee.”

“In the opinion of this Court, the ‘economic reality’ doctrine has no application to personnel of this type, or to the facts in this case.”

Digest Author: Board of Review (original digest here)
Digest Updated:
11/90

Categories
17. Employee Status

Edward C Levy Co v MESC – 17.03

Edward C Levy Co v MESC
Digest no. 17.03

Section 42

Cite as: Edward C Levy Co v MESC, unpublished opinion of the Court of Appeals of Michigan, issued January 22, 1979 (Docket No. 78-1550).

Appeal pending: No
Claimant: Willie Dubose
Employer: Edward C. Levy Company
Docket no.: B75 12933 52171
Date of decision: January 22, 1979

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COURT OF APPEALS HOLDING: Where a truck owner-operator works almost exclusively for one company the claimant is an employee, even where the claimant considered himself or herself an independent contractor.

FACTS: The claimant, a truck owner-operator, considered himself an independent contractor. He worked for the Edward C. Levy Co. from 1962 to 1974. The claimant only performed services for other companies when Levy had no work for him.

DECISION: The claimant was an employee, and not an independent contractor.

RATIONALE: “There is little doubt that Mr. Dubose considered himself an independent contractor. However, his belief as to his status is not determinative. The Michigan Employment Security Act defines an employee, in part, as:

‘ … [A]n individual who by lease, contract, or arrangement places at the disposal of a person, firm, or corporation a piece of motor vehicle equipment and under a contract of hire, which provides for the individual’s control and direction, is engaged by the person, firm, or corporation to operate the motor vehicle equipment shall be deemed to be employment subject to this Act.’ MCL 421.42; MSA 17.545. Mr. Dubose certainly placed his trucks at plaintiff’s disposal and then operated them under the direction and control of plaintiff. It is true that plaintiff did not exercise direct day-to-day control over Mr. Dubose’s operation, but it did control the overall direction of Mr. Dubose’s employment situation.”

Digest Author: Board of Review (original digest here)
Digest Updated:
11/90

Categories
20. Miscellaneous

Askew v Macomber – 20.05

Askew v Macomber
Digest no. 20.05

Section 42

Cite as: Askew v Macomber, 398 Mich 212 (1976).

Appeal pending: No
Claimant: Carrie Askew
Employer: Alicia Macomber
Docket no.: N/A (This case arose under the Workers’ Compensation Act)
Date of decision: December 7, 1976

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SUPREME COURT HOLDING: The test of whether a person or business is liable for workers’ compensation benefits as the employer of a claimant is not a matter of terminology, oral or written, but of the realities of the work performed; control of the claimant is a factor, as is payment of wages, hiring and firing, and the responsibility for the maintenance of discipline, but the test of economic reality views these elements as a whole, assigning primacy to no single one.

FACTS: Carrie Askew claimed worker’s compensation benefits against defendants M. Alicia Macomber, the Second National Bank of Saginaw, and Michigan Mutual Liability Company. Mrs. Macomber, because of her advanced age, had entered into an agency agreement with the bank for the management of her property which authorized the bank to pay for Mrs. Macomber’s care. The bank hired the plaintiff as a practical nurse for Mrs. Macomber and the plaintiff was injured in the course of that employment.

DECISION: Alicia Macomber, not the bank, was the employer of Carrie Askew.

RATIONALE: The bank was operating pursuant to an express agency agreement. The employment of nurses was not an integral part of the bank’s business. The bank was not operating as a labor broker. Although the bank drafted the check for Carrie Askew’s wages, the funds came from the Macomber estate, a separate account. Although the bank discussed wages and hours with Carrie Askew and arranged the hiring of her for Mrs. Macomber, it took no part in the day-to-day control or supervision of Ms. Askew’s duties. There was no evidence of any intent by the bank to supervise or discipline Ms. Askew. The bank’s actions on behalf of Ms. Macomber were those of an agent on behalf of a principal.

Digest Author:  Board of Review (original digest here)
Digest Updated: 7/99

Categories
20. Miscellaneous

McKissic v Bodine – 20.04

McKissic v Bodine
Digest no. 20.04

Section 42

Cite as: McKissic v Bodine, 42 Mich App 203 (1972); lv den 388 Mich 780 (1972).

Appeal pending: No
Claimant: John S. McKissic
Employer: Harold Bodine
Docket no.: N/A (This case arose under the Worker’s Comp Act.)
Date of decision: July 26, 1972

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COURT OF APPEALS HOLDING: The test to determine whether an employee-employer relationship exists for purposes of the Worker’s Compensation Act is the “economic reality test”, and the factors used to apply the test are whether: (1) the employer will incur liability if the relationship terminates at will; (2) the work performed is an integral part of the employer’s business; (3) the employee primarily depends upon the wages for living expenses; (4) the employee furnishes equipment and material; (5) the employee holds himself out to the public as able to perform certain tasks; (6) the work involved is customarily performed by an independent contractor. Along with (7) the factors of control, payment of wages, maintenance of discipline, and the right to engage or discharge employees; and (8) weighing those factors which will most favorably effectuate the purposes of the Act.

FACTS: Claimant worked full-time at a Fisher Body plant. During the period in issue he was off work recovering from an injury. He advertised as a handy man and painted a sign “McKissic Contracting” on his truck. He furnished his own materials, engaged his own workers and worked on his own schedule. He did repairs and general maintenance and while doing such work for Bodine claimant fell and injured himself.

DECISION: Claimant was primarily employed by Fisher Body, and his relationship to Bodine was one of an independent contractor.

RATIONALE: “The plaintiff was primarily employed by another. The doing of odd jobs was a method of securing extra cash for his own enjoyment. He furnished his own tools. He worked for Bodine only when he was available. He contracted each job for a given price, and held himself out to the public as a handyman…. If he desired protection while acting as an independent contractor, he could have made arrangements for accident insurance….”

Digest Author: Board of Review (original digest here)
Digest Updated: 12/91

Categories
17. Employee Status

Foster v MESC – 17.09

Foster v MESC
Digest no. 17.09

Section 42

Cite as: Foster v MESC, 15 Mich App 96 (1968).

Appeal pending: No
Claimant: N/A
Employer: Vern Foster, d/b/a Livonia Yellow & Red Cab
Docket no.: L65 1247 1262
Date of decision: December 23, 1968

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COURT OF APPEALS HOLDING: The court remanded because the Appeal Board incorrectly applied the “right to control test” rather than the statutory test. Also, the Board failed to make an explicit finding of whether the drivers followed a pattern of operation established by the employer and were controlled by employer in the performance of their work.

FACTS: Employer owned 5-10 cabs. Anyone who had a City of Livonia taxi license could lease one of the cabs. Employer had no established work schedule for the drivers. Cabs were assigned to driver’s on a “first come first serve” basis. To get a cab a driver put down a $10 refundable deposit. Employer provided the cab in a clean condition with the motor oil checked and replaced if needed. An oral lease provided that the drivers would return the cab within 12 hours in the same condition. The cab could be returned at any time less than 12 hours. The driver retained 40% of the fares, and employer kept 60%. Employer did not have a dress code but did prohibit the use of alcohol. Livonia set the meter rates. The city required drivers to prepare and submit a trip sheet, detailing each run. Employer never gave the driver orders, nor did he “field check” them. Drivers could refuse runs.

DECISION: Remand for further evidence and new decision.

RATIONALE: “The critical question is whether the drivers whose wages it is sought to tax did conform to the employer’s pattern by leaving their radios on, taking radio calls and gravitating to the cab stands where they could obtain telephone calls….”

Digest Author: Board of Review (original digest here)
Digest Updated:
12/91

Categories
17. Employee Status

Industro-Motive Corp v Wilke – 17.11

Industro-Motive Corp v Wilke
Digest no. 17.11

Section 42

Cite as: Industro-Motive Corp v Wilke, 6 Mich App 708 (1967).

Appeal pending: No
Claimant: Carroll F. Wilke
Employer: Industro-Motive Corporation
Docket no.: B64 4965 R0 33382
Date of decision: May 23, 1967

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COURT OF APPEALS HOLDING: The economic reality test is to be used in unemployment compensation cases dealing with whether a person is an employee or independent contractor.

FACTS: Claimant was a designer of model automobiles. Claimant and the employer entered into a written agreement. Under the agreement each project was to be completed within 60 days of commencement. Claimant was to be paid a salary of $150 weekly plus a royalty of 1 cent for each model sold. Claimant worked in his basement, used his own tools but was reimbursed by the employer for materials. The contract could be terminated with 90 days written notice from either party. When claimant did not complete a project on schedule the employer stopped paying him and the claimant applied for unemployment benefits.

DECISION: Claimant was an employee and the remuneration he received was wages under the Employment Security Act.

RATIONALE: “By adoption of Justice Talbot Smith’s dissent in Powell v Employment Security Commission, 345 Mich 455, 462 (1956) (see Tata v Muskovitz, 354 Mich 695 (1959), and Goodchild v Erickson, 375 Mich 289 (1965), our Supreme Court has abrogated the use of the common law definition of “control” in interpreting social legislation, which we hold includes employment security legislation as well as workmen’s compensation legislation. Control in the sense of right to control (see majority opinion in Powell, supra) is only one of many factors to be considered. Now ‘The test employed is one of economic reality. It looks at the task performed, whether or not it is part of a larger common task, ‘a contribution to the accomplishment of a common objective’. (citing authority) The test is far from the common-law test of control, since ‘the act concerns itself with the correction of economic evils through remedies which were unknown at the common law.'”

Digest Author: Board of Review (original digest here)
Digest Updated:
12/91

Categories
17. Employee Status

Nordman v Calhoun – 17.10

Nordman v Calhoun
Digest no. 17.10

Section 42

Cite as: Nordman v Calhoun, 332 Mich 460 (1952).

Appeal pending: No
Claimant: Ardath Calhoun
Employer: Charles E. Nordman d/b/a Top Notch Soda Bar
Docket no.: BO 2905 12445
Date of decision: March 6, 1952

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SUPREME COURT HOLDING: Mr. Date Scofield was an employee under the Section 42 definition of employment – service performed for remuneration or under an oral or written contract for hire.

FACTS: Mr. Scofield, a retired postal employee provided janitorial services to employer’s predecessor for $10/week. When the employer took over, Mr. Scofield continued performing the same duties at the same salary. Employer required him to finish his work by 10 a.m. when the business was open. He worked 6 days/week for approximately 1.5 hours each day.

Mr. Scofield also worked at a hardware store 2-3 times/year installing and removing screens and storm windows, and he also performed similar jobs for others. For such work he charged by the hour. Mr. Scofield could quit at any time. Employer laid him off in October, 1949.

DECISION: Mr. Scofield was an employee pursuant to Section 42. As a result of that finding, the employer was determined to be a liable employer under the then applicable criteria in the Act. Consequently the claimant, Ms. Calhoun, was able to pursue her claim for benefits against the employer.

RATIONALE: “The only issue in the case at bar is to determine whether Date Scofield was an employee or an independent contractor. In the case at bar Date Scofield was hired for an indefinite period and could have severed his employment at any time. Moreover, his employer could have discharged him at any time, with or without cause. The fact that the employer did not find it necessary to exercise any detailed supervision over the performance of the employee’s duties is not determinative of the employer-employee relationship, nor does the fact that Date Scofield was a part-time employee bring him within the exception found in the act. In view of the fact that the services performed by Date Scofield are undisputed, we hold as a matter of law that he was an employee… .”

Digest Author: Board of Review (original digest here)
Digest Updated: 
12/91