control test in Michigan

2014However, Michigan has “abandoned the control test as the exclusive criterion by which the existence of an employee-employer relationship, for the purposes of remedial social legislation, is determined.” Goodchild v Erickson, 375 Mich 289, 293 ; 134 NW2d 191 (1965) (emphasis added).

2014However, Michigan has “abandoned the control test as the exclusive criterion by which the existence of an employee-employer relationship, for the purposes of remedial social legislation, is determined.” Goodchild v Erickson, 375 Mich 289, 293 ; 134 NW2d 191 (1965) (emphasis added).

1995In Janik v Ford Motor Co, 180 Mich 557, 562 ; 147 NW 510 (1914), the Supreme Court defined the control test as follows: The test is whether in the particular service *469 which he is engaged or requested to perform he continues liable to the direction and control of his original master or becomes subject to that of the person to whom he is lent or hired, or who requests his services.

1995In Janik v Ford Motor Co, 180 Mich 557, 562 ; 147 NW 510 (1914), the Supreme Court defined the control test as follows: The test is whether in the particular service *469 which he is engaged or requested to perform he continues liable to the direction and control of his original master or becomes subject to that of the person to whom he is lent or hired, or who requests his services.

2018Pertinent considerations under the control test are “who controlled the work, the hours, the process, and the methods of the work involved.” Kidder v Miller-Davis Co, 455 Mich 25, 32 ; 564 NW2d 872 (1997).

2018Pertinent considerations under the control test are “who controlled the work, the hours, the process, and the methods of the work involved.” Kidder v Miller-Davis Co, 455 Mich 25, 32 ; 564 NW2d 872 (1997).

1997In Schulte v American Box Board Co, 358 Mich 21 ; 99 NW2d 367 (1959), Justice Smith defined more fully the parameters of the economic-reality test: The earlier cases tested this relationship through application of the “control” factor, originally a test for tortious liability, having its roots in the relationship of the apprentice to his master in early English industrial society.

1997In Schulte v American Box Board Co, 358 Mich 21 ; 99 NW2d 367 (1959), Justice Smith defined more fully the parameters of the economic-reality test: The earlier cases tested this relationship through application of the “control” factor, originally a test for tortious liability, having its roots in the relationship of the apprentice to his master in early English industrial society.

1980The economic reality test examines the following four factors: (1) control of a worker’s duties, (2) the payment of wages, (3) the right to hire and fire and the right to discipline, and (4) the performance of the duties as an integral part of the employer’s business towards the accomplishment of a common goal. *459 Askew v Macomber, 398 Mich 212, 217-218 ; 247 NW2d 288 (1976).

1978Askew, supra. A case decided under the control test was White v Bye, 342 Mich 654 ; 70 NW2d 780 (1955), a case which was factually very similar to the case at bar.

2019In People v Smith,35 we addressed “whether the trial courts erred so as to require reversal in allowing the examining physicians to testify that the complainants had been sexually assaulted.”36 34 People v Figgures, 451 Mich 390, 399 ; 547 NW2d 673 (1996). 35 People v Smith, 425 Mich 98 ; 387 NW2d 814 (1986). 36 Id. at 101 . 21 Citing MRE 704, we stated that “[i]t is . . . well-established that expert opinion testimony will not be excluded simply because it concerns the ultimate issue[.]”37 Yet, we acknowledged that an examining physician cannot give an opinion on whether a complainant had bee

2019In People v Smith,35 we addressed “whether the trial courts erred so as to require reversal in allowing the examining physicians to testify that the complainants had been sexually assaulted.”36 34 People v Figgures, 451 Mich 390, 399 ; 547 NW2d 673 (1996). 35 People v Smith, 425 Mich 98 ; 387 NW2d 814 (1986). 36 Id. at 101 . 21 Citing MRE 704, we stated that “[i]t is . . . well-established that expert opinion testimony will not be excluded simply because it concerns the ultimate issue[.]”37 Yet, we acknowledged that an examining physician cannot give an opinion on whether a complainant had bee

2019In People v Smith,35 we addressed “whether the trial courts erred so as to require reversal in allowing the examining physicians to testify that the complainants had been sexually assaulted.”36 34 People v Figgures, 451 Mich 390, 399 ; 547 NW2d 673 (1996). 35 People v Smith, 425 Mich 98 ; 387 NW2d 814 (1986). 36 Id. at 101 . 21 Citing MRE 704, we stated that “[i]t is . . . well-established that expert opinion testimony will not be excluded simply because it concerns the ultimate issue[.]”37 Yet, we acknowledged that an examining physician cannot give an opinion on whether a complainant had bee

2019In People v Smith,35 we addressed “whether the trial courts erred so as to require reversal in allowing the examining physicians to testify that the complainants had been sexually assaulted.”36 34 People v Figgures, 451 Mich 390, 399 ; 547 NW2d 673 (1996). 35 People v Smith, 425 Mich 98 ; 387 NW2d 814 (1986). 36 Id. at 101 . 21 Citing MRE 704, we stated that “[i]t is . . . well-established that expert opinion testimony will not be excluded simply because it concerns the ultimate issue[.]”37 Yet, we acknowledged that an examining physician cannot give an opinion on whether a complainant had bee

1998Hoffman v JDM Associates, Inc, 213 Mich App 466, 468-469 ; 540 NW2d 689 (1995); Kral v Patrico’s Transit Mixing Co, 181 Mich App 226, 230-232 ; 448 NW2d 790 (1989).

1998Hoffman v JDM Associates, Inc, 213 Mich App 466, 468-469 ; 540 NW2d 689 (1995); Kral v Patrico’s Transit Mixing Co, 181 Mich App 226, 230-232 ; 448 NW2d 790 (1989).

1989In The Hartford Ins Group v Mile High Drilling Co, 96 Mich App 455, 460 ; 292 NW2d 232 (1980), a panel of this Court concluded, on the basis of Nichol , that application of the control test was appropriate in that case because it involved a question of respondeat superior liability.

1989In The Hartford Ins Group v Mile High Drilling Co, 96 Mich App 455, 460 ; 292 NW2d 232 (1980), a panel of this Court concluded, on the basis of Nichol , that application of the control test was appropriate in that case because it involved a question of respondeat superior liability.

1985The Court said that, as compared to the control test, the economic reality test achieved "a freer and more realistic balancing of all the relevant factors in each case to determine which persons are properly denominated employees . . . [and] which persons should be properly denominated independent contractors.” 4 In Funk v General Motors Corp, 392 Mich 91 ; 220 NW2d 641 (1974), and Dagenhardt v Special Machine & Engineering, Inc, 418 Mich 520 ; 345 NW2d 164 (1984), this Court affirmed the general rule allowing an injured employee of a subcontractor to maintain a third-party action against the

1985The Court said that, as compared to the control test, the economic reality test achieved "a freer and more realistic balancing of all the relevant factors in each case to determine which persons are properly denominated employees . . . [and] which persons should be properly denominated independent contractors.” 4 In Funk v General Motors Corp, 392 Mich 91 ; 220 NW2d 641 (1974), and Dagenhardt v Special Machine & Engineering, Inc, 418 Mich 520 ; 345 NW2d 164 (1984), this Court affirmed the general rule allowing an injured employee of a subcontractor to maintain a third-party action against the

1985As our Court of Appeals aptly stated in McKissic v Bodine, 42 Mich App 203, 208 ; 201 NW2d 333 (1972), 'the problem with economic reality is that it is a conclusion, and it is not a test in the sense that there are any well-defined criteria upon which an objective determination can be based.’ ” Justice Talbot Smith, in his influential dissent in Powell, supra, pp 471-474 , emphasized the need for a standard with a "definite meaning.” Smith rejected the control test, in large part, 20 because it "failed to achieve either uniformity or certainty.”' He recognized that "[t]he administration of an

1985As our Court of Appeals aptly stated in McKissic v Bodine, 42 Mich App 203, 208 ; 201 NW2d 333 (1972), 'the problem with economic reality is that it is a conclusion, and it is not a test in the sense that there are any well-defined criteria upon which an objective determination can be based.’ ” Justice Talbot Smith, in his influential dissent in Powell, supra, pp 471-474 , emphasized the need for a standard with a "definite meaning.” Smith rejected the control test, in large part, 20 because it "failed to achieve either uniformity or certainty.”' He recognized that "[t]he administration of an

1956The "service-or-product" test applied in Michigan Bulb Company v. Unemployment Compensation Commission, 337 Mich 292 , is quoted without adverse or critical comment.

1956The “service-or-product” test applied in Michigan Bulb Company v. Unemployment Compensation Commission, 337 Mich 292 , is quoted, without adverse or critical comment.

2021But once there is an employment relationship, as defined in MCL 1 See, e.g., Clark v United Techs Auto, Inc, 459 Mich 681, 687-688 ; 594 NW2d 447 (1999); Kidder v Miller-Davis Co, 455 Mich 25, 31-35 ; 564 NW2d 872 (1997), for discussion about these tests. -3- 339.2501(g), whether as an employee or an independent contractor, plaintiff argued, that relationship cannot be terminated for reasons that violate public policy.

2021But once there is an employment relationship, as defined in MCL 1 See, e.g., Clark v United Techs Auto, Inc, 459 Mich 681, 687-688 ; 594 NW2d 447 (1999); Kidder v Miller-Davis Co, 455 Mich 25, 31-35 ; 564 NW2d 872 (1997), for discussion about these tests. -3- 339.2501(g), whether as an employee or an independent contractor, plaintiff argued, that relationship cannot be terminated for reasons that violate public policy.

2018Laster, 316 Mich App at 735-737 ; Campbell, 273 Mich App at 233-234 . “ ‘An independent contractor is one who, carrying on an independent business, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer as to the means by which the result is to be accomplished, but only as to the result of the work.’ ” Laster, 316 Mich App at 735-736 , quoting Utley v Taylor & Gaskin, Inc, 305 Mich 561, 570 ; 9 NW2d 842 (1943) (quotation marks and citation omitted from Utley, emphasis omitted from Laster). “ ‘If the employer of a person or busines

2018Laster, 316 Mich App at 735-737 ; Campbell, 273 Mich App at 233-234 . “ ‘An independent contractor is one who, carrying on an independent business, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer as to the means by which the result is to be accomplished, but only as to the result of the work.’ ” Laster, 316 Mich App at 735-736 , quoting Utley v Taylor & Gaskin, Inc, 305 Mich 561, 570 ; 9 NW2d 842 (1943) (quotation marks and citation omitted from Utley, emphasis omitted from Laster). “ ‘If the employer of a person or busines

2018Id. at 8 .

2001Defendant again moved for summary disposition in July 1998, this time arguing that this Court’s decision in Norris v State Farm Fire & Casualty Co, 229 Mich App 231 ; 581 NW2d 746 (1998), changed the law and that the control test should now be used to determine whether defendant was Ashker’s employer.

2001Defendant again moved for summary disposition in July 1998, this time arguing that this Court’s decision in Norris v State Farm Fire & Casualty Co, 229 Mich App 231 ; 581 NW2d 746 (1998), changed the law and that the control test should now be used to determine whether defendant was Ashker’s employer.

2001In addressing the first issue McCarthy applied the economic reality test, McCarthy, supra at 455-456 , and in addressing the second it applied the control test.

2001Defendant contended that Norris expressly overruled McCarthy, supra, and adopted the control test in all but worker’s compensation cases.

1998Hoffman v JDM Associates, Inc, 213 Mich App 466, 468-469 ; 540 NW2d 689 (1995); Kral v Patrico’s Transit Mixing Co, 181 Mich App 226, 230-232 ; 448 NW2d 790 (1989).

1998Hoffman v JDM Associates, Inc, 213 Mich App 466, 468-469 ; 540 NW2d 689 (1995); Kral v Patrico’s Transit Mixing Co, 181 Mich App 226, 230-232 ; 448 NW2d 790 (1989).

1998Applying it, I conclude that the MERC decision is not supported by substantial evidence sufficient for a reasonable mind to accept as adequate to justify its conclusion. i The leading case in Michigan jurisprudence on determining whether an agency relationship exists under the public employment relations act (pera), 2 is Capitol City Lodge No 141, FOP v Meridian Twp, 90 Mich App 533 ; 282 NW2d 383 (1979).

1998Applying it, I conclude that the MERC decision is not supported by substantial evidence sufficient for a reasonable mind to accept as adequate to justify its conclusion. i The leading case in Michigan jurisprudence on determining whether an agency relationship exists under the public employment relations act (pera), 2 is Capitol City Lodge No 141, FOP v Meridian Twp, 90 Mich App 533 ; 282 NW2d 383 (1979).

1995In doing so, we ffillow and reaffirm the control test as applied in May v Harper Hosp, 185 Mich App 548 ; 462 NW2d 754 (1990). i On August 8, 1990, plaintiff, Duane Hoffman, sustained personal injuries when his foot was run over by a forklift operated by Gary Appel, Jr. At the time of the accident, Hoffman was a permanent employee of Shape Corporation, while Appel was a temporary worker provided to Shape by defendant, JDM Associates, Inc., doing business as Manpower of Muskegon (Manpower).

1995In doing so, we ffillow and reaffirm the control test as applied in May v Harper Hosp, 185 Mich App 548 ; 462 NW2d 754 (1990). i On August 8, 1990, plaintiff, Duane Hoffman, sustained personal injuries when his foot was run over by a forklift operated by Gary Appel, Jr. At the time of the accident, Hoffman was a permanent employee of Shape Corporation, while Appel was a temporary worker provided to Shape by defendant, JDM Associates, Inc., doing business as Manpower of Muskegon (Manpower).

1989See also Noble v Roadway Express, Inc, 153 Mich App 12, 18-19 ; 394 NW2d 128 (1986), lv den 428 Mich 885 (1987); Parham v Preferred Risk Mutual Ins Co, 124 Mich App 618, 623-624 ; 335 NW2d 106 (1983). *232 The control test was articulated by our Supreme Court in Janik v Ford Motor Co, 180 Mich 557, 562 ; 147 NW 510 (1914), as follows: The test is whether in the particular service which he is engaged or requested to perform he continues liable to the direction and control of his original master or becomes subject to that of the person to whom he is lent or hired, or who requests his services.

1989See also Noble v Roadway Express, Inc, 153 Mich App 12, 18-19 ; 394 NW2d 128 (1986), lv den 428 Mich 885 (1987); Parham v Preferred Risk Mutual Ins Co, 124 Mich App 618, 623-624 ; 335 NW2d 106 (1983). *232 The control test was articulated by our Supreme Court in Janik v Ford Motor Co, 180 Mich 557, 562 ; 147 NW 510 (1914), as follows: The test is whether in the particular service which he is engaged or requested to perform he continues liable to the direction and control of his original master or becomes subject to that of the person to whom he is lent or hired, or who requests his services.