Sands Appliance Services v. Wilson

Bandstra, J.

(dissenting). I would affirm.

The broad statutory language at issue (an employer “shall not demand or receive, directly or indirectly, ... a fee, gift, tip, gratuity, or other remuneration or consideration . . . ”) evidences a legislative intent that the prohibition should apply to any occasion where an employee must, in any fashion, make payment or provide some sort of consideration to an employer for the privilege of employment. In this case, under the terms of the “tuition contract” he signed, defendant became indebted to plaintiff as a result of his employment. He had to make a $50 payment to plaintiff for each week he was employed or, alternatively, provide a benefit to plaintiff by continuing to work an additional three years beyond the three-year “training” period. In consideration of defendant’s promise to this effect, plaintiff hired him; if defendant would not have so promised, he would not have been hired. The statute clearly applies, and the lower courts correctly decided that the tuition contract was unenforceable and void.

While I might agree with the majority that this is a bad policy result in today’s labor market, I think it is required by the language of the statute. Moreover, I *422find the majority’s reliance on California precedents construing a provision of the California Labor Code to be inapposite. There is nothing to indicate that the Michigan Legislature considered the California statute or its interpretation by the California courts when enacting subsection 8(1) of the Michigan statute, MCL 408.478(1); MSA 17.277(8)(1). Further, if we somehow assume that we should interpret the clear language of the Michigan statute on the basis of the California statute and its history, we would be led to a result directly contrary to that reached by the majority. As the majority summarizes the history of the California statute,1 ante at 412-413, it was broadly enacted in 1917 to apply to “other remuneration or consideration” received by an employee as well as “tips or gratuities.” In 1918, a California court was presented with an argument not raised in this case and, consequently, ruled that this broad application was “violative of principles of ‘substantive due process,’ specifically ‘freedom of contract’ ”. Id. As a result, in 1929, the statute was amended to delete the “remuneration or consideration” language and “was redrafted to only address the treatment of tips and gratuities.” Id.

In contrast, when the Michigan Legislature first enacted the statute at issue here some forty years later, in 1970, it did so including the “other remuneration or consideration” language. This language has not been removed by legislative action in the ensuing almost thirty years. This legislative history evidences *423an apparent rejection of the constitutional concerns raised by the California courts.

In any event, the broad language of subsection 8(1) remains intact. I see no reason to “seriously question whether the Legislature intended” that subsection 8(1) should have application only to a “tips or gratuities” agreement. Ante at 415.

In the motion for rehearing, defendant argues the majority has incorrectly summarized this history. Even assuming this claim is meritless, the history of the California statute adduced by the majority does not support its conclusion regarding the Michigan statute.