Morin v. Department of Social Services

Cynar, J.

(concurring). While I embrace the result arrived at by the majority, I do so on entirely different grounds. In my opinion, the WCAB committed legal error in holding that plaintiff was an independent contractor and not an employee of defendant Department of Social Services (DSS).

The existence of an employer-employee relationship for workers’ compensation purposes is determined by the economic realities of the situation. Lambard v Saga Food Service, Inc, 127 Mich App 262, 269; 338 NW2d 207 (1983); Kain v Michigan, 109 Mich App 290; 311 NW2d 351 (1981), lv den 413 Mich 910 (1982). This economic realities test focuses upon these four factors: (1) control of the worker’s duties; (2) payment of wages; (3) right to hire, fire, and discipline; and (4) performance of the duties as an integral part of the employer’s business toward the accomplishment of a common goal. Askew v Macomber, 398 Mich 212, 217-218; 247 NW2d 288 (1976). The economic realities test " 'views these elements as a whole, assigning primacy to no single one’ ”. Nichol v Billot, 406 Mich 284, 303; 279 NW2d 761 (1979), quoting Schulte v *846American Box Board Co, 358 Mich 21, 33; 99 NW2d 367 (1959) (Smith, J., concurring).

Although Mrs. Radomski had immediate control of plaintiffs duties, her control was not exclusive. Defendant DSS explained to plaintiff during the course of an interview what her duties as a child care aide might encompass. Mrs. Radomski arranged plaintiffs day-to-day activities on April 25, 1977, after plaintiff had begun performing her duties. Furthermore, the DSS was supposed to follow up on plaintiff’s placement in Mrs. Radomski’s home to assure that the placement was working out.

Plaintiff’s wages were paid by defendant. The majority attaches significance to the fact that payment was effected by a draft made payable to both plaintiff and Mrs. Radomski; I do not. This is a test of economic realities, not economic appearances, and the reality was that plaintiff was being compensated by defendant. Mrs. Radomski was not even aware of what plaintiff’s wages were going to be in connection with these services.

Mrs. Radomski’s ability to hire and fire plaintiff was not unqualified. She had to meet eligibility requirements to receive the state-funded service and could select only from a pool of individuals chosen by the state. Mrs. Radomski could fire plaintiff, but the DSS had the ability to decertify plaintiff.

There is little doubt that the performance of plaintiffs duties was an integral part of DSS business. It is appropriate to view the provision of state-funded child care services as part of the broader social welfare system, with the specific goal of client self-sufficiency.

On balance these factors reveal a situation which, although containing certain earmarks of an *847independent contractor relationship, more realistically suggests an employer-employee relationship. I would hold that plaintiff, having been compensated by the state, subject to residual control by the state, and performing functions in furtherance of state goals, was an employee of defendant DSS for workers’ compensation purposes.