Powell v. Employment Security Commission

Boyles, J.

The controlling question here for decision is whether one Rebecca Cohen, who was paid by plaintiffs-appellants $1 for each photograph negative she “retouched” for the studio, was their employee, or an independent, contractor, under the Michigan employment security act,^* formerly called the Michigan unemployment compensation act.

The usual statutory processes have been followed within the defendant commission, culminating in the appeal to this Court from a judgment entered in the circuit court for Wayne county holding that Rebecca Cohen was an employee of the plaintiffs within the meaning of section 42(1) and section 44(1) of the act.^† Hearings were held before a referee of the commission on the question whether Rebecca Cohen was an employee of the plaintiffs, the appeal board of the commission affirmed the finding of the referee that Rebecca Cohen was an employee of the plaintiffs, and, on review by certiorari in the circuit court, that decision was affirmed. Plaintiffs appeal. The facts are not in dispute.

Plaintiffs, doing business as the H. A. Powell Studios, are engaged in the business of taking pictures, developing, retouching and printing portraits for the general public. Most of their work is done in their studios in Detroit. However, they do not have sufficient space in their studios to accommodate all of the work of retouching negatives and some of it is done by other retouchers than those regularly employed by plaintiffs on their premises. Rebecca Cohen applied for and obtained negatives from plaintiffs to take home, to be retouched by her at home and returned. Plaintiffs’ business has tended to specialize, they principally do portrait work. A large share of this consists of photographing students for high school annuals. After the pictures are taken and the negatives developed, further work is required on them which is known as retouching. This consists of softening high lights, brightening shadows, removing facial blemishes, and spotting the negatives. Because of the principal type of work done by plaintiffs, they have busy seasons from September to December, and from January to. May. During these periods they have a much larger, number of negatives which require retouching. This additional work is given to “outside” or free-lance retouchers, who pick up the negatives at plaintiffs’ place of business, retouch them at their home or at some other place, and return them. Occasionally, some of the work is given to other studios. Rebecca Cohen was one of these “outside” retouchers. The tools required for the work are furnished by the retouchers themselves, and consist of lead pencils, etching knives, reducing pencils, abrasive removers, and a box with a light in it. The outside retouchers are permitted to take as many negatives at one time as they desire, but they must complete and return them within 7 days. If this is not done, they must either get an extension of the completion time or return them in an incompleted state. Ordinarily, if any of the work is defective, the retoucher corrects it himself. When work slackens, plaintiffs first relieve the outside retouchers whose work is not of as high a quality as that of the others.

Plaintiffs also employ a number of “inside” retouchers. The number of these apparently varies from time to time. They work regular hours and are paid on the same piecework basis as the outside retouchers. Rebecca Cohen was given negatives by appellants which she took home and worked on. She-did no work on the appellants’ premises. She owned all of her own equipment. As an outside retoucher, she was not required to follow any schedule or account to appellants for her time. She was allowed to take as many negatives home as she wanted, the only restriction being that at the end of 7 days all negatives had to be returned. The more difficult phase of retouching consists of correcting and altering the eyes, mouth, nose and hair, which requires supervision, and this was done by the “inside” retouchers, who were under direct supervision. Outside retouchers were paid on a piecework basis. During the rush periods retouching work was given out to about 25 “outside” retouchers. Some of it was sent out to competitors of plaintiffs, to retouch Powell Studio negatives. All outside retouchers received $1 per negative. There was a distinction between Rebecca Cohen’s work and that of the so-called “inside” retouchers, who worked on more important details under direct supervision, on plaintiffs’ premises. Several inside retouchers were employed by the studio on a regular basis. They were under supervision, required to work on schedule, and their hours of employment and work assignments were regulated. They were paid on a regular payroll check.

We have recently passed upon a situation which seems to have been sufficiently identical with the above facts, and decision here is controlled by Michigan Bulb Co. v. Unemployment Compensation Commission, 337 Mich 292.

Necessarily, there will always be some variation in the facts and circumstances which can be claimed to distinguish each case from previous decisions. This is true in the case at bar. However, we do not find in the instant case any substantial difference from the Michigan Bulb Case in its facts and circumstances which would lead us to conclude that the so-called Michigan Bulb Case, supra, should not be followed in the instant case. Fundamentally, decision must be based on the conclusion announced by this Court in 1940 in Lewis v. Summers, 295 Mich 20, 23, where Mr. Justice Wiest, in writing for the Court, quoted with approval from Dennis v. Sinclair Lumber & Fuel Co., 242 Mich 89, 92, as follows:

“This Court has held that the test of the relationship [employer and employee] is the right to control, whether in fact exercised or not. Tuttle v. Embury-Martin Lumber Co., 192 Mich 385 (Ann Cas 1918C, 664).”

The record in the instant case does not show sufficient facts and circumstances to establish the right of the plaintiffs to control the acts of Rebecca Cohen, for us to conclude that she was an employee of the plaintiffs, and not an independent contractor. The '2 incidents present in the case at bar on which the defendants mainly rely to establish such essential right of the plaintiffs to control the work are that Rebecca Cohen had to return the negatives within 7 days, and that the work must have been satisfactory according to the instructions of the plaintiffs. But these 2 criteria might apply equally to an independent contractor as well as to an employee. Otherwise, Rebecca Cohen was entirely “on her own” insofar as there was any control over her work by the plaintiffs. The right of the plaintiffs to set the time within which the work must be done, and to decide whether or not the finished product was satisfactory to the plaintiffs, is not sufficient to establish that she was an employee, and not an independent contractor.

Our decision in the Michigan Bulb Case was handed down after the lower court had decided that Rebecca Cohen was an employee, but was later brought to the attention of that court by a petition for a rehearing. The trial court then affirmed its decision, filing an opinion to distinguish the Michigan Bulb Case from the instant case on the aforesaid grounds, neither of which is considered as controlling of decision. While it is true that plaintiffs relied on a preliminary showing by Rebecca Cohen that she had the necessary skill and ability to retouch the negatives satisfactorily to the requirements of the plaintiffs, this would likewise be true if she were an independent contractor. The final test of her work was whether the finished product was satisfactory. If not, she was not paid until the work had been done over. The requirement that the work had to be “performed according to the standards, set up by the studio” would apply equally to the work of an independent contractor. None of these incidental facts can be set up as the yardstick to establish a difference between an independent contractor and an employee.

In the view we take of the controlling question in this case, it is not necessary to pass, on other grounds argued in the briefs, including the impact of the Federal act of congress on the question here, brought into the argument by counsel, under section 42 (6) (n) of the act. See Pazan v. Unemployment Compensation Commission (decided December 1, 1955), 343 Mich 587. Furthermore, appellants had sought and received a ruling from the United States treasury department, as follows:

“Receipt is acknowledged of your letter dated November 19, 1943, regarding the status of 'retouchers under the withholding provisions of the current tax payment act. You state that these persons come to your studio to pick up negatives which they take home to retouch. It appears that these persons perform similar services for other studios and that you have'no control over time and place of their work.

“From the information submitted, it is the opinion of this office that these persons are independent agents. Employers are required to withhold income tax from wages paid to employees “only. No withholding is required from amounts paid to independent agents.”

Obviously, the question whether an individual is an employee or an independent contractor, under the provisions of the employment security act, is. debatable, and must depend on the facts and circumstances of each case. The recent Michigan Bulb Case is decisive of the question here. See, also, Bonifas-Gorman Lumber Co. v. Unemployment Compensation Commission, 313 Mich 363; Louis A. Demute, Inc., v. Employment Security Commission, 339 Mich 713.

Reversed and remanded for entry of an order setting aside the judgment, and for entry of a judgment setting aside the decision of the appeal board that Rebecca Cohen was an employee of the plaintiffs. No costs, a public question being involved.

Dethmers, C. J., and Sharpe, Reid, Kelly, and Carr, JJ., concurred with Boyles, J.

* PA 1936 (Ex Sess), No 1, as amended (CL 1948 and CLS 1954, § 421.1 et seq. [Stat Ann 1950 Eev and Stat Ann 1953 Cum Supp § 17.501 et seq.]).

† CLS 1954, §§ 421.42(1),. 421.44(1) (Stat Ann 1953 Cum Supp §§ 17.545[1], 17.548[1]). The subsequent amendment by PA 1955, No 281, effective July 15, 1955, does not apply here.