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The test of the relationship (employer and employee) is the right to control, whether in fact exercised or not.
Plaintiffs, doing business as the H. A. Powell Studios, were engaged in the business of taking pictures, developing, retouching and printing portraits for the general public. Plaintiffs did not have sufficient space in their studios to accommodate all of the work of retouching negatives. Rebecca Cohen applied for and obtained negatives from plaintiffs to take home, to be retouched by her at home and returned. Cohen did no work on plaintiffs’ premises. She owned all of her own equipment. As an outside retoucher, she was not required to follow any schedule or account to plaintiffs for her time. The Michigan Employment Security Commission Appeal Board affirmed a referee's finding that Cohen was plaintiff’s employee of plaintiffs. The circuit court affirmed, finding that Cohen was an employee within the meaning of the employment security act, Mich. Comp. Laws § 421.1 et seq.; Mich. Stat. Ann. § 17.501 et seq. Plaintiffs appealed.
Under the circumstances, could Cohen be considered as plaintiffs’ employee?
The court reversed the judgment, and held that the record did not show sufficient facts and circumstances to establish the right of the plaintiffs to control the acts of Cohen. The right of the plaintiffs to set the time within which the work was to be done and to decide whether or not the finished product was satisfactory was not sufficient to establish that Cohen was an employee, and not an independent contractor.