Michigan: Part-time Bartender Was Independent Contractor, Not Employee

December 08, 2020 (2 min read)

A Michigan appellate court held that a part-time bartender, who was "paid under the table," and who sustained a serious ankle injury when she tripped while working, was an independent contractor--not an employee of the bar. Accordingly, she could maintain a tort action against the bar owner as a "business invitee." The appellate court noted that the specific issue at state--which of two competing tests should be used to determine her employment status--had not come before a Michigan court. The court indicated the Michigan Administrative Hearing System (MAHS) used the 20-factor IRS test, but Michigan courts were to use a three-factor statutory test [see MCL 418.161(1)(n)]. Under that test, three questions are examined:

Does the person maintain a separate business?
Does the person hold himself or herself out to and render service to the public? and
Is the person an employer subject to this act.

Utilizing that test, the court agreed with the trial court that the bartender held herself out to the public to perform the service of bartending. She was an independent contractor and her tort action was, therefore, not barred by the exclusivity doctrine.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Drob v. SEK 15, Inc., 2020 Mich. App. LEXIS 7773 (Nov. 19, 2020)

See generally Larson’s Workers’ Compensation Law, § 60.01.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see

Maryland: Tyson Farms Was Not Co-Employer of Local Poultry Farm Worker

Stressing there was a distinction between control over the workplace, on the one hand, and control of the worker, on the other, the Court of Appeals of Maryland reversed a decision of lower appellate court that had concluded Tyson Farms was a co-employer of worker at a Maryland poultry farm who sustained injuries in a work-related accident. The local farm turned out to be uninsured and the state's Uninsured Employers' Fund impleaded Tyson Farms, contending that it controlled the day-to-day activities of the worker and, accordingly, should be responsible for any workers' compensation benefits. After a two-day jury trial, the jury returned a finding that Tyson Farms was not a co-employer, but a divided Court of Special Appeals later determined, as a matter of law, that Tyson Farms was an employer. After that decision was appealed to the Court of Appeals, the Court observed that even when the evidence was not contradicted, if there were conflicting inferences that could be drawn from the evidence--as was the case here, said the high court--the question was to be determined by the jury as a question of fact, and not by the court. The jury had done its job and the majority of the lower appellate court was in error.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Tyson Farms, Inc. v. Uninsured Employers’ Fund, 2020 Md. LEXIS 591 (Nov. 20, 2020)

See generally Larson’s Workers’ Compensation Law, § 60.01.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see