Section 42
EXCLUDED EMPLOYMENT, Symphony orchestra musician, Contract
CITE AS: Haas (Flint Institute of Music, Inc.) 1983 BR 1694 (L81 02161).
Appeal pending: No
Claimant: Marc W. Haas
Employer: Flint Institute of Music, Inc.
Docket No: L81 02161 1694
BOARD OF REVIEW HOLDING: The test of employment is one of "economic reality" and not "control and direction" exclusively.
FACTS: Claimant signed a contract with the employer for the 1979-1980 concert season, which incorporated the provisions of the master contract between the American Federation of Musicians and the employer. The claimant furnished his own instrument and clothing. Claimant was paid $25 for each rehearsal and performance. Claimant also performed with the Michigan Chamber Orchestra, the Detroit Symphony Orchestra, and also offered his services as a teacher.
DECISION: Claimant's services are not excluded under Section 42(1) and (5) of the MES Act.
RATIONALE: McKissic v Bodine, 42 Mich App 203, 208 (1972) sets forth the principal factors to be considered in determining whether there is an employment relationship: First, what liability, if any, does the employer incur in the event of the termination of the relationship at will? Second, is the work being performed as an integral part of the employer's business which contributes to the accomplishment of a common objective? Third, is the position or job of such a nature that the employee primarily depends upon the emolument for payment of his living expenses? Fourth, does the employee furnish his own equipment and materials? Fifth, does the individual seeking employment hold himself out to the public as one ready and able to perform tasks of a given nature? Sixth, is the work or the undertaking in question customarily performed by an individual as an independent contractor? Seventh, control, although abandoned as an exclusive criterion upon which the relationship can be determined, is a factor to be considered along with payment of wages, maintenance of discipline and the right to engage or discharge employees. In this case, the integrity of Claimant's services to the employer's overall objective was persuasive.
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5, 6, d15:NA