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Foster v MESC 17.09

Section 42


CITE AS: Foster v MESC, 15 Mich App 96 (1968).

Appeal pending: No

Claimant: NA

Employer: Vern Foster, d/b/a Livonia Yellow & Red Cab

Docket No: L65 1247 1262

COURT OF APPEALS HOLDING: The court remanded because the Appeal Board incorrectly applied the "right to control test" rather than the statutory test. Also, the Board failed to make an explicit finding of whether the drivers followed a pattern of operation established by the employer and were controlled by employer in the performance of their work.

FACTS: Employer owned 5-10 cabs. Anyone who had a City of Livonia taxi license could lease one of the cabs. Employer had no established work schedule for the drivers. Cabs were assigned to driver's on a "first come first serve" basis. To get a cab a driver put down a $10 refundable deposit. Employer provided the cab in a clean condition with the motor oil checked and replaced if needed. An oral lease provided that the drivers would return the cab within 12 hours in the same condition. The cab could be returned at any time less than 12 hours. The driver retained 40% of the fares, and employer kept 60%. Employer did not have a dress code but did prohibit the use of alcohol. Livonia set the meter rates. The city required drivers to prepare and submit a trip sheet, detailing each run. Employer never gave the driver orders, nor did he "field check" them. Drivers could refuse runs.

DECISION: Remand for further evidence and new decision.

RATIONALE: "The critical question is whether the drivers whose wages it is sought to tax did conform to the employer's pattern by leaving their radios on, taking radio calls and gravitating to the cab stands where they could obtain telephone calls...."



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