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Contact Mark Risk

Address: 932 Rose Ct. Traverse City, MI 49686

Telephone: (231) 941-0054

Fax: (231) 941-4991

Email: markrisk@gmail.com

Proudly representing clients in Northwest Michigan including:

Grand Traverse, Leelanau, Antrim, Benzie, Manistee, Kalkaska, Emmet, Wexford, and other counties throughout Michigan

If you're having trouble with Unemployment Compensation and you need legal advice you have come to the right place.

 I have 31 years experience and served 12 years as an Administrative Law Judge for the Unemployment Department 


Entries in fired from job (2)

Friday
Mar252011

Are you an employee or a subcontractor?

Some employers are calling “employees” subcontractors.  This is done for a variety of reasons.  This usually includes not having to pay for workers compensation insurance and unemployment insurance.  This can add up to huge savings.

But what your employer calls you is not necessarily what you are.  You can call an apple an orange, but it does not make it so.  If you believe you are really an employee then file for benefits. An Administrative Law Judge will decide which one  you are.

Photo: Mas AbieIn Michigan the most referred to case on this issue is McKissic v Bodine, 42 Mich App 203 (1972); lv den 388 Mich 780 (1972).  Here the Court set out a test of eight factors to look at to make the decision.

The Court stated: “The test to determine whether an employee-employer relationship exists for purposes of the Worker's Compensation Act is the "economic reality test", and the factors used to apply the test are whether: (1) the employer will incur liability if the relationship terminates at will; (2) the work performed is an integral part of the employer's business; (3) the employee primarily depends upon the wages for living expenses; (4) the employee furnishes equipment and material; (5) the employee holds himself out to the public as able to perform certain tasks; (6) the work involved is customarily performed by an independent contractor. Along with (7) the factors of control, payment of wages, maintenance of discipline, and the right to engage or discharge employees; and (8) weighing those factors which will most favorably effectuate the purposes of the Act.

Obviously, this is a complicated test.  But if it can be simplified I’d say it looks at degree of control.  The more the employer controls what you do, where you do it, how you do it and when you do it, determines if you are an employee or subcontractor.  The more the control the more likely you are an employee.

If you have any questions regarding your status as an employee or subcontractor, you should contact a lawyer who is familiar with unemployment law.

 

Thursday
Mar032011

Quit or Fired - How the law views a separation

Photo: Kay HendryI frequently hear that an employee was given the opportunity to quit rather than be fired.  Most people do not know what the law is on the issue and are unsure of what to do.  The following are some reasons why quitting may prove to be the better option. 

First, it looks better on your resume if you quit rather than being fired.  Second, the Unemployment Agency knows this situation comes up quite often.  They don’t look at what the parties called the “separation”. They look at whether or not the claimant “voluntarily” quit.  They also look at who initiated the separation from employment.

When the employer gives you the choice to quit or be fired, this is not “voluntary”.  The Courts have called this a “Hobson’s Choice”.  A “Hobson’s Choice” means no real choice at all.  The term has various origins.  I heard that it came from a character in a Charles Dickens novel named Mr. Hobson.  In any event the Unemployment Agency considers this a firing and not a quit.

A word of caution; make sure that there is something in writing that the employer gave you this choice.  You do not want the employer to later claim there was no discussion of firing.  I’ve even had cases where a year later an employer claimed an employee quit rather than was laid off.  So, be prepared and keep any employment documents on file to be safe.