Opinion
362281
12-20-2022
Occupational Safety And Health Administration v. Fryz Services, Inc.
LC No. 21-000233-AA
Michelle M. Rick Presiding Judge, Elizabeth L. Gleicher Chief Judge, Brock A. Swartzle Judge
ORDER
Pursuant to MCR 7.205(E), in lieu of granting the application for leave to appeal, the Court PEREMPTORILY REVERSES the June 30, 2022 order of the circuit court that affirmed the decision of the Michigan Board of Health and Safety Compliance and Appeals, VACATES the opinion and order, and REMANDS to the Michigan Board of Health and Safety Compliance and Appeals for further proceedings in light of this Court's decision in Michigan Occupational Safety & Health Admin v Yoder Family Farm, __Mich App __; __N.W.2d __(2022) (Docket No. 355262). In Yoder, __Mich App at__, slip op at p. 3, this Court explained that the agency and the circuit court erred as a matter of law by relying on Hottman v Hottman, 226 Mich.App. 171; 572 N.W.2d 259 (1997), in determining whether a person was an "employee" for purposes of the Michigan Occupational Safety and Health Act. Instead, the economic reality test must be applied to the totality of the circumstances. Yoder, __Mich App at__, slip op at p. 7. On remand, we direct the Michigan Board of Health and Safety Compliance and Appeals to apply the economic reality test to the totality of the circumstances in the present case in light of the Yoder decision.
This order is to have immediate effect. MCR 7.215(F)(2). We do not retain jurisdiction.
Swartzle, J., would grant leave in lieu of peremptory reversal.