EASTWAY v EISENGA
Docket Nos. 71532, 71533
Supreme Court of Michigan
Argued May 9, 1984 (Calendar No. 9). — Decided December 28, 1984
Released January 17, 1985. Rehearing denied 421 Mich 1202
420 MICH 410
In an opinion by Justice Brickley, joined by Chief Justice Williams and Justices Ryan, Cavanagh, and Boyle, the Supreme Court held:
Classifications in the workers’ compensation act between agricultural employers and other employers are rationally related to the permissible goal of recognizing the economic uniqueness of agricultural employers and do not violate the right of equal protection of the law.
1. The workers’ compensation act is primarily social and economic legislation, involving property and not fundamental rights, and thus is subject to review under the rational basis standard. The burden is on the person challenging a classification under the act to show that it lacks reasonable justification, and the classification will be set aside only if there are no facts which can reasonably be conceived to justify it.
2. Under
Reversed and remanded.
Justice Levin, joined by Justice Kavanagh, dissenting, stated that it is inappropriate to overrule the decision of the Supreme Court in Gallegos v Glaser Crandell Co, 388 Mich 654 (1972), on the ground that Gallegos was decided on an issue not necessary to the resolution of the case or without a lower court record because:
i) the Court in Gallegos concluded that the analysis in the separate opinion of the subclassification “agricultural workers” established by the exceptions in the act was not factually supported and that conclusion was not clearly erroneous;
ii) Gallegos did not depend on a factual basis in a lower court record; the Court found, rather, that there was not a factual basis for the “piecework” analysis which the majority in this case states made it unnecessary for the Court in Gallegos to reach the broader issue; and
iii) the defendants in this case did not raise the question whether Gallegos should be overruled.
The majority states that any portions of Gallegos inconsistent with its opinion are overruled. The inference is that Gallegos may still govern where the farm worker is “paid by the piece” and is not a seasonal agricultural worker, i.e., he is employed 35 or more hours per week by the same employer for 13 or more consecutive weeks during the preceding 52 weeks. The majority does not, however, state a doctrinal basis for such a rule, and, as it recognizes, a majority of the Court in Gallegos
Gallegos should not be overruled unless and until the question is presented and there is the resulting notice to persons who might be affected by the decision. Overruling Gallegos might enable an agricultural employer with a large workforce to avoid the application of the workers’ compensation act.
The exclusive remedy bar of the workers’ compensation act protects agricultural employers subject to the provisions of the act from personal injury actions that might otherwise be commenced by injured workers. The fallout from an overruling of Gallegos is unclear. The majority notes that injured farm workers not covered by the workers’ compensation act retain the common-law right to sue their employer. The Court should adopt without delay an amendment to the court rules, or an administrative order, that tolls until the announcement of the overruling decision, the statutes of limitations on actions against agricultural employers—relieved by the majority‘s decision of workers’ compensation liability—heretofore barred by this Court‘s decision in Gallegos which had the effect of making the exclusive remedy provision applicable to agricultural employment.
Under the Court‘s decision in Gallegos, the workers’ compensation act applies to agricultural employers who regularly employ three or more employees. The provisions of the workers’ compensation act which attempted to differentiate between employers of three or more regular employees and agricultural employers of three or more employees were held to be unconstitutional as violative of equal protection. Thus, the differentiation being invalid, the act applies to agricultural employers who regularly employ three or more employees. In this case, it is unclear whether Mr. Eisenga regularly employed three or more employees at one time, requiring remand to the WCAB for clarification of the number of employees, other than resident family members, regularly employed at one time. If it is determined that Mr. Eisenga did regularly employ three or more employees at one time, it would be unnecessary to determine the effect of the provisions of the act that exclude resident family members from consideration as employees.
OPINION OF THE COURT
1. WORKERS’ COMPENSATION — AGRICULTURAL WORKERS — EQUAL PROTECTION.
Classifications in the workers’ compensation act between agricul-
2. WORKERS’ COMPENSATION — AGRICULTURAL WORKERS — EQUAL PROTECTION.
Agricultural employers who do not employ three or more regular workers thirty-five or more hours per week for thirteen or more consecutive weeks out of the preceding fifty-two and who pay the workers a salary or by the hour rather than on the basis of piecework, or who employ one or more workers thirty-five or more hours per week for five or more consecutive weeks, are exempt from the provisions of the workers’ compensation act (
DISSENTING OPINION BY LEVIN, J.
3. WORKERS’ COMPENSATION — AGRICULTURAL WORKERS.
The workers’ compensation act should apply to agricultural employers who regularly employ three or more employees (
4. WORKERS’ COMPENSATION — AGRICULTURAL WORKERS — EQUAL PROTECTION.
Differentiation between employers of three or more regular employees and agricultural employers of three or more regular employees for purposes of the applicability of the workers’ compensation act is unconstitutional as violative of equal protection (
Williams, Klukowski, Drew & Fotieo, P.C. (by Paul A. Williams), for the plaintiff.
Baxter & Hammond (by James R. Piggush) for defendants Eisenga and Hastings Mutual Insurance Company.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Richard F. Zapala, Assistant Attorney General, for the Second Injury Fund.
BRICKLEY, J. In this case we must decide
Plaintiff first worked for defendant in 1967. During the next few years plaintiff intermittently worked for defendant, mainly during haying and potato seasons.2 In the spring of 1969, plaintiff worked a couple of Saturday afternoons cultivating fields for defendant. In June of the same year plaintiff worked 2 to 3 days per week, 5 to 7 hours per day for defendant while working part time for another employer. Throughout that summer plaintiff worked 4 to 5 hours per week for defendant while also holding other jobs. In late August or early September, plaintiff began working full time for a Mr. Johnson. While still working for Johnson, plaintiff worked one day for defendant during potato season. On that day, September 30, 1969, plaintiff, then age 18, was injured.
The injury occurred when the plaintiff was caught in a self-loading wagon. As a result of the accident, plaintiff is a quadriplegic confined to a wheelchair. Plaintiff was eligible for lifetime medical benefits which have been supplied and are not at issue in this appeal.
Two haying seasons occurred each year on defendant‘s farm. During the first, defendant hired 4 to 5 full time employees for a 2 to 3 week period. Later in the year defendant would hire the same number of full time employees for approximately one week. During potato season defendant hired 8 to 10 people who worked approximately 20 hours per week for 2 to 2-1/2 weeks.
In 1977, the hearing referee awarded disability benefits on the basis of his understanding that Gallegos v Glaser Crandell Co, 388 Mich 654; 202 NW2d 786 (1972), held that the agricultural exclusion in
The Court of Appeals denied defendant‘s application for leave to appeal. Judge CYNAR voted to grant the application. This Court subsequently remanded the case to the Court of Appeals for consideration as on leave granted. GCR 1963, 853.2(4); 413 Mich 872 (1982).
The Court of Appeals, in an unpublished opinion per curiam, decided April 1, 1983 (Docket Nos. 63830, 63831), affirmed the decision of the WCAB. The Court interpreted Gallegos to mean that “all distinctions between private and agricultural employers violate the equal protection clause of the Fourteenth Amendment.” The Court struck the
The statute at issue in this case,
“Sec. 115. This act shall apply to:
“(a) All private employers, other than agricultural employers, who regularly employ 3 or more employees at 1 time.
“(b) All private employers, other than agricultural employers, who regularly employ less than 3 employees if at least 1 of them has been regularly employed by that same employer for 35 or more hours per week for 13 weeks or longer during the preceding 52 weeks.
“(c) All public employers, irrespective of the number of persons employed.
“(d) All agricultural employers of 3 or more regular employees paid hourly wages or salaries, and not paid on a piecework basis, who are employed 35 or more hours per week by that same employer for 13 or more consecutive weeks during the preceding 52 weeks. Coverage shall apply only to such regularly employed employees. The average weekly wage for such an employee shall be deemed to be the weeks worked in agricultural employment divided into the total wages which the employee has earned from all agricultural occupations during the 12 calendar months immediately
“(e) All agricultural employers of 1 or more employees who are employed 35 or more hours per week by that same employer for 5 or more consecutive weeks shall provide for such employees in accordance with rules established by the director, medical and hospital coverage as set forth in section 315 for all personal injuries arising out of and in the course of employment suffered by such employees not otherwise covered by this act. The provision of such medical and hospital coverage shall not affect any rights of recovery that an employee would otherwise have against an agricultural employer and such right of recovery shall be subject to any defense the agricultural employer might otherwise have. Section 141 shall not apply to cases, other than medical and hospital coverages provided herein, arising under this subdivision nor shall it apply to actions brought against an agricultural employer who is not voluntarily or otherwise subject to this act. No person shall be considered an employee of an agricultural employer if the person is a spouse, child or other member of the employer‘s family, as defined in subdivision (b) of section 353 residing in the home or on the premises of the agricultural employer.
“All other agricultural employers not included in subdivisions (d) and (e) shall be exempt from the provisions of this act.”
In Gallegos, the plaintiffs also challenged the constitutionality of
The Court of Appeals granted plaintiffs’ application for leave to appeal and subsequently affirmed the decision of the WCAB. Gallegos v Glaser Cran-dell Co, 34 Mich App 489; 192 NW2d 52 (1971). The Court stated the issue before it as follows:
“The precise question then is whether the creation of classes within the act, thereby allowing for coverage to permanent salaried or wage-earning [farm] laborers while denying coverage to temporary piecework laborers (such as migrant workers) is such unreasonable and arbitrary discrimination as to deny the latter equal protection of the laws guaranteed by the [state and federal constitutions].” 34 Mich App 491-492.
After deciding that the plaintiffs’ rights to travel were not violated, the Court further held that “it cannot be said that the legislative decision to amend the act so as to include certain farm laborers while continuing to exclude others was arbitrary or totally without reason.” Id., p 497. Finally, the Gallegos Court of Appeals stated: “In upholding the constitutionality of [
This Court granted leave to appeal in Gallegos and “the arguments of appellants and appellee [each] posit[ed] the issue as piecework.” (WILLIAMS, J., concurring in part and dissenting in part, 388 Mich 676.) Specifically, in Gallegos the “[p]laintiffs argue[d] that the exclusion from workmen‘s compensation benefits of those agricultural workers who are paid on a piecework basis * * * denies those workers the equal protection of the laws.” (T. G. KAVANAGH, J., concurring in result, id., p 670.)
The majority in Gallegos held that “the provisions of
Clearly, it was not necessary for the majority in Gallegos to decide whether it is permissible for the Legislature to distinguish between the two types of employers in order to decide whether employees paid by the piece and those paid by wages may be treated differently. Nonetheless, the majority did so hold. We now find that because Gallegos was decided on issues not necessary to the resolution of the case and without a lower court record or briefing on the broader issue of distinctions between employers, it is now necessary to undertake a further analysis of that issue. Our inquiry, then, is whether the Legislature may exempt from the WDCA certain agricultural employers without violating plaintiff‘s right to equal protection of the law.
The standard of review for social and economic legislation generally is applicable to evaluate provisions of the workers’ compensation act in question here. Johnson v Harnischfeger Corp, 414 Mich
Michigan‘s first workers’ compensation statute was 1912 (1st Ex Sess) PA 10. Under the act, farm laborers, domestic servants and casual workers were treated differently than all other employees. 1912 (1st Ex Sess) PA 10, § 2. In 1943, farm laborers were expressly excluded from coverage under the workmen‘s compensation act. 1943 PA 245, § 2a.4 In 1965, the Legislature revised much of the workmen‘s compensation act, including the section which has since evolved into
Prior to the 1965 revision, a concurrent resolution was adopted by the House of Representatives and Senate authorizing a joint special interim committee to investigate and study the entire structure of the workmen‘s compensation system in Michigan. The committee report stated the following with respect to agricultural employees:
“The Committee received substantial testimony, both pro and con, with respect to covering additional labor by the Act. At the present time both agricultural and domestic servant labor can be covered on a voluntary basis. Reports indicate that the total year-round farm labor force in the State of Michigan, including family help and hired labor, is approximately 149,500 persons. This figure, however, includes farmers themselves, farm wives, sons, daughters, and other relatives. It appears that the aggregate number of full time hired farm workers is between three and five thousand persons. The Committee heard testimony alleging that the costs would be prohibitive to bring all agricultural workers within the Compensation Act. However, there is a strong argument for bringing permanent agricultural employees and domestic servants under the purview of the compensation law. It is the recommendation of the Committee that consideration be given to additional coverage for these groups.” 1965 Journal of the House, pp 77-78. (Emphasis added.)
Thus, it appears that the Legislature exempted certain smaller agricultural employers from WDCA coverage because it believed that coverage would create an undue economic burden on them. The Legislature further intended to bring larger agricultural employers and their permanent full time employees under coverage. All other private employers are covered if they regularly employ three or more employees at one time or if they
We hold that the classifications drawn by the statute are rationally related to the permissible goal of recognizing the economic uniqueness of Michigan‘s agricultural employers.
The Legislature could have reasonably concluded that agricultural employers needed to be protected from the additional overhead of workers’ compensation insurance premiums.5 The Legislature could have further decided that an excessive administrative burden on small agricultural employers would result if WDCA coverage were required. The casual and often familial nature of agricultural employment might make it administratively onerous for small agricultural employers to determine which employee should be covered. For example, small farmers often trade labor between themselves, friends, neighbors, and family. Requiring the small farmer to keep records on and insure each casual or temporary employee could effect a serious drain on time and resources.
The wisdom of this policy of partial agricultural exclusion is not before us, nor is the question whether a similar exclusion should have also been given to other small businesses. It is settled that
The lawmakers could also consider the fact that farmers, unlike those in other sectors of the economy, ordinarily have no power to raise their prices to absorb the additional overhead costs occasioned by premium costs of workers’ compensation insurance. Ross v Ross, 308 NW2d 50, 53 (Iowa, 1981).
Since the plaintiff has failed to show that a separate classification for agricultural employers in
Any portions of Gallegos inconsistent with this opinion are hereby overruled.
Turning to the statute as applied to the instant case, we find that the facts are undisputed. The defendant did not have three or more regular employees who had worked 35 or more hours per week for 13 consecutive weeks prior to the accident.
Reversed and remanded.
No costs as a public question is involved.
WILLIAMS, C.J., and RYAN, CAVANAGH, and BOYLE, JJ., concurred with BRICKLEY, J.
LEVIN, J. (dissenting). It is, in our opinion, inappropriate to overrule the decision of this Court in Gallegos v Glaser Crandell Co, 388 Mich 654; 202 NW2d 786 (1972), on the basis that Gallegos was decided on,
i. an “issue not necessary to the resolution of the case,” or
ii. “without a lower court record,” under the circumstances that,
i. The Court in Gallegos concluded that the subclassification analysis proffered by Justice THOMAS G. KAVANAGH was not factually supported and that conclusion was not clearly erroneous, and
ii. The basis of decision in Gallegos did not depend on a factual basis in a “lower court record“; the Court in Gallegos found rather that there was not a factual basis for the “piecework” analysis which the opinion of the Court today states made it unnecessary for the Court in Gallegos to reach the “broader issue,” and
iii. The appellants in the instant case did not raise the question whether the decision in Gallegos should be overruled before the WCAB or the Court of Appeals or in their application for leave to appeal to this Court; and the Statement of Questions Involved does not set forth or necessarily suggest that Gallegos should be overruled. (See fn 13.)
The opinion of the Court adverts to the analysis and opinion of Justice KAVANAGH in Gallegos, but omits from the quotation from his opinion the words “and those agricultural workers who do not
Gallegos may indeed have been incorrectly decided. It should not be overruled, however, unless and until the question is duly presented and there is the resulting notice to persons who might be affected by an overruling decision.
The Court states that “[a]ny portions of Gallegos inconsistent with this opinion are hereby overruled.” The inference is that Gallegos is not overruled in its entirety; although not stated, Gallegos may still govern where the farm worker is “paid by the piece” and is not a seasonal agricultural worker, i.e., he is employed 35 or more hours per week by the same employer for 13 or more consecutive weeks during the preceding 52 weeks. The Court does not, however, state a doctrinal basis for such a rule, and, as the Court recognizes, a majority of the Court in Gallegos declared that it could not adopt an analysis that would provide a basis for such a rule. Thus, if Gallegos survives to that extent, it does so by fiat without a doctrinal basis in which a majority of this Court has joined. (See fn 13.)
The effect of today‘s overruling decision is not limited to persons employed by “small family farmers.” Overruling Gallegos might enable an agricultural employer with a large workforce to avoid the application of the workers’ compensation act. (See fn 17.)
The exclusive remedy bar of the workers’ compensation act protects agricultural employers subject to the provisions of the act from personal
The opinion of the Court notes that injured farm workers not covered by the workers’ compensation act “retain the common-law right to sue their employer.” The Court should adopt without delay an amendment to the court rules, or an administrative order, that tolls (see Mair v Consumers Power Co, 419 Mich 74; 348 NW2d 256 [1984] [LEVIN, J., dissenting]), until the announcement of today‘s overruling decision, the statutes of limitations on actions against agricultural employers—relieved by today‘s decision of workers’ compensation liability—heretofore barred by this Court‘s decision in Gallegos which had the effect of making the exclusive remedy provision applicable to agricultural employment.
I
In Gallegos this Court held that
cumstances the act applies to agricultural employees, was violative of the Equal Protection Clauses of the Constitutions of the United States and of this state.2
Jake Eisenga, a farmer, Hastings Mutual Insurance Company, his insurer, and the Second Injury Fund contend that the holding in Gallegos should be limited to migrant workers or to persons not employed on a family farm, and that the Court of Appeals3 erred in affirming the decision of the Workers’ Compensation Appeal Board4 awarding Steven M. Eastway workers’ compensation disability benefits. We would affirm.
Section 115 of the workers’ compensation act provides in subsection (a) that the act applies to all private employers, other than agricultural employers, “who regularly employ three or more employees at one time.”5 Subsection (d) of
This Court noted in Gallegos that subsection (d) (agricultural employers of three or more employees) parallels subsection (a) (other employers who regularly employ three or more employees), and that subsection (e) (agricultural employers of one employee for 35 hours per week for 5 consecutive weeks) parallels subsection (b) (other employers who regularly employ one employee for 35 hours per week for 13 weeks).7 Under subsection (e), the agricultural employer of one or more employees for 35 hours per week for 5 consecutive weeks is obliged to provide medical and hospital coverage but—in contrast with subsection (b) concerning other employers who regularly employ one employee for 35 hours per week for 13 weeks—not disability payments; the agricultural employee may pursue his common-law remedy against his
Eisenga, his insurer, and the Second Injury Fund note that the injured workers in Gallegos were migrant workers who had worked for less than 35 hours per week for 13 consecutive weeks and argue that while Gallegos held subsection (d), concerning agricultural employers of three or more regular employees, unconstitutional it did not hold the clauses of subsections (a) or (b) stating “other than agricultural employers” or subsection (e) to be unconstitutional, and that subsection (e)—as well as subsection (d)—reflects a legislative policy to exempt the family farm from coverage under the act.
After Gallegos was argued, the case was assigned for opinion writing to Justice THOMAS G. KAVANAGH who submitted an opinion which posited the validity of differential treatment of industrial and agricultural employment, but would have held that subsection (d) was violative of the Equal Protection Clause as applied to the subclassification of seasonal agricultural workers who otherwise would have been covered and who worked less than 35 hours per week for 13 consecutive weeks or who were not compensated on an hourly or salary basis.9 Justice PAUL ADAMS submitted an
“There is no basis for distinguishing the work of a laborer who drives a truck at a factory from a laborer who drives one ‘on the farm’ or for any one of numerous other labor activities ‘on the farm’ as distinguished from the same activity in industry, wholesaling, retailing, or building. There is no basis for singling out for an exclusion piecework ‘on the farm’ but not elsewhere. There is no basis for a special definition of ‘weekly wage’ for farm labor as distinguished from any other type of labor. ‘All private employers’ come under the act if they regularly employ three or more employees at one time. On the other hand, only ‘agricultural employers’ who employ 3 or more employees, not on piecework, 35 or more hours per week by the same employer for 13 or more weeks during the preceding 52 weeks come under the act.” Id., pp 666-667.
“From the above, it will be seen that while Justice T. G. KAVANAGH posits the reasonableness of the agricultural classification, in order to consider the propriety of the subclassification of ‘agricultural workers’ which results from the exclusion of certain of them from coverage, my difficulty is with the classification of agricultural employers. Agricultural employers, regardless of the skills of their employees or the activities engaged in, are accorded a special treatment and classification of their employees not accorded any other private or public employer. Such treatment is impermissible, clearly discriminatory and has no rational basis.” Id., p 668.
Chief Justice THOMAS M. KAVANAGH and Justices BLACK and SWAINSON concurred in the opinion written by Justice ADAMS.
It is noteworthy that whether subsection (d) is invalid because the differential classification of
Notes
“(a) All private employers, other than agricultural employers, who regularly employ 3 or more employees at 1 time.
“(b) All private employers, other than agricultural employers, who regularly employ less than 3 employees if at least 1 of them has been regularly employed by that same employer for 35 or more hours per week for 13 weeks or longer during the preceding 52 weeks.
“(c) All public employers, irrespective of the number of persons employed.
“(d) All agricultural employers of 3 or more regular employees paid hourly wages or salaries, and not paid on a piecework basis, who are employed 35 or more hours per week by that same employer for 13 or more consecutive weeks during the preceding 52 weeks. Coverage shall apply only to such regularly employed employees. The average weekly wage for such an employee shall be deemed to be the weeks
“(e) All agricultural employers of 1 or more employees who are employed 35 or more hours per week by that same employer for 5 or more consecutive weeks shall provide for such employees, in accordance with rules established by the director, medical and hospital coverage as set forth in section 315 for all personal injuries arising out of and in the course of employment suffered by such employees not otherwise covered by this act. The provision of such medical and hospital coverage shall not affect any rights of recovery that an employee would otherwise have against an agricultural employer and such right of recovery shall be subject to any defense the agricultural employer might otherwise have. Section 141 shall not apply to cases, other than medical and hospital coverages provided herein, arising under this subdivision nor shall it apply to actions brought against an agricultural employer who is not voluntarily or otherwise subject to this act. No person shall be considered an employee of an agricultural employer if the person is a spouse, child or other member of the employer‘s family, as defined in subdivision (b) of section 353 residing in the home or on the premises of the agricultural employer.
“All other agricultural employers not included in subdivisions (d) and (e) shall be exempt from the provisions of this act.”
“The classification in Michigan‘s statute however appears to have a rational basis in light of the difficulty of administering the act involving such a mobile labor force. In this circumstance we must look to its impact. A court is not confined to a sterile examination of the statute itself, but must look to its effect.” Id., p 672.
“It is not disputed that the classification established by the exceptions contained in Michigan‘s Workmen‘s Compensation Act which we are considering here—seasonal agricultural workers—is largely composed of Chicanos, Blacks and American Indians.” Id., pp 672-673.
“No compelling governmental interest that would justify the exclusion from workmen‘s compensation of those agricultural workers who are paid on a piecework basis and those agricultural workers who work less than 35 hours per week and/or 13 consecutive weeks for the same employer has been demonstrated.” Id., pp 673-674.
“We conclude that no compelling state interest has been shown. Therefore, those portions of the statute excepting piecework employees, and those excepting persons not employed 35 hours a week for 13 consecutive weeks for the same employer are in violation of
Justice WILLIAMS concurred in part and dissented in part from both Justice KAVANAGH‘S concurring opinion and the majority opinion. He agreed with Justice KAVANAGH that the subclassification in
He disagreed with the majority because he could not “agree completely with Justice ADAMS that all classifications of agricultural workers differ from other kinds of workers is unsupported by a rational basis. There are some differences between
Justice BRENNAN dissented and said:
“The categories established do not discriminate against migrant farm workers. Indeed, subsection 115(e) provides a special remedy for
“Our examination must be confined to the Workmen‘s Compensation Act of 1969 (1969 PA 317).” (Emphasis in original.) Gallegos v Glaser Crandell Co, supra, pp 659-660.
“Turning back to the present case, from an examination of the definition of ‘agricultural employer’ (section 155[1]), it will readily be seen that it includes all possible kinds of work ‘on a farm,’ such as plowing, planting, harvesting, maintenance of machinery, bookkeeping, processing, canning, raising cattle or other livestock. The work can vary from the most menial (digging ditches) to the most exacting (expert cross-pollination of plants or flowers) as long as it is ‘on a farm.’
migrant farm workers which is not provided for non-agricultural workers.
“It is obvious that the Legislature has attempted to draw a line between small farms (subsection 115[e]) and big farms (subsection 115[d]). Big farms are treated exactly like any other employer—agricultural or non-agricultural. Little farms, unlike little gas stations, little stores or casual residential employers, are required to carry medical insurance under § 315.
“Thus, if I employ a handyman to work around my house for six weeks, I am not subject to the Workmen‘s Compensation Act. (Section 118[2].) If a farmer puts on a hired hand for the same length of time, medical and hospital coverage must be provided. Where is the discrimination?” Gallegos v Glaser Crandell Co, supra (BRENNAN, J., dissenting), pp 678-679.
Defendants’ briefs do not set forth or necessarily suggest in the Statements of Questions Involved (GCR 1963, 813.1, 854) that Gallegos was incorrectly decided or should be overruled. Eisenga and his insurer stated the question as follows:
“I. DID THE COURT OF APPEALS ERR IN DECIDING THAT PROTECTIONS GUARANTEED CERTAIN SMALL AGRICULTURAL EMPLOYERS BY SUBSECTIONS (a), (b), AND (e) OF § 115 OF THE WORKERS’ DISABILITY COMPENSATION ACT ARE CONSTITUTIONALLY INFIRM AND THAT THE DEFENDANT, A FAMILY FARMER, IS THEREFORE LIABLE FOR WEEKLY WORKERS’ DISABILITY COMPENSATION BENEFITS UNDER SUBSECTION (a) OF § 115 OF THE ACT?”
It will be noted that no reference is made to subsection (d).
The Second Injury Fund stated the question more generally:
“DID THE COURT OF APPEALS ERR IN CONCLUDING THAT PROTECTIONS AFFORDED SMALL FAMILY FARM AGRICULTURAL EMPLOYERS BY
Court stated that Gallegos “held that the agricultural exclusion in the Worker‘s Disability Compensation Act of 1969, 1969 PA 317,
We agree with the Court of Appeals that Gallegos implicitly held that the “other than agricultural employers” clause of subsection (a) was unconstitutional. Under the analysis of both the opinion of the Court and of Justice KAVANAGH, the differentiation between employers of three or more regular employees, under subsection (a), and agricultural employers of three or more regular employees, under subsection (d), was invalid. The exclusion of seasonal agricultural workers of employers of three or more regular employees under subsection (d) being invalid, it necessarily follows that subsection (a), otherwise applicable to employers of three or more regular employees, governs and that the effort to exclude agricultural employers from the operational effect of subsection (a) is also invalid. The “other than agricultural employers” clause of subsection (a) was implicitly held invalid in Gallegos.
In sum, under Gallegos, the act applies to agricultural employers who regularly employ three or more employees without regard to subsection (d) or the agricultural limitation in subsection (a).
III
It is unclear whether Eisenga had three or more regular employees.14 One member of the appeal
“In the fall of 1968 he hauled potatoes for Eisenga in approximately the same manner as was the case in 1967.
“In the spring of 1969 he did a little field cultivating, probably a couple afternoons on Saturday in the spring. In the summer of 1969 Mr. Eastway worked part-time for the Emerald Tree Company about four or five weeks. In June of 1969 during the haying season he worked for Eisenga two or three days per week possibly as much as five to seven hours per day. Following this in the summer of 1969, Mr. Eastway started painting houses with a friend of his about four days a week, and, during this period of time, he would on occasion work four to five hours per week for Mr. Eisenga. Mr. Eastway stopped painting houses when his partner in the painting went back to school in late August of 1969. Following that Mr. Eastway worked at Cadillac Malleable for four days. Following that Mr. Eastway worked for Mr. A. Johnson at least forty hours per week at a salary of $120 per week, and this is in September of 1969, including the week of 9/30/69. While working for Mr. Johnson, he worked but the one day for Mr. Eisenga, that being the day of the accident when he worked starting at noon on the day of the accident and worked until the time of the accident.
“II.
“Reference Mr. Eisenga, there are the following sons:
“1. Bruce, born April 1, 1944. Bruce did not live with the Eisengas in the year 1969 and had his own farm and would help the Eisengas on occasion. He would come and work a bit in the morning and then a bit in the evening. The estimation of the hours worked by Bruce was between ten and twenty hours per week. Bruce was paid $150 every 2 weeks for 52 weeks each year including the year 1969.
“2. The other son, Nelson, date of birth July 8, 1950 and living at 143 Woodland Drive in Cadillac, Michigan, did live at the home of the Eisengas in 1969, is listed as a dependent of Mr. and Mrs. Eisenga on their 1969 income tax record and left the Eisengas’ residence in late August of 1970. He was on a [sic] $80 per week salary for full-time work at the Eisengas from the time of his graduation from high school in June of 1968. Nelson was in the National Guard and away from the Eisengas’ farm for five months, including January through June of 1969. While Nelson was gone, Mr. Willis Blackledge, a neighbor of the Eisengas, did some of the milking at the Eisengas and worked approximately three to four hours per day at most.
“There were two seasons of the year when there would be a group of people working at the Eisengas’ farm, and they are as follows:
“1. The haying season lasting two to three weeks when they would have four to five people working and probably each working a full 40 hr. week.
“2. The potato season which lasted two or two and one-half weeks
when they would have eight to ten people working with the majority of them being students working after school. Each working from 18 to 20 hrs. per week.”
“ADDENDUM TO THE PROPOSED STIPULATION OF FACTS
“I.
“The calendar seasons are as follows:
“1. The first haying season would last approximately two weeks starting at the end of June and going through the middle of July.
“2. The second haying season would occur in late August and would last for approximately one week.
“3. The potato season starts at the end of September and lasts until approximately the middle of October, a period of two to two and one-half weeks.
“II.
“The son, Nelson, while working full-time [approximately 40 hours per week] at the Eisengas during the period previously spelled out in the Proposed Stipulation of Facts, would work days of up to ten (10) hours in his work for his parents.”
“Without considering defendant‘s son Nelson, we find that for purposes of compensation coverage, defendant is a private employer under section 115(a) who regularly employed three or more employees at one time, as per the stipulation of facts pertaining to not only his away-from-home son Bruce, but the extra employees during the haying and potato seasons each year. Defendant is thus liable for payment of benefits to plaintiff as set forth in the referee‘s order.”
While there were still other issues, the bulk of Mr. Richardson‘s opinion was devoted to a consideration of the scope of the holding in Gallegos. Member William C. Marshall, Jr., filed a separate opinion stating:
“I concur with my associate‘s opinion and result in this case except that I cannot endorse his position that Gallegos v Glaser Crandell Co, 388 Mich 654 (1972), is concerned only with the constitutionality of
The opinion continues with a discussion of Gallegos but does not specifically advert to whether Eisenga had three or more regular employees.
Member Robert W. Kehres’ opinion was denominated “concurring in result with Member Richardson.” He agreed with Mr. Marshall regarding the scope of Gallegos but did not specifically advert to whether there were three or more regular employees.
The Court of Appeals stated:
“In our view, the Gallegos Court, at least implicitly, declared that all distinctions between private and agricultural employees violate
We have considered the defendant‘s family farm argument. While the Legislature may have had the family farmer in mind in drafting subsection (e), providing that the term agricultural employee does not include certain resident members of the family, subsection (d) would exclude seasonal
the equal protection clause of the Fourteenth Amendment. Here, plaintiff sustained injuries during the potato season, a period in which defendant Eisenga, regularly employed three or more employees at one time. Under
Eisenga and his insurer contend that until this cause reached the Court of Appeals on remand from this Court for consideration as on leave granted, 413 Mich 872 (1982), the parties considered the equal protection question “in terms of whether Mr. Eisenga‘s sons could be counted in determining the number of employees on the farm or whether the seasonal workers could be counted as regular employees so as to bring the Eisengas within the provisions of
We do not find any decision of this Court on the question of what constitutes regular employment. See generally
The question whether the exclusion of resident members of an agricultural family set forth in subsection (e) is applicable to subsections (a) or (b) as well as subsection (e)18 need not be decided if
“I.
“Steven Eastway probably started working in 1967 for Mr. Eisenga,
We also note that the defendants in the instant case have not provided a definition of a family farmer although it is clear that they regard Eisenga to be a family farmer. The number of persons employed by Eisenga is set forth in the stipulations (see fn 14). We would not, however, be justified in reading into the act a definition of a family farmer which essentially characterizes Eisenga, but not other farmers whose operations vary somewhat in terms of the number of employees and hours worked.
While it is indeed arguable that Gallegos declared that the agricultural exemption set forth in subsections (b) and (e) was unconstitutional, we need not decide that question at this time. Gallegos adverted to subsection (e) stating:
“Nor are the exclusions from the act allowed agricultural employers under § 115(d) remedied by the treatment accorded agricultural employees under § 115(e).
*
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“Finally, the argument that § 115(e) is especially tailored to meet
The case should be remanded to the WCAB for further proceedings consistent with this opinion.
KAVANAGH, J., concurred with LEVIN, J.
the problems of the small farmer and his occasional employees fails to account for the need for similar treatment as to the small businessman—grocer, clothier, butcher—or as to the small contractor—plumber, carpenter, roofer—or as to numerous other categories of small employers and their employees who are not accorded this treatment.” Gallegos v Glaser Crandell Co, supra, pp 667-668.
Gallegos does not appear to have directly involved the constitutionality of subdivision (e) or of the exclusion in counterpart subsection (b). The only employee in the instant case with the requisite 35 hours and 13 weeks was Eisenga‘s son residing in his house.