STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5643

January 30, 1980

WORKER'S COMPENSATION:

Students obtaining work experience from private employers

SCHOOLS AND SCHOOL DISTRICTS:

Work experience program

Unpaid students participating in work experience as part of a vocational educational program of a school district are not the employees of those employers whose work site is used to provide work experience for purposes of the Worker's Disability Compensation Act of 1969.

Honorable Bobby D. Crim

State Representative

State Capitol

Lansing, MI

You have requested my opinion on a question which may be phrased as follows:

Personnel in the Michigan Department of Education have informed this office that public school vocational education is provided in three forms: school classroom instruction; work experience; and cooperative education. Obviously, vocational education students receiving classroom instruction are not employees under the Worker's Disability Compensation Act of 1969, 1969 PA 317, MCLA 418.101 et seq; MSA 17.237(101) et seq. On the other hand, vocational education students involved in cooperative education programs performing services as paid employees are clearly employees for purposes of 1969 PA 317, supra.

Students receiving work experience on the site of an employer are unpaid. Work experience is for a period of short duration, generally a few hours per week for four to six weeks. The purpose is to acquaint the student with the kind of work involved in an occupation rather than to give the student any substantial experience in the occupation. The work experience is designed as a learning experience for the student rather than as an aid to the business enterprise of the employer. Activities performed by the student at the work site of the employer are under the supervision of regular employees of the employer. The student does not displace a regular employee who would otherwise be hired to perform the student's activities. The benefits accruing to the employer from the student's activities, if any, are matched or exceeded by the time spent supervising the student by a regular employee of the employer. Thus, there is no net gain in productivity for the employer.

In 1969 PA 317, supra, Sec. 161, ^(a1) the legislature has defined an employee as follows:

In Betts v Ann Arbor Public Schools, 403 Mich 507; 271 NW2d 498 (1978), the Michigan Supreme Court held that an unpaid student teacher in a public school was an employee for purposes of 1969 PA 317, supra. In reaching that result, the Court ruled that the student teacher was serving the school district under an appointment and that there was also an implied contract of hire. These rulings were based upon factual findings that the student performed beneficial teaching services for the school district, that while the student taught his supervising teacher was able to perform other duties for the school district, and that the student teacher was helping to provide the educational product of the school district.

In Union Lumber v Industrial Accident Commission, 12 CA2d 588; 55 P2d 911 (1936), the California court held that a vocational high school cooperative student learning a trade from a private employer was an employee for purposes of workers' compensation. In that case, the student performed services for four hours each school day for several months for the employer. Further, the employer paid a fixed amount into the school vocational fund for each student and that amount had been paid, in turn, to the injured student in question.

However, an unpaid student involved in a work experience program of short duration does not perform services for the purpose of advancing the business enterprise of the employer. Rather, the employer permits the student to obtain exposure to the work involved in a particular occupation under the supervision of regular employees of the employer. Thus, unlike the student teacher in Betts v Ann Arbor Public Schools, supra, and the paid vocational student in Union Lubmer Company v Industrial Accident Commission, supra, the work experience student does not perform services for the public or private employer providing the site for the work experience. In the absence of such services, there is no appointment or implied contract of hire for work experience students.

It is my opinion, therefore, that unpaid students enrolled in public school vocational education programs are not considered employees, for purposes of the Worker's Disability Compensation Act of 1969, 1969 PA 317, supra, of those persons or corporations whose work site is used to provide work experience for those students. This is, of course, an area that the legislature may wish to address by the enactment of appropriate legislation.

Frank J. Kelley