Edward John AUGER, III Plaintiff-Appellant, v. ABB FLEXIBLE AUTOMATION, INC., Defendant-Appellee, 34 F. App'x 160

JONES, Circuit Judge. Plaintiff Edward J. Auger, III (“Auger”) brought this negligence action against defendant ABB Flexible Automation, Inc. (“ABB”) for damages incurred while Auger was a temporary worker at ABB’s job site. ABB moved for

summary judgment based on the argument that it was a “co-employer” of Auger and therefore the exclusive remedy provision of the Michigan Worker’s Disability Compensation Act (“the Act”) barred plaintiffs negligence action. The district court granted

summary judgment to the defendant. On appeal, Auger argues that the district court erred because

(1) ABB was not his “co-employer” but rather had only “retained control” of his employment and (2) the facts create at least conflicting inferences as to his employment status which should be decided by a trier of fact. For the reasons stated below, we reverse and remand the case for a jury trial. I. BACKGROUND In March 1998, Auger, a Michigan resident, began working as a pipe fitter at MTE Controls, LLC (“MTE”). MTE specializes in the installation of pneumatic, hydraulic and electrical control systems. ABB, a New York corporation, designs and manufactures product assembly lines.

ABB contracted with General Motors Corporation to design and manufacture an engine block line, and, in the spring of 1998, ABB was in the process of assembling the line at its plant in Warren, Michigan. ABB contracted with various companies for trained workers to assemble the line. ABB contacted MTE to obtain additional manpower to complete the General Motors project. ABB indicated that it needed MTE pipe fitters to complete the conveyor line project. MTE submitted hourly rate quotations for its various categories of pipe fitters.

From March 10, 1998 through June 26,1998, MTE workers assisted ABB with the conveyor line project. MTE billed ABB on a weekly basis for the pipe fitters used by ABB. Auger was one of the MTE pipe fitters on the GMC/ABB project. On May 22, 1998, Auger was tagging pneumatic lines near a conveyor belt. While tagging the line, Auger leaned in towards the unguarded conveyor and was pulled into it. The accident mangled his right hand and arm, rendering both useless. On December 17, 1998, Auger filed suit seeking to recover against ABB for negligence based in part on its “retained control” of the project.

At the close of discovery, ABB filed a Motion for

Summary Judgment, asserting that it was Auger’s “joint employer” and thus shielded from liability by virtue of the exclusive remedy provision of the Act. In opposition, Auger cited the district court to several record references which he asserted could lead a jury to reasonably conclude that Auger was not an employee of ABB but rather was on the job exclusively as an employee of MTE. The district court granted ABB’s motion.

The court applied the “economic reality test” for determining whether an employer/employee relationship exists and concluded that ABB was Auger’s “joint employer.” Thus, the court determined that the exclusive remedy provision of the Act barred plaintiffs negligence claim. The court also noted that whether MTE was a labor broker was immaterial to its analysis. On appeal, Auger argues that the district court’s grant of

summary judgment was erroneous because there are genuine issues of material fact as to whether he was an employee of ABB. Auger timely appealed to this court. II. DISCUSSION A.

Summary judgment The sole issue on appeal is whether multiple conflicting inferences regarding Auger’s employment status precludes

summary judgment. We review a grant of

summary judgment de novo. Terry Barr Sales Agency, Inc. v. All-Lock Co., 96 F.3d 174, 178 (6th Cir.1996).

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Terry Barr, 96 F.3d at 178. No genuine issue for trial exists when “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Moreover, this court must review the record, and any inferences derived therefrom, in the light most favorable to the non-moving party. Id. Accordingly, “when the non-moving party presents direct evidence refuting the moving party’s motion for

summary judgment, the court must accept the evidence as true.” Adams v. Metiva, 31 F.3d 375; 382 (6th Cir.1994). Whether a company is a particular worker’s employer under the Act is a question of law for the courts to decide if the evidence “is reasonably susceptible of but a single inference.” Nichol v. Billot, 406 Mich. 284, 279 N.W.2d 761, 767 (Mich. 1979). In a close case, however, where the factual issues cannot be easily resolved, the issue should be submitted to a trier of fact. Clark v. United Tech., 459 Mich. 681, 594 N.W.2d 447, 454 (Mich.1999). B.

Auger’s employment status The key question in this case is whether Auger was an employee of ABB. ABB argues that because a labor broker/customer relationship existed between itself and MTE, then ABB was a co-employer of Auger. Therefore, as a co-employer, ABB claims that Auger’s recovery is limited by the exclusive remedy provision of the Act, Michigan Compiled Laws (“M.C.L.”) § 418.131, and it is entitled to

summary judgment as a matter of law. In opposition, Auger contends that no labor broker/customer relationship existed, rather ABB and MTE were in a general contractor/subcontractor or principal/agent relationship. Moreover, he argues that, under the “economic reality test,” the totality of the facts and circumstances create at least conflicting inferences that he was not an employee of ABB. Therefore, he pleads a negligence liability theory based on the doctrine of retained control and asserts that the remedy issue should be submitted to a jury. 1. The Act

Section 418.131 of the Act provides that “the right to the recovery of benefits as provided in this act shall be the employee’s exclusive remedy against the employer.” The Michigan courts have traditionally applied an “economic reality test” to determine the existence of an employer/employee relationship under the Act. See e.g., Clark, 594 N.W.2d at 451. However, as a condition precedent to applying this test, Michigan law requires a determination of whether a labor broker/customer relationship exists. Kidder v. Miller-Davis, 455 Mich. 25, 564 N.W.2d 872, 879-80 (Mich.1997).

The district court did not address whether MTE was a labor broker or whether MTE and ABB were in a labor broker/customer relationship. Therefore, as determination of these questions is material to the outcome of this matter, we address the pre-condition first. 2. Labor broker/customer relationship Auger denies that MTE was a labor broker and that he was assigned by MTE as a temporary worker in the typical labor broker/customer relationship. Rather, he argues that ABB was a general contractor and MTE acted as an outside contractor, brought into ABB’s plant to provide specialty pipefitting work.

As such, Auger asserts that the relationship between ABB and MTE was that of principal and agent rather than labor broker/customer. Under Michigan law, it is well settled that in a situation involving a labor broker, the customer (or entity seeking temporary help) is considered a “co-employer” of the individual worker. Farrell v. Dearborn Mfg. Co., 416 Mich. 267, 330 N.W.2d 397, 400 (Mich.1982). Generally, a labor broker employs contract workers and is in the sole business of supplying the workers as temporary labor to its customers. See Kidder, 564 N.W.2d at 877; see also Renfroe v. Higgins Rack Coating & Mfg.

Co., 17 Mich.App. 259, 169 N.W.2d 326, 328 (Mich.Ct.App.1969) (the worker arrives at the labor broker, signs a tax withholding form, and waits to be sent out as needed). The typical labor broker/customer relationship follows this scenario: The customers of a labor broker typically call in their employment needs on a daily basis, and workers are sent by the broker to fill these needs. After arriving at the place of business, the worker is subject to the control and authority of the customer and the customer’s supervisory personnel.

The customer has the power to discharge the employee from the daily work assignment and can refuse to accept a worker sent by the broker. The customer does not pay the employee directly. Rather, the labor broker pays the employee and includes as part of its charge to the customer amounts to cover its expenses for compensation premiums, social security, and other taxes. Farrell, 330 N.W.2d at 400. In contrast, a general contractor and subcontractor are in a principal/agent relationship. Johnson v. Bechtel Assoc. Prof'l.

Corp., 717 F.2d 574, 580 (D.C.Cir. 1983), rev’d on other grounds, 467 U.S. 925, 104 S.Ct. 2827, 81 L.Ed.2d 768 (1984), rehearing denied by 468 U.S. 1226, 105 S.Ct. 26, 82 L.Ed.2d 919 (1984). An agent is one who is authorized by another (principal) to act on his behalf. An principal/agent relationship is characterized by the presence of two elements. First, there must be an indication by the principal that the agent will act on his behalf and subject to his control. Second, there must be a manifestation of consent by the agent so to act. Restatement (Second) of Agency § 1(1958); Rose v.

Silver, 394 A.2d 1368 (D.C.App.1978); accord Lott v. Burning Tree Club, Inc., 516 F.Supp. 913, 917 (D.D.C.1980) (police are not agents of Country Club because not designated as such and Club exercised no control over the police). The extent of control and consent is evidenced both by the terms of the contract and by the actual dealings between the parties. In a general eon-tractor/subcontractor relationship, the general contractor (the principal) agrees to allow the subcontractor (the agent) to act on its behalf.

In order to effectuate this agreement, the general contractor and subcontractor must manifest their consent to act according to the proposed agreement. Here, there are both similarities and differences among between the above descriptions of a labor broker/customer relationship and the principal/agent relationship. Auger was sent by MTE to fill a temporary need at ABB on a time-only basis, that is, ABB paid “X rate for each hour each individual put in their plant.” J.A. at 79. ABB had the power to discharge Auger and to not accept him as a worker. ABB paid MTE rather than paying Auger directly.

In contrast, Arthur Boudreau, the MTE supervisor for the pipefitting operation, testified that, depending on the job, MTE provided some services on a time-only basis and other services on a time and materials basis. J.A. at 144. As such, MTE is in the business of supplying labor, materials, or equipment, which goes beyond the typical labor broker services. Boudreau also testified that at ABB the employees were always working for MTE, under MTE control and supervision, just at a different location. J.A. at 146.

While at ABB, Auger worked under the direct supervision of Joseph Seedorf (“Seedorf’), an MTE supervisor, not under the supervision of ABB. Seedorf was on site and in charge of Auger’s work. Auger reported to Seedorf at the beginning of his shift, received instructions as to how to do the job from Seedorf, sought Seedorf s approval and review of his work, and consulted with him regarding other tasks. ABB claims that its supervisor Brian Bourdeaux (“Bourdeaux”), had ultimate control over the MTE workers.

The record reflects, however, that Bordeaux never actually communicated with Auger but invariably gave orders and instructions through Seedorf. In fact, there is no evidence that plaintiff was ever directly instructed or controlled by ABB’s employees. Thus, there is also a clear question of control here. This is the type of close factual case illustrated by the Michigan Supreme Court in Clark. See 594 N.W.2d at 454 (reasonable questions of which company hired worker, paid worker, and supervised worker are for trier of fact).

The record does not indicate a distinct answer as to whether MTE was a labor broker or a subcontractor to ABB. Thus, a genuine issue of material fact exists as to whether MTE and ABB were in a labor broker/customer relationship or in a principal/agent relationship. C. Economic reality test The resolution of the labor broker/customer question is not the end point of analysis.

Auger further argues that under the “economic reality test” traditionally used by Michigan courts to determine employer/employee relationships, there are several genuine issues of material fact as to whether he was an employee of ABB such that the defendant is protected by the Act. We agree. Under Michigan law, the economic reality test includes four elements: (1) control of a worker’s duties; (2) the payment of wages; (3) the right to hire and fire and the right to discipline; and, (4) the performance of the duties as an integral part of the employer’s business towards the accomplishment of a common goal.

Askew v. Macomber, 398 Mich. 212, 247 N.W.2d 288, 290 (Mich.1976). No single element is controlling, and the totality of the circumstances must be considered to determine if the employer/employee relationship exists. Farrell, 330 N.W.2d at 403. 1. Control of Duties Plaintiff and defendant agree that ABB retained some control over Auger. The pertinent question is the extent of that control.

Auger argues that the amount of control exercised over him by ABB meets the minimum threshold for negligence liability under the doctrine of “retained control.” He further asserts, however, that the facts create conflicting inferences as to the level of control such that it is unclear whether ABB was a co-employer. Therefore, he argues this question should go to a jury. By contrast, ABB asserts that it shared sufficient control over Auger and the other MTE workers that it was' a “joint employer” with MTE and therefore protected by the Act.

Under Michigan law, control is a required element of a cause of action to impose negligence liability under the doctrine of “retained control.” Candelaria v. B.C. General Contractors, Inc., 236 Mich. App. 67, 600 N.W.2d 348, 352 (Mich.Ct. App.1999). Under the doctrine, an owner or general contractor may be held liable if it exercises “at least partial control” over an independent contractor. Burger v. Midland Cogeneration Venture, 202 Mich. App. 310, 507 N.W.2d 827, 831 (Mich.Ct. App.1993). General oversight or monitoring of the subcontractor’s employees is insufficient. Id.

In addition, the control and direction must be over “actual ... work, which is not equivalent to safety inspection or oversight.” Samodai v. Chrysler Corp., 178 Mich.App. 252, 443 N.W.2d 391, 393 (Mich.Ct.App.1989) (emphasis in original). Moreover, the court must “‘carefully distinguish between authoritative direction and control, and mere suggestion as to details or the necessary cooperation, where the work furnished is part of a larger undertaking.’ ” Smith v. Martindale, 81 Mich.App. 682, 266 N.W.2d 49, 53 (Mich.Ct.App.1978) (quoting Standard Oil Co. v.

Anderson, 212 U.S. 215, 222, 29 S.Ct. 252, 53 L.Ed. 480 (1909)). In Clark, the Michigan Supreme Court addressed the question of whether dual employment status should be decided by a jury when the plaintiff raises factual questions regarding control under the economic reality test. 594 N.W.2d at 454. In that case, the plaintiff was the employee of a corporation but often worked at a sister company owned by the principal shareholders of the corporation. Id. at 453.

Plaintiff was injured while working at the sister company (the defendant in the action) and defendant argued that it was a co-employer and therefore protected by the Act. Id. Plaintiff claimed that, although he was supervised by a company supervisor when on the company site, he was always subject to recall by his actual employer, the corporation. Id. Finding “numerous conflicting inferences” under the test, including which entity had the right to supervise the plaintiff, the court held that whether plaintiff was an employee of the defendant was appropriately determined by a trier of fact rather than on

summary judgment. Id. Similarly, in Smith, the Michigan Court of Appeals also addressed the issue of control under the test. 266 N.W.2d at 53. In that case, a crane operation company supplied a crane and crane operator to the plaintiffs employer for use on a construction site. Id. at 51. The plaintiff was injured due to allegedly negligent operation of the crane by the leased operator. Id. The defendant claimed that the plaintiff and crane operator were co-employees because the crane operator was a “borrowed servant” of the plaintiffs employer and took directions from the employer. Id.

The court determined that the crane and the crane operator were a leased unit and the plaintiffs employer had no control over the operator other than providing hand signals to direct the movement of the crane. Id. at 53. As such, the court reversed a grant of

summary judgment for the defendants on the control issue. In the present case, Auger was directly supervised on-site by Seedorf, the MTE supervisor. As stated above, although defendant claims that its supervisor Bourdeaux had ultimate control over the MTE workers, the record indicates that Bordeaux communicated with Auger through Seedorf. There is no evidence that plaintiff was ever directly instructed or controlled by ABB’s employees. Nevertheless, the district court found that ABB possessed some level of retained or supervisory control over the plaintiff.

The court concluded that punching the time clock, receipt of gate passes, the showing of safety videos, and the taking of a safety test established sufficient control to find that ABB was a co-employer of Auger as a matter of law and therefore entitled to

summary judgment. These elements cited by the district court are insufficient to resolve the control issue. See Samodai, 443 N.W.2d at 393 (owner must direct actual work, not just engage in safety inspections and general oversight). Under these facts, considerable uncertainty remains as to whether the degree of control retained by ABB rises to the requisite level for imposing liability on the defendant or absolves ABB from responsibility for Auger’s injuries. 2. Payment of Wages It is undisputed that MTE paid Auger’s wages. ABB argues, however, that MTE was simply a “conduit” for ABB’s payment to Auger.

The district court held that ABB could have satisfied the payment of wages factor of the economic reality test by showing that ABB paid MTE on a time and materials basis and that Auger’s wages came from ABB. In labor broker cases, courts have suggested that the “conduit” theory relied upon by ABB can supply a sufficient basis for finding payment.

See Kidder, 564 N.W.2d at 879-80 (holding that labor broker was a payment conduit for defendant because the labor broker’s workers worked for both the customer and the labor broker and that a labor broker and its customer both are subject to, and protected by, the exclusive remedy provision of the Worker’s Disability Compensation Act). Under the “conduit” theory, a customer (in a labor broker scenario) does not pay the labor broker’s workers directly. Instead, the customer reimburses the labor broker dollar for dollar for its services and the labor broker pays its workers’ wages. Id.

However, the reimbursement of wages in the “conduit” method is as much a typical incident of a “time and materials” contract — a contractor/subcontractor scenario — as it is of a labor broker-customer relationship. Nat’l Micrograph ics Sys., Inc. v. United States, 38 Fed. Cl. 46, 48 (1997). A literal analysis of the language of the economic reality test suggests that this case should not be analyzed as a conduit scenario. Rather, this case is factually similar to Smith, in which the court said: Martindale’s wages were paid to him by R.L. White. White also deducted social security and income taxes from his check.

Martindale did not receive any money from Freedland Steel. Freed-land claims that it was required to pay R.L. White for the number of hours worked by Martindale at the construction site and that it was in effect paying Martindale’s wages. However, we do not agree. Martindale was paid by a check issued by R.L. White and White was responsible for the withholding taxes. We hold that the most reasonable view of this relationship is that R.L. White paid Martindale’s wages. 266 N.W.2d at 53. Here, MTE submitted invoices to ABB for the project labor.

However, the Michigan Supreme Court has held that a general contractor is not the injured party’s dual employer where the costs paid to the subcontractor included the plaintiffs salary, travel expenses, and workers’ compensation premiums. Schulte v. Am. Box Board Co., 358 Mich. 21, 99 N.W.2d 367, 368-69 (Mich.1959). In the instant case, it is unclear whether the fees that were paid to MTE included any overhead expenses. In Clark, plaintiff was paid by his general employer. The defendant argued that the payroll check was funded by money generated by the defendant.

Nonetheless, the Michigan Supreme Court held that a question of fact existed as to who paid the plaintiff because wages were derived from commingled funds of two companies. Clark, 594 N.W.2d at 454. Similarly, the Michigan Supreme Court has also held that the payment of wages by an alleged dual employer is insufficient to find dual employment.

See Askew, 247 N.W.2d at 290. (finding that plaintiff went “to the bank to receive her weekly pay, but the check was drawn on the employer’s estate, a separate IRS account” and that such an arrangement “comprised no more than a transfer of the employer’s funds to plaintiff.”). In the instant case, it is unclear which company was actually responsible for the payment of Auger’s wages. In light of this ambiguity, we lack sufficient evidence to draw a legal conclusion with regard to the payment of Auger’s wages.

Thus, the fact that MTE paid Auger’s wages creates conflicting inferences: whether there was a labor broker relationship or whether a contractor/subcontractor relationship existed. Accordingly, this case should have been submitted to a jury because there are, at a minimum, conflicting inferences of who paid Auger’s wages. The district court erroneously analogized this case to the labor broker line of cases because there is insufficient evidence to conclude that a labor broker was involved.

At a minimum and consistent with Clark, the district court should have held that conflicting inferences with regard to wage payment could be derived from the facts and should have allowed the jury to decide the issue. 3. Right to Hire, Fire, and Discipline The district court concluded that the evidence was uncontroverted that ABB met the hiring, firing and discipline prong of the economic realities test. On appeal, Auger argues that there was no evidence to contradict the fact that MTE was the only entity with the right to hire, fire and discipline him.

We believe that there are conflicting inferences with regard to this element of the economic reality test. First, Auger was hired by MTE. ABB asserts, however, that it had the authority to fire Auger because it had the right to send Auger home. ABB bases its assertion on labor broker cases suggesting that the right to send an employee home is equivalent to firing. See Kidder, 564 N.W.2d at 881 (holding that defendant could accomplish indirectly that which it could not do directly and defendant had the right to order labor broker to remove unsatisfactory workers).

Sending an employee home is not synonymous with firing. Firing is the cessation of employment. See Wiltz v. M/G Transp. Servs., Inc., 128 F.3d 957, 963 (6th Cir.1997) (stating that the Department of Labor has explained that the term “termination” is “to have [its] common sense meaning” as the “permanent cessation of the employment relationship ... ”) (quoting 54 Fed.Reg. 16,047 (1989)). In Clark, the Michigan Supreme Court found that the hiring by one entity was sufficient to create a question of fact even in the face of evidence that the plaintiff was hired to work for both entities. 594 N.W.2d at 454.

In addition the court of appeals in Smith, held that objective facts relevant to this factor must be considered instead of an employer’s inchoate unexercised rights. The court said: Thus, although Martindale could be asked to leave the job, any disciplining was up to White. We do not agree with defendants that the right of removal is equal to the right to fire, hire and discipline. The firing and discipline of Martindale was up to R.L. White, not Freed-land. Smith, 266 N.W.2d at 53.

In the present case, ABB does not dispute that MTE had the ultimate authority to discipline Auger or that ABB never exercised its right to send an MTE pipe fitter home. These objective facts regarding this factor illustrate a genuine issue of a material fact as to who had the right to hire, fire and discipline Auger. Under the facts of the case before us, we are unable to infer that ABB could fire Auger. Accordingly, these conflicting inferences surrounding this factor require that the exclusive remedy issue be submitted to a jury.

Moreover, third-party liability cases also distinguish between the contractual right to discharge and the right to hire, fire and discipline. In Erickson v. Pure Oil Corp., 72 Mich.App. 330, 249 N.W.2d 411 (Mich.Ct.App.1976), the evidence suggested that the defendant, pursuant to contract, reserved the right to terminate those who did not comply with its regulations. The Court of Appeals said: However, in order to retain effective control over the project, the owner must do more than retain contractual control. Funk v. General Motors Corp., 392 Mich. 91, 106-08, 220 N.W.2d 641 (1974).

If contractual control were held to be sufficient, nearly every owner of a construction site would be subject to liability for the on-the-site injuries to subcontractors’ employees. We reach this conclusion since every owner retains the inherent right to discharge, subject to payment of damages, the general contractor who does not perform in accordance with the industry’s standards. Id. at 414-15.

Moreover, in Schulte, the court held that even though the defendant retained by written contract the right to remove the plaintiff from the job, and to object to the plaintiff’s conduct or workmanship, such evidence was insufficient to support the defendant’s assertion that plaintiff was its employee. 99 N.W.2d at 368, 369. The district court erroneously concluded that ABB had the right to discharge Auger.

If the right to discharge is insufficient to support a finding of retained control, similarly, such a right is insufficient to permit a finding, as a matter of law, of employer control sufficient to grant dual immunity. Based upon the facts in the record, we are unable to reach a dispositive conclusion with regard to which company — ABB or MTE — had the right to hire, fire, and discipline Auger because MTE hired Auger and possessed the sole authority to discipline him but ABB retained the right to send Auger home. Consequently, the district court should not have disposed of this issue as a matter of law.

At a minimum, there was sufficient evidence of a conflicting inference regarding the degree of control that ABB and MTE could exercise. Accordingly, the district court’s failure to submit this issue to the jury was in error. 4. Common Objective The district court found that ABB could not have completed its project on time without employing MTE workers. The court concluded that since MTE workers were working towards the completion of the project, the common objective prong of the economic realities test was met. Under the common objective prong, the relevant inquiry is “whose work is being done?” See Buskirk v.

Ide, 302 Mich. 154, 4 N.W.2d 504, 508 (Mich.1942). (“The controlling factor is: For whom is the work being performed, and who had the power to control the work and the employee?”). In the present case, MTE was hired to do pipe fitting for ABB after it became apparent that J & J Hydraulics (“J & J”) could not finish its contracted work in a timely fashion. Effectively, ABB hired MTE to perform the very task for which J & J had a fixed sum contract to perform. Thus, it is clear that ABB and MTE were working towards the common objective of completing the General Motors project. 5.

Totality of the circumstances Although Michigan law requires that a labor broker/customer relationship exist as a condition precedent to application of the economic reality test, the district court failed to ascertain whether MTE was a labor broker. Instead, the district court analyzed this case under the economic reality test without the requisite preliminary determination of MTE’s status as a labor broker. We believe that the district court erred by applying case law dependent upon a labor broker/customer relationship before determining whether MTE was a labor broker.

This factual determination is essential to the proper outcome of this case. Moreover, in the instant case, the status of ABB as plaintiffs employer is not reasonably susceptible to a single inference. The facts in the record create conflicting inferences as to whether ABB was a general contractor or whether ABB was a customer. Even if ABB meets the right to hire, fire and discipline and common objective prongs of the economic reality test, the facts relevant to the other two factors of the test are susceptible of conflicting inferences.

Under the facts of this case, it is unclear that ABB’s control is sufficient to meet the economic reality test as a matter of law. In addition, the facts are insufficient to support a finding that ABB paid Auger’s wages. Although we cannot definitively assert that a contractor/subcontractor relationship exists in this case, at a minimum, analysis of the facts show conflicting inferences on the issue of dual employment. Where, as here, there are conflicting inferences on the issues of control and, payment, Michigan law mandates that the issue of dual employment status be submitted to a jury.

Therefore, the district court’s order of

summary judgment was erroneous. III. CONCLUSION Accordingly, we reverse the district court’s judgment and remand this case for jury trial on the exclusive remedy issue in accordance with Michigan law. . Although ABB is a New York corporation, it has its principal place of business in New Berlin, Wisconsin and is duly qualified to conduct business in the State of Michigan. Thus, we have jurisdiction over the subject matter of this action as it is a controversy between different citizens of different states and the jurisdictional amount in controversy exceeds the statutory minimum. 28 U.S.C. §§ 1291, 1332(a)(1) (2000).