Appeals court rules therapists can’t be privatized

By a 2 to 1 majority, the Michigan Court of Appeals has upheld a Michigan Employment Relations Commission (MERC) decision that occupational therapists and physical therapists are not subject to the privatization provisions of PA 112, which makes bargaining over the privatization of non-instructional employees a prohibited subject. Court of Appeals Judges William Murphy and Donald Owens offered the majority opinion with Judge Kathleen Jansen offering the dissenting opinion.

The decision stems from a Pontiac Education Association case where MERC ruled that occupational and physical therapists could not be privatized until the school board bargained over the decision and the impact of the decision to privatize. MERC ordered the employees involved to be reinstated by Pontiac schools with back pay.

The Pontiac School District appealed MERC’s decision, but Judges Murphy and Owens of the Court of Appeals ruled that occupational therapists and physical therapists provide students with training and instruction that takes them out of the category of “non-instructional support personnel.” The Court also upheld the reinstatement of the employees with back pay.

This decision helps to limit the number of positions subject to privatization without bargaining.