OAR 808-003-0260
Independent Contractor

(1)

Purpose of Rule. The Landscape Contractors Board, Department of Revenue, Department of Consumer and Business Services, Employment Department, and Construction Contractors Board must adopt rules together to carry out ORS 670.600 (Independent contractor defined). ORS 670.600 (Independent contractor defined) defines “independent contractor” for purposes of the programs administered by these agencies. This rule is intended to ensure that all five agencies apply and interpret ORS 670.600 (Independent contractor defined) in a consistent manner; to clarify the meaning of terms used in ORS 670.600 (Independent contractor defined); and, to the extent possible, to enable interested persons to understand how all five agencies will apply ORS 670.600 (Independent contractor defined).

(2)

Statutory Context.

(a)

ORS 670.600 (Independent contractor defined) generally establishes three requirements for “independent contractors”. One requirement is that an “independent contractor” must be engaged in an “independently established business.” Another requirement is related to licenses and certificates that are required for an “independent contractor” to provide services. A third requirement is that an “independent contractor” must be “free from direction and control over the means and manner” of providing services to others.

(b)

The specific focus of this rule is the “direction and control” requirement. See ORS 670.600 (Independent contractor defined) for the requirements of the “independently established business” test and for licensing and certification requirements.

(3)

Direction and Control Test.

(a)

ORS 670.600 (Independent contractor defined) states that an “independent contractor” must be “free from direction and control over the means and manner” of providing services to others. The agencies that have adopted this rule will use the following definitions in their interpretation and application of the “direction and control” test:

(A)

“Means” are resources used or needed in performing services. To be free from direction and control over the means of providing services an independent contractor must determine which resources to use in order to perform the work, and how to use those resources. Depending upon the nature of the business, examples of the “means” used in performing services include such things as tools or equipment, labor, devices, plans, materials, licenses, property, work location, and assets, among other things.

(B)

“Manner” is the method by which services are performed. To be free from direction and control over the manner of providing services an independent contractor must determine how to perform the work. Depending upon the nature of the business, examples of the “manner” by which services are performed include such things as work schedules, and work processes and procedures, among other things.

(C)

“Free from direction and control” means that the independent contractor is free from the right of another person to control the means or manner by which the independent contractor provides services. If the person for whom services are provided has the right to control the means or manner of providing the services, it does not matter whether that person actually exercises the right of control.

(b)

Right to specify results to be achieved. Specifying the final desired results of the contractor’s services does not constitute direction and control over the means or manner of providing those services.

(4)

Application of “direction and control” test in construction and landscape industries.

(a)

The provisions of this section apply to:

(A)

Architects licensed under ORS 671.010 (Definitions for ORS 671.010 to 671.220) to 671.220 (Civil penalties);

(B)

Landscape architects licensed under ORS 671.310 (Definitions for ORS 671.310 to 671.459) to 671.479;

(C)

Landscaping businesses licensed under ORS 671.510 (Short title) to 671.710 (Priority on satisfaction of claims);

(D)

Engineers licensed under ORS 672.002 (Definitions for ORS 672.002 to 672.325) to 672.325 (Civil penalties); and

(E)

Construction contractors licensed under ORS Chapter 701 (Construction Contractors and Contracts).

(b)

A licensee described in (4)(a), that is paying for the services of a subcontractor in connection with a construction or landscape project, will not be considered to be exercising direction or control over the means or manner by which the subcontractor is performing work when the following circumstances apply:

(A)

The licensee specifies the desired results of the subcontractor’s services by providing plans, drawings, or specifications that are necessary for the project to be completed.

(B)

The licensee specifies the desired results of the subcontractor’s services by specifying the materials, appliances or plants by type, size, color, quality, manufacturer, grower, or price, which materials, appliances or plants are necessary for the project to be completed.

(C)

When specified by the licensee’s customer or in a general contract, plans, or drawings and in order to specify the desired results of the subcontractor’s services, the licensee provides materials, appliances, or plants, including, but not limited to, roofing materials, framing materials, finishing materials, stoves, ovens, refrigerators, dishwashers, air conditioning units, heating units, sod and seed for lawns, shrubs, vines, trees, or nursery stock, which are to be installed by subcontractors in the performance of their work, and which are necessary for the project to be completed.

(D)

The licensee provides, but does not require the use of, equipment (such as scaffolding or fork lifts) at the job site, which equipment is available for use on that job site only, by all or a significant number of subcontractors requiring such equipment.

(E)

The licensee has the right to determine, or does determine, in what sequence subcontractors will work on a project, the total amount of time available for performing the work, or the start or end dates for subcontractors working on a project.

(F)

The licensee reserves the right to change, or does change, in what sequence subcontractors will work on a project, the total amount of time available for performing the work, or the start or end dates for subcontractors working on a project.

(5)

As used in ORS chapters 316, 656, 657,671 and 701, an individual or business entity that performs labor or services for remuneration is considered to perform the labor or services as an “independent contractor” if the standards of ORS 670.600 (Independent contractor defined) and this rule are met.

(6)

The Landscape Contractors Board, Construction Contractors Board, Employment Department, Department of Consumer and Business Services, and Department of Revenue of the State of Oregon, under the authority of ORS 670.605 (Rules for application of definition of independent contractor), will cooperate as necessary in their compliance and enforcement activities to ensure among the agencies the consistent interpretation and application of ORS 670.600 (Independent contractor defined).

Source: Rule 808-003-0260 — Independent Contractor, https://secure.­sos.­state.­or.­us/oard/view.­action?ruleNumber=808-003-0260.

808‑003‑0010
Written Advertising 808‑003‑0015
Application for Landscape Contracting Business and Landscape Construction Professional License 808‑003‑0018
Supervisory Responsibilities 808‑003‑0020
Business Names 808‑003‑0025
Alternative Experience 808‑003‑0030
Expiration of Application 808‑003‑0035
License Categories 808‑003‑0040
Scope of License and Subcontracting 808‑003‑0045
Change to Limited Licenses 808‑003‑0070
Exam Failure and Retake 808‑003‑0090
Employer Status 808‑003‑0095
Liability Insurance 808‑003‑0100
Licenses 808‑003‑0112
Social Security Number 808‑003‑0125
Notification of Change of Address, Employment, Partners or Owners or Ownership Interest 808‑003‑0126
Permits and Other Requirements for Work Performed by a Landscape Contracting Business 808‑003‑0130
Fees 808‑003‑0135
Date of Issue/Expiration 808‑003‑0210
Value of Landscaping Work Performed by a Residential General Contractor 808‑003‑0220
Voluntary Surrender/Resignation of License 808‑003‑0225
Terms of Probation 808‑003‑0230
Renewal of Landscaping Contracting Business and Landscape Construction Professional License 808‑003‑0231
Restoration of a License that has not been Permanently Revoked 808‑003‑0234
Inactive Military Status 808‑003‑0235
Inactive Status Generally 808‑003‑0240
Inactive Status Request at Renewal 808‑003‑0245
Inactive Status Request Other than at Renewal 808‑003‑0250
Renewal of Inactive Status 808‑003‑0255
Converting from Inactive to Active Status 808‑003‑0260
Independent Contractor 808‑003‑0265
Temporary Authorization for Military Spouse 808‑003‑0440
Notification of Conviction of a Crime 808‑003‑0450
License Fitness Standards 808‑003‑0500
Application for modified license 808‑003‑0501
Scope of work for modified license 808‑003‑0502
Modified license requirements 808‑003‑0503
Change of license category for modified license 808‑003‑0510
Application for arborist phase of license 808‑003‑0511
Scope of work for arborist phase of license 808‑003‑0512
Arborist license requirements 808‑003‑0610
Bonds, Generally 808‑003‑0611
Letters of Credit or Deposits, Generally 808‑003‑0612
Entity Name Required on Bond, Letter of Credit or Cash Deposit 808‑003‑0613
Bond, Letter of Credit or Cash Deposit Amounts 808‑003‑0614
Effective and Cancellation Dates of the Bond, Letter of Credit or Cash Deposit 808‑003‑0615
New Bond, Letter of Credit or Cash Deposit Required for Change in Entity 808‑003‑0616
Restoration of Bond, Letter of Credit or Cash Deposit after Payment on Claim 808‑003‑0620
Workers’ Compensation Insurance 808‑003‑0700
Applications, Generally 808‑003‑0710
Fees 808‑003‑0720
Change to Limited Licenses, Generally 808‑003‑0730
Passing Scores, Probationary and Owner, Managing Employee 808‑003‑0740
Translation of Exam 808‑003‑0750
Combination of Written Exam Sections and Practical Skills Modules and Written Modules 808‑003‑0760
Required Identification at Examination Sites 808‑003‑0800
Written Examination Sections 808‑003‑0810
Written Examination Testing Requirements 808‑003‑0820
Scoring of Written Examinations 808‑003‑0830
Written Examination Retakes 808‑003‑0840
Appeal of Written Exam Results 808‑003‑0850
Cheating on the Exam 808‑003‑0900
Practical Skills Testing, Generally 808‑003‑0910
Registration for the Practical Skills Test 808‑003‑0920
Practical Skills Test Modules 808‑003‑0930
Scoring of Practical Skills Test Modules 808‑003‑0940
Practical Skills Test Retakes 808‑003‑0950
Cheating on Any Portion of the Practical Skills Test 808‑003‑0960
Transfer and Conversion of Exam Scores 808‑003‑0970
Appeal of Practical Skills Test Results 808‑003‑0980
Business Practices Class Requirement 808‑003‑0985
Business Practices Class 808‑003‑0990
Requirements of Provider of Business Practices Class 808‑003‑0995
Business Practices Class Material and Subjects
Last Updated

Jun. 8, 2021

Rule 808-003-0260’s source at or​.us