Employment
- when service for pay excluded
- independent contractors
Source:
Section 657.040 — Employment; when service for pay excluded; independent contractors, https://www.oregonlegislature.gov/bills_laws/ors/ors657.html.
Notes of Decisions
Mere economic control which exists where a person has the right to fire another at will is not sufficient to create an employer-employee relationship. Michelet v. Morgan, 11 Or App 79, 501 P2d 984 (1972)
If facts are not disputed question of whether one is employee or contractor of another is question of law. Michelet v. Morgan, 11 Or App 79, 501 P2d 984 (1972)
Double requirement, that worker’s occupation be “independently established” and that worker be “customarily” engaged in it, clearly calls for enterprise created and existing separate and apart from relationship with particular employer, an enterprise that will survive the termination of relationship. Barger v. Morgan, 13 Or App 111, 507 P2d 821 (1973), Sup Ct review denied
Word “employment” does not incorporate the common law test for determining master-servant relationship, but rather includes persons who may be independent contractors at common law but who do not fulfill the strict exemption requirements set out. Klamath Dental Office, Inc., v. Morgan, 19 Or App 521, 528 P2d 91 (1974)
Requirements that person be free from direction and control and that person customarily engage in independent business are conjunctive rather than disjunctive; thus, if petitioner fails to sustain its burden regarding either factor, exemption requirements are not met. Timberland Sales, Inc. v. Employment Div., 20 Or App 192, 530 P2d 880 (1975), Sup Ct review denied
Where business works with multiple employers over time, business may be independent notwithstanding that business serves single employer at any given time. Europorama, Inc. v. Employment Div., 22 Or App 431, 539 P2d 1157 (1975)
Business is not “independently established” or “customarily” engaged in if continued existence of business is dependent upon continuing relationship with single employer. Europorama, Inc. v. Employment Div., 22 Or App 431, 539 P2d 1157 (1975); Revlon Services, Inc. v. Employment Division, 30 Or App 729, 567 P2d 1072 (1977); Sharp v. Employment Div., 47 Or App 733, 615 P2d 374 (1980)
In determining whether person has independently established business, person’s investment in business need only be commensurate with quantity and quality of investment necessary for that type of business and need not exceed value of equipment used. The Carpet Mill v. Employment Div., 56 Or App 552, 642 P2d 354 (1982); Pam’s Carpet Service v. Employment Div., 61 Or App 96, 656 P2d 340 (1982)
It was error for referee to consider fact that individuals were paid amounts in excess of the minimum unemployment eligibility amount from one employer as sole indicator of economic dependency. The Carpet Mill v. Employment Div., 56 Or App 552, 642 P2d 354 (1982)
Carpet installers’ testimony that they regularly turned down offers to perform services for firms other than petitioner and that when they ceased performing services for petitioner they were immediately employed with other firms was relevant to whether they were economically dependent on petitioner. Pam’s Carpet Service v. Employment Div., 61 Or App 96, 656 P2d 340 (1982)
Whether individual is engaged in independently established business is determined by consideration of 12 factors. Combined Transport, Inc. v. Employment Division, 81 Or App 31, 724 P2d 832 (1986), Sup Ct review denied, as modified by 82 Or App 127, 727 P2d 979 (1986)
It was error to presume that service performed for remuneration and not falling under exemption was employment without first determining whether service was performed for employer as defined under ORS 657.025. Employment Division v. Peddicord, 125 Or App 113, 865 P2d 384 (1993)
Exemption is available either by meeting independent contractor definition of ORS 670.600 or by meeting both requirement of freedom from direction and control and requirement of engagement in independent business. Petersen v. Employment Dept., 135 Or App 344, 898 P2d 210 (1995)
Law Review Citations
31 WLR 647 (1995)
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