274 P.3d 190
Or. Ct. App.2012Background
- Waiau entered into a written Services Agreement with Avanti to sell Avanti greeting cards in southwestern Oregon.
- Waiau worked as Avanti’s exclusive sales representative, with commissions and territory defined by Avanti.
- Avanti could change prices, products, terms of sale, and could accept/reject/modify orders; Waiau had no binding authority.
- Waiau used her own office and vehicle, set her own schedule, and sold only on commission.
- Waiau’s services for others began after November 12, 2009, though she had previously represented Avanti for One Coast.
- The Employment Department assessed Avanti unemployment taxes based on Waiau’s wages, and Avanti challenged the decision, arguing Waiau was an independent contractor.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Waiau is an independent contractor under ORS 670.600(2)(a) and OAR 471-031-0181(3)(a). | Avanti contends Waiau meets the independent contractor standard. | Employment Dept argues Waiau is subject to direction and control as an employee. | Waiau is independent contractor; reverse and remand. |
| Whether Avanti controlled the manner of Waiau’s performance. | Waiau controlled how and when she worked; Avanti did not direct the means. | ALJ’s reliance on control over terms of sale indicates control over manner. | Waiau controlled the manner of performance; Avanti did not exercise sufficient direction. |
| Whether Avanti controlled the means/resources Waiau used. | Waiau used her own means; promotional materials were not control over means. | Avanti provided materials and materials implied control over means. | Means control does not establish independence; Waiau’s means remained independent. |
Key Cases Cited
- Henn v. SAIF, 60 Or.App. 587 (Or. App. 1982) (independent contractor analysis for sales reps; right to control factors applied)
- Jenkins v. AAA Heating, 245 Or. 382 (Or. 1966) (right to reject orders evidence of independent contractor status)
- S-W Floor Cover Shop v. Natl. Council on Comp. Ins., 318 Or. 614 (Or. 1994) (codification of 'right to control' concept into ORS 670.600)
- Ponderosa Inn, Inc. v. Emp. Div., 63 Or.App. 183 (Or. App. 1983) (fact-specific test; control is a matter of degree)
- McQuiggin v. Burr, 119 Or.App. 202 (Or. App. 1993) (illustrates non-controlling factors in sales contexts)
- Kirkpatrick v. Peet, 247 Or. 204 (Or. 1967) (early application of independent contractor concepts to sales)