336 P.3d 12
Or. Ct. App.2014Background
- Broadway Cab LLC seeks review of an ALJ order affirming a department unemployment tax assessment for 2008-09.
- ALJ held Broadway’s drivers provided services for remuneration and were not independent contractors under ORS 670.600(2).
- Broadway argues drivers did not perform services for remuneration or were independent contractors.
- Department cross-petitions, challenging the tax amount and requesting guidance under ORS 657.683(4).
- Court affirms Broadway’s petition, but reverses and remands on the department’s cross-petition for reconsideration of the amount.
- Facts describe Broadway’s contracts with public entities (e.g., TriMet) and with drivers (fee structure, training, dispatch, and vehicle control) that tied drivers to Broadway’s obligations.
- Court notes ALJ erred in not affirming/modifying/setting aside the assessment as ORS 657.683(4) requires.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether drivers performed services for remuneration under ORS 657.030(1) | Broadway: no services performed for Broadway for remuneration | Department: drivers provided services for Broadway’s benefit and remuneration | Yes, services were for remuneration |
| Whether drivers were independent contractors under ORS 670.600(2) | Broadway: drivers meet independent contractor criteria | Department: did not establish independently established business | No; drivers not independent contractors |
| Whether the department’s tax assessment was correct and properly addressed | Broadway rebutted the accuracy presumption; assessment incorrect | ALJ should affirm/modify/set aside per ORS 657.683(4) | ALJ erred by not affirming/modifying/setting aside; remanded for reconsideration of amount |
| Whether the ALJ properly provided guidance under ORS 657.683(4) | Broadway seeks a remedy beyond mere declaration of incorrectness | Department seeks proper corrective action | Remand; ALJ must affirm, modify, or set aside the assessment per statute |
Key Cases Cited
- Necanicum Investment Co. v. Employment Dept., 214 Or App 385 (2007) (definition of service; broad interpretation for unemployment)
- Gross v. Employment Dept., 237 Or App 671 (2010) (remuneration can flow through employer; payments to arising from services for employer)
- Portland Columbia Symphony v. Employment Dept., 258 Or App 411 (2013) (authority to hire and fire; independently established business factors)
- AGAT Transport, Inc. v. Employment Dept., 256 Or App 294 (2013) (employment/contractor analysis; broad statutory interpretation)
- NMC (National Maintenance Contractors) v. Employment Dept., 226 Or App 473 (2009) (broad construction of employment definitions; service provided for third parties)