63 F. Supp. 3d 1289
D. Or.2014Background
- Dooney & Bourke, Inc. classified Moholt as an independent contractor and paid him on commissions from 2000 to 2012; there was no written contract detailing position or commission structure and the relationship was at-will and terminable by either party.
- Moholt served as a non-exclusive sales representative in the Pacific Northwest, handling Nordstrom accounts and other retailers, with varying commission rates and no guaranteed salary or benefits.
- Dooney paid some employees commissions while others were independent contractors; Moholt paid for his own expenses and sometimes hired merchandisers at his own expense.
- Market Week and Nordstrom-related activities were part of the sales process; Moholt contends he was promised or expected commissions on Nordstrom Rack shipments, which Dooney denies.
- In 2009, Dooney told Moholt that it would not pay commissions on Nordstrom Rack shipments; Moholt continued to work on the account and later challenged whether he should have been paid, leading to litigation filed May 31, 2013.
- Dooney moved for summary judgment on all claims; the court granted in part and denied in part, with specific determinations on Nordstrom Rack commissions, statutory penalties, and breach of contract.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Nordstrom Rack Feb 2009 commission | Moholt expected a half commission on Nordstrom Rack work. | No obligation to pay commissions on Nordstrom Rack; at-will policy change allowed. | Genuine issue for jury; Feb 2009 commission denial not dispositive. |
| Nordstrom Rack March 2009 onward | Continued work on Nordstrom Rack warranted commissions. | Policy change; no obligation to pay after March 2009. | Summary judgment granted for Dooney; no Nordstrom Rack commissions after March 2009. |
| Statutory penalty under ORS 652.150 | Failure to pay wages warrants statutory penalty. | Penalty applies only to employees, not independent contractors; disputed status unresolved. | Denied as to this claim; issue depends on employee vs. independent contractor status. |
| Breach of contract (expense reimbursements/employer share expenses) | Dooney breached implied or oral contract by not paying employee-like expenses. | No express or implied contract to reimburse; at-will, no obligation. | Granted; third claim dismissed. |
Key Cases Cited
- Rose City Transit Co. v. Portland, 271 Or. 588, 533 P.2d 339 (Or. 1975) (pension plan as unilateral contract offer; elements of employer liability)
- Albrant v. Sterling Furniture Co., 85 Or.App. 272, 736 P.2d 201 (Or. App. 1987) (employee-at-will modifications may prospectively apply)
- Duncan v. Office Depot, 973 F.Supp. 1171 (D. Or. 1997) (employer may modify terms of at-will relationship prospectively)
- Schaff v. Ray’s Land & Sea Food Co., 334 Or. 94, 45 P.3d 936 (Or. 2002) (right-to-control analysis; contractor vs employee; multiple factors)
- Jenkins v. AAA Heating & Cooling, Inc., 245 Or. 382, 421 P.2d 971 (Or. 1966) (control factors in employee vs. independent contractor determination)
- Slayman v. FedEx Ground Package System, Inc., 765 F.3d 1033 (9th Cir. 2014) (right-to-control vs economic realities tests in Oregon law)
- Cejas Commercial Interiors, Inc. v. Torres-Lizama, 260 Or.App. 87, 316 P.3d 389 (Or. App. 2013) (application of control/economic tests under Oregon law)
- Nordling v. Johnston, 205 Or. 315, 283 P.2d 994 (Or. 1955) (employer liability and control concepts)
- Wallowa Valley Stages, 235 Or. 594, 386 P.2d 430 (Or. 1963) (paradigms on control and employment status)
- Avanti Press v. Employment Dept. Tax Sec., 248 Or.App. 450, 274 P.3d 190 (Or. App. 2012) (impact of classification on wage-related statutes)