310 P.3d 1139
Or. Ct. App.2013Background
- Portland Columbia Symphony seeks judicial review after an ALJ affirmed a notice of tax assessment for unemployment contributions.
- The ALJ ruled petitioner’s core musicians were employees, not independent contractors, under ORS 670.600(2).
- Petitioner argues its musicians were independent contractors and not subject to unemployment tax.
- The court must decide whether the musicians meet the ORS 670.600(2) criteria for independent contractor status, focusing on direction/control and independently established business.
- The court reverses and remands, finding the ALJ misapplied the criteria and that some musicians meet the independently established business test.
- Key facts include contract forms labeling musicians as independent contractors, the nature of core positions, and representative musicians Hernandez, Bescond, Warton, and Hatton.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether musicians were free from direction and control | Petitioner argues musicians controlled means and manner | Department contends musicians were controlled by petitioner | ALJ erred; musicians were free from control over means and manner (focus on results) |
| Whether musicians independently established a business | Musicians meet at least three of five ORS 670.600(3) criteria | None meet three criteria when applied to record | Some musicians meet three criteria; the Department erred; remand to reassess status |
| Whether fixed-price contracts and hiring authority support independence | Fixed-price contracts and hiring rights show independence | ALJ concluded no independent operation | Error; risk of loss and hiring authority support independence |
Key Cases Cited
- AGAT Transport, Inc. v. Employment Dept., 256 Or App 294 (Or App 2013) (direction and control and independent contractor framework applied by Oregon courts)
- Avanti Press v. Employment Dept. Tax Section, 248 Or App 450 (Or App 2012) (oversee vs. control distinction in means and manner)
- Oregon Festival of American Music v. Emp. Dept., 204 Or App 478 (Or App 2006) (fact-specific ORS 670.600 inquiry; independent contractor status vary by record)
- Pacificab Co. v. Employment Dept., 187 Or App 693 (Or App 2003) (fact-specific ORS 670.600 inquiry; prior determinations not controlling)
- Freeman v. Employment Dept., 195 Or App 417 (Or App 2004) (judicial review standards for ORS 183 contested cases)