ORS 657.040
Employment

  • when service for pay excluded
  • independent contractors

(1)

Services performed by an individual for remuneration are deemed to be employment subject to this chapter unless and until it is shown to the satisfaction of the Director of the Employment Department that the individual is an independent contractor, as that term is defined in ORS 670.600 (Independent contractor defined).

(2)

A finding that an individual performed services for an employing unit and earned less than the minimum amount necessary to qualify for benefits under ORS 657.150 (Amount of benefits) based on earnings from that employing unit may not be considered in determining whether the service is employment under subsection (1) of this section. [Amended by 1967 c.303 §1; 1981 c.895 §1; 1985 c.225 §1; 1989 c.762 §6; 2005 c.533 §4]

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)

657.005
Short title
657.007
Conflict with state law
657.010
Definitions
657.015
Employee
657.020
Employing unit
657.025
Employer
657.030
Employment generally
657.035
Employment
657.040
Employment
657.043
Employment
657.044
Employment
657.045
Employment
657.046
Employment
657.047
Employment
657.050
Employment
657.053
Employment
657.056
Employment
657.060
Employment
657.065
Employment
657.067
Employment
657.072
Employment
657.075
Employment
657.078
Employment
657.080
Employment
657.085
Employment
657.087
Employment
657.088
Employment
657.090
Employment
657.091
Employment
657.092
Employment
657.093
Employment
657.094
Employment
657.095
Payroll
657.097
Political subdivision
657.100
Unemployment
657.105
Wages
657.115
Wages
657.117
Wages
657.120
Wages
657.125
Wages
657.130
Wages
657.135
Wages
657.140
Wages
657.142
Inclusion of split week in calendar quarter
657.144
Notice to individual of effect of filing claim for benefits
657.146
Withholding from benefits for tax purposes
657.148
Compliance with federal requirements for collection and payment of federal taxes
657.150
Amount of benefits
657.152
Adjusting benefits to even dollar amounts
657.153
Back pay not to be reduced by benefits received
657.155
Benefit eligibility conditions
657.156
Reemployment service assistance
657.158
Self-employment assistance
657.159
Claimants required to submit job qualifications to Oregon State Employment Service
657.165
Waiting period eligibility, condition, limitation
657.167
Amount and time period for payment of benefits to educational institution employees
657.170
Extending base year
657.173
Alternate base year
657.176
Grounds and procedure for disqualification
657.179
Eligibility of individuals participating in certain federally approved training
657.184
Benefits payable for service by aliens
657.186
Benefits payable for service by athletes
657.190
Suitable work
657.195
Suitable work
657.200
Labor dispute disqualification
657.202
Temporary lockout benefits
657.205
Deduction of retirement pay
657.210
Disqualification in other jurisdictions
657.213
Ineligibility for benefits upon conviction of fraud in obtaining benefits
657.215
Disqualification for misrepresentation
657.221
Ineligibility for benefits of certain educational institution employees
657.255
Method of payment of benefits
657.260
Filing claims for benefits
657.262
Information provided by public employer to employees
657.265
Notice of claim filing to employing unit or agent of employing unit
657.266
Initial determination of eligibility and amount of benefits
657.267
Allowing or denying claim
657.268
Filing information on issues not previously decided
657.269
Decision final unless hearing requested
657.270
Hearing upon decision
657.273
Restriction on use of findings, orders and judgments in other proceedings
657.275
Review by Employment Appeals Board
657.280
General procedure and records concerning disputed claims
657.282
Judicial review of decisions under ORS 657.275
657.290
Continuous jurisdiction of director
657.295
Witness fees
657.300
False statements or failure to report material fact by employer
657.306
Combining decision on claim for benefits with decision on recovery of benefits
657.310
Repayment or deduction of benefits paid due to misrepresentation by recipient
657.312
Offset of moneys owed to debtor by federal and state governments against certain benefit overpayments
657.315
Deduction of benefits paid in error not due to recipient fault
657.317
Waiver of recovery of overpaid benefits
657.320
Cancellation of unrecoverable benefits
657.321
Definitions for ORS 657.321 to 657.329
657.323
ORS 657.321 to 657.329 supersede inconsistent provisions of this chapter
657.325
Extended benefits
657.326
Adjustment of extended benefits to be received when benefit year ends within extended benefit period
657.327
Notice of effectiveness of extended benefits
657.328
Eligibility period adopted by rule
657.329
Applicability of ORS 657.321 to 657.329
657.331
“Additional benefits” and “additional benefit period” defined
657.332
Eligibility for benefits
657.333
Charging employer’s account for benefits
657.334
Limitation on period for which benefits paid
657.335
Definitions for ORS 657.335 to 657.360
657.340
Eligibility for benefits
657.345
Approval of programs by director
657.350
Rules for administering training program
657.355
Denial of benefits to trainees subject to review
657.357
Apprenticeship program participants eligible for benefits
657.360
When employer charged for benefits
657.370
Definitions for ORS 657.370 to 657.390
657.375
Plan applications
657.380
Eligibility of employees
657.385
Method of paying benefits
657.390
Employer charged for benefits in same manner as for regular or extended benefits
657.392
Benefits subject to recovery as lien on real or personal property
657.394
Filing of lien statement or warrant
657.396
Alternative remedies for collection of amounts liable to be repaid
657.398
Release, compromise or satisfaction of lien
657.400
Employment Department Special Fraud Control Fund
657.405
“Computation date” defined for ORS 657.430 to 657.463 and 657.471 to 657.485
657.410
Minimum wage for employee without fixed wage
657.415
When employer ceases to be subject to this chapter
657.425
Election of coverage for services that do not constitute employment as defined in this chapter
657.430
Tax rates based on experience
657.435
Base rate for first year
657.439
Wage Security Program funding
657.457
Penalty when employer fails to file contribution reports and pay contributions when due
657.458
Definitions for employer tax rate computations
657.459
Computation of Fund Adequacy Percentage Ratio
657.462
Computation of benefit ratio
657.463
Tax rate schedules
657.467
Amounts included in fund adequacy percentage ratio computations
657.471
Manner of charging benefits to employer
657.473
Statement of benefits charged to employer’s account
657.475
Where a number of the same workers are normally employed by several employers
657.477
Related corporations as common paymaster
657.480
Effect of transfer of trade or business
657.485
Notice of rate
657.487
Judicial review of decisions under ORS 657.485
657.490
Employer or employee has no prior right to employer’s contributions
657.495
Fraud in lowering contributions
657.504
Applicability of noncharging provisions
657.505
Payment of and liability for taxes
657.507
Employer’s security for payment of contributions
657.508
Failure to comply with ORS 657.507
657.509
Taxes from political subdivisions and people’s utility districts
657.510
Refunds
657.513
Political subdivision contribution payments from Local Government Employer Benefit Trust Fund
657.515
Delinquent taxes
657.516
Liability of certain officers, members, partners and employees for amounts in default
657.517
Authority of director to compromise or adjust debts or overpayments
657.520
Claims for contribution preferred
657.525
Lien on subjects and products of labor for which contributions are due
657.530
Lien on property used in connection with employment on which contributions are due
657.535
Liens under ORS 657.525 or 657.530
657.540
Lien on property of defaulting employer
657.542
Filing liens and warrants with Secretary of State
657.545
Release of ORS 657.540 lien by filing security
657.552
Limitations on notices of assessment and on actions to collect contributions, interest and penalties
657.555
Authority to release, compromise or satisfy liens
657.557
Remedies for collection of contributions not exclusive
657.560
Joining director in actions involving title of property subject to director’s lien
657.565
Unlawful practices of employer
657.571
Quarterly or annual tax report
657.575
Repayment of default by nonprofit employing unit
657.601
Employment Department
657.608
Director
657.610
Director
657.615
Investigations and recommendations to legislature
657.620
Determination of adequate fund reserve
657.625
Publication of rules, reports and information on Employment Department law
657.630
Quasi-judicial powers in administrative hearings
657.635
Circuit court to enforce obedience to subpoenas
657.640
Attorney General to represent director
657.642
Alternative remedies for collection of taxes, interest and penalties
657.646
Use of warrant to collect amount of judgment
657.652
Certificate as evidence in proceeding
657.655
Certified copies of records as evidence
657.657
Acquisition of land and offices
657.660
Records and reports of employing units
657.663
Penalty for failure by employer to file reports
657.665
Confidentiality of information
657.673
Disclosure of wage information to consumer reporting agency
657.676
Reconsideration of determinations
657.679
Determination that employing unit or employment is subject to this chapter
657.681
Computation and assessment of employer contributions and interest
657.682
Assessments against reorganized business entity
657.683
Hearings on actions under ORS 657.480, 657.679, 657.681 and 657.682
657.684
Judicial review of decisions under ORS 657.683
657.685
Employment Appeals Board
657.690
Employment Appeals Board powers
657.695
Employment Department Advisory Council
657.700
Special councils for program development
657.702
Department to encourage volunteering
657.705
Oregon State Employment Service
657.710
Free public employment offices
657.715
Wagner-Peyser Act accepted
657.720
Cooperation with federal agencies, political subdivisions or private organizations in maintaining public employment service
657.725
Employment districts
657.730
Workforce and labor market information system
657.734
Performance Reporting Information System
657.747
Department to inform employer and United States Department of Labor of employer’s noncompliance with certain federal requirements regarding federal forest maintenance activity
657.749
Department actions when certain forest maintenance activity jobs listed
657.755
Cooperation with federal agencies administering unemployment insurance laws
657.757
Cooperation with federal agencies administering training or retraining programs and other assistance
657.760
Reciprocal agreements on coverage and collection of contributions
657.765
Reciprocal agreements concerning payroll taxes for out-of-state work
657.770
Reciprocal agreements concerning wages used as basis for benefits
657.775
Cooperation with other states on reciprocal basis for collection of contributions
657.780
Agreements with governmental agencies to withhold benefits for child support obligations
657.783
Supplemental Employment Department Administration Fund
657.785
Agreement for Interstate Reciprocal Overpayment Recovery Arrangement
657.805
Unemployment Compensation Trust Fund
657.807
Advances, under title XII of Social Security Act, to Unemployment Compensation Trust Fund
657.810
Deposit and use of fund
657.812
Use of moneys credited to Unemployment Trust Fund by Secretary of the Treasury
657.813
Use of moneys made available under Social Security Act for administrative expenses
657.815
Unemployment Compensation Benefit Fund
657.820
Unemployment Compensation Administration Fund
657.822
Employment Department Special Administrative Fund
657.823
Employment Tax Guarantee Fund
657.825
Expenditure of federal funds
657.830
State Treasurer as custodian of funds
657.840
Federal Advance Interest Repayment Fund
657.855
Benefits not assignable
657.860
Agreement of employee to pay contributions void
657.865
No vested rights
657.870
When operation of this chapter ceases
657.875
Extending period for appeal in certain claim and contribution matters
657.880
Health care coverage for unemployed individuals
657.885
“Health care coverage” defined
657.895
Unemployment compensation programs under federal authority
657.990
Penalties
Green check means up to date. Up to date