2015 ORS 657.045¹
Employment
  • agricultural labor excluded
  • election
  • exceptions

Employment; agricultural labor excluded; exceptions. (1) "Employment" does not include agricultural labor unless such labor is performed after December 31, 1977, for an employing unit who:

(a) During any calendar quarter in the current calendar year or the preceding calendar year paid remuneration in cash of $20,000 or more to individuals employed in agricultural labor; or

(b) On each of 20 days during the current calendar year or the preceding calendar year, each day being in a different calendar week, employed in agricultural labor for some portion of the day (whether or not at the same moment of time) 10 or more individuals.

(2) Notwithstanding subsection (1)(a) and (b) of this section, "employment" does not include services performed before January 1, 1993, by an individual who is an alien admitted to the United States to perform agricultural labor pursuant to sections 214(c) and 101(a) (15) (H) of the Immigration and Nationality Act.

(3) "Agricultural labor" does not include services performed for the state or a political subdivision but does include all services performed:

(a) On a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management of livestock, bees, poultry and fur-bearing animals and wildlife.

(b) In the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement or maintenance of such farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such services is performed on a farm.

(c) In connection with the production or harvesting of any commodity defined as an agricultural commodity in section 15(g) of the Federal Agricultural Marketing Act, as amended, or in connection with the ginning of cotton, or in connection with the operation or maintenance of ditches, canals, reservoirs or waterways not owned or operated for profit used exclusively for supplying and storing water for farming purposes.

(d) In the employ of the operator or group of operators of a farm or farms (or a cooperative organization of which such operator or operators are members) in handling, planting, drying, packing, packaging, processing, freezing, grading, storing or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity, but only if such operator or group of operators produced more than one-half of the commodity, as measured by volume, weight or other customary means, with respect to which such service is performed.

(4) Subsection (3)(d) of this section does not apply to service performed in connection with:

(a) Commercial canning, commercial freezing or brining of cherries;

(b) Any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption; or

(c) Any activity enumerated in subsection (3)(d) of this section when performed for an employer also engaged in any activity enumerated in paragraph (a) or (b) of this subsection.

(5) "Farms," as used in this section, includes stock, dairy, poultry, fruit, fur-bearing animal, Christmas tree and truck farms, plantations, orchards, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising of agricultural or horticultural commodities.

(6) For the purpose of this section, service in connection with the raising of forestry-type seedlings is agricultural labor when performed in a nursery.

(7)(a) For purposes of this chapter, and for services performed after December 31, 1977, any individual who is a member of a crew furnished by a crew leader to perform agricultural labor for any other person shall be treated as an employee of such crew leader if:

(A) Such crew leader holds a valid certificate of registration under the federal Migrant and Seasonal Agricultural Worker Protection Act; or

(B) Substantially all the members of such crew operate or maintain mechanized equipment which is provided by such crew leader; and

(C) Such individual is not an employee of such other persons under the usual common law rules applicable in determining the employer-employee relationship.

(b) Any individual who is furnished by a crew leader to perform agricultural labor for any other person and who is not treated as an employee of such crew leader under paragraph (a) of this subsection shall be an employee of such other person and such other person shall be treated as having paid cash remuneration to such individual in an amount equal to the amount of cash remuneration paid to such individual by the crew leader, either on behalf of the crew leader or on behalf of such other person, for agricultural labor performed for such other person.

(c) For purposes of this subsection, the term "crew leader" means an individual who:

(A) Furnishes individuals to perform agricultural labor for any other person;

(B) Pays, either on behalf of the crew leader or on behalf of such other person, the individuals so furnished by the crew leader for the agricultural labor performed by them; and

(C) Has not entered into a written agreement with such other person under which such individual is designated as an employee of such other person. [Amended by 1955 c.655 §3; 1957 c.395 §1; 1971 c.463 §7; 1973 c.260 §1; 1977 c.446 §1; 1987 c.263 §2; 1989 c.631 §1; 1993 c.18 §141]

Notes of Decisions

Farm co­op­er­a­tive's employees were not agricultural laborers, when they con­ducted occasional testing work on members' farms. Southwest Ore. Dairy Herd Improve­ment Assn. v. Morgan, 17 Or App 300, 521 P2d 1308 (1974)

As used in paragraph (2)(c), "exclusively" means "primarily." Klamath Irr. Dist. v. Employ­ment Div., 21 Or App 61, 534 P2d 190 (1975), Sup Ct review denied

Where peti­tioner maintained five or six accounts for commercially used wa­ter, the accounts constituted a profit opera­tion and peti­tioner did not fall within the exemp­tion under paragraph (2)(c). Rogue River Valley Irr. Dist. v. Employ­ment Div., 21 Or App 79, 534 P2d 200 (1975)

Work in a nursery for the raising of commercial timber seedlings did not fall within the defini­tion of agricultural labor. Appleman v. Employ­ment Div., 21 Or App 186, 534 P2d 218 (1975), Sup Ct review denied

The unemploy­ment tax exemp­tion for agricultural labor does not apply to an employee of a crop dusting concern who is responsible for mixing chemicals and cleaning airplanes at an airport. Lenhardt Airport v. Employ­ment Div., 24 Or App 145, 544 P2d 622 (1976)

Employees who engage in both exempt activities and nonexempt activities are not agricultural labor. Cherry Growers v. Employ­ment Div., 25 Or App 645, 550 P2d 1250 (1976)

Peti­tioner, corpora­tion whose purpose is to operate winery, failed to prove that its winemaking activities are exempt agricultural labor under this sec­tion. Hidden Springs Winery v. Emp. Div., 85 Or App 340, 736 P2d 217 (1987)

Salmon hatchery is not "farm" and fish are not "agricultural commodities" within meaning of this sec­tion. Rash v. Employ­ment Division, 85 Or App 570, 737 P2d 966 (1987)

Agricultural goods that are used or valued and are raised on farm may qualify as commodities regardless of whether goods are bought and sold as articles of commerce. Conven­tion Foliage Service, Inc. v. Employ­ment Depart­ment, 211 Or App 104, 153 P3d 163 (2007)

Chapter 657

Notes of Decisions

An individual who performs services for remunera­tion is an employee, and per­son or organiza­tion for whom services are performed is an employer under terms of Employ­ment Division Law even if remunera­tion is paid indirectly rather than directly unless employer shows that some statutory exclusion applies. Lectro Lift, Inc. v. Morgan, 14 Or App 316, 513 P2d 526 (1973)

Mere act of incorporating as professional corpora­tion does not, by itself, create employer-employee rela­tionship for purposes of this chapter. Peterson v. Employ­ment Division, 82 Or App 371, 728 P2d 95 (1986)

Determina­tion of whether claimant is qualified for benefits is made by reference to ORS 657.150 (Amount of benefits) and 657.155 (Benefit eligibility conditions), which require determina­tion of amount of work that claimant performed in "employ­ment" as defined in ORS chapter 657, which, in turn means that exclusions from "employ­ment" set out in ORS 657.040 (Employment) through 657.094 (Employment) must be considered. May Trucking Co. v. Employ­ment Dept., 251 Or App 555, 284 P3d 553 (2012)

Atty. Gen. Opinions

Determining employer of musicians' group, (1972) Vol 35, p 1306


1 Legislative Counsel Committee, CHAPTER 657—Unemployment Insurance, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors657.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 657, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano657.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.