- Court: Oregon Court of Appeals
- Area(s) of Law: Employment Law
- Date Filed: 09-05-2013
- Case #: A148492
- Judge(s)/Court Below: Duncan, J. for the Court; Wollheim, P.J.; and Nakamoto, J.
- Full Text Opinion
Portland Columbia Symphony (Columbia) seeks judicial review of an ALJ's decision to enforce a tax assessment issued by the Employment Department. Since 1990 Columbia has secured musicians to perform in its symphony by securing their services via contract in exchange for a flat fee paid to each performer. The musicians are subject to Columbia personnel managers who enforce quality of performance standards. Performance in the symphony is not the primary method of wage earning for the average musician in the Symphony. An ALJ held that Columbia employed musicians without paying required unemployment taxes. Columbia appealed, arguing that the musicians are independent contractors, thereby excluding Columbia from the tax requirement. The Court held that the ALJ misapplied the "direction and control" test in determining that the musicians were not independent contractors. Additionally, the ALJ erred when it determined that the musicians were not engaged in an independently established business. The Court found that Columbia is not subject to the Employment Department's notice of tax assessment. Reversed and remanded