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Avanti Press, Inc. v. Employment Department Tax Section

Summarized by: 

Date Filed: 02-29-2012
Case #: A147000
Nakamoto, J. for the Court; Schuman, P.J.; and Wollheim, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/sites/Publications/A147000.pdf

Employment Law: The test for unemployment taxes under ORS 670.600 is whether the contracted party controls their “means and manner” of their performance or if there are more generalized instructions on how to produce the desired results.

Avanti Press, Inc. (petitioner) sought review of a final order of an administrative law judge (ALJ) affirming the Employment Department’s notice of tax assessment issued to Avanti. The ALJ determined Avanti had employed Waiau as a sales representative and that Avanti’s compensation to her was therefore subject to unemployment tax. Avanti argued that Waiau was an independent contractor, not an employee, and that her compensation was therefore immune to unemployment tax. The Court held that ORS 670.600 does not require an independent contractor to be free from all direction and control. The test is whether the contracted party controls their “means and manner” of their performance or if there are more generalized instructions on how to produce the desired results. The Court reasoned the various facts bearing on the “right of control” predominated in favor of the finding that Waiau was an independent contractor because she maintained control over her means and manner. Reversed and remanded.