Employee or Independent Contractor?

In making classification determinations, the courts and regulatory agencies weigh certain facts to determine:

Whether the worker in question is free from direction and control; and/or
Whether the worker is, as a matter of economic reality, independent of the business to which services are being provided.

While not all agencies utilize the same criteria, you can find the specific tests for each agency on this website under our Rules/Statute link.

The definition of an “independent contractor” for the Department of Revenue, the Employment Department, the Department of Consumer & Business Services’ Workers’ Compensation Division, the Construction Contractors Board and the Landscape Contractors Board is found at ORS 670.600. These agencies require that the worker meet all the criteria of ORS 670.600, in order to be considered an independent contractor.

Note that different criteria are utilized by the Bureau of Labor and Industries (BOLI.)

As you review the tests, you should also note that there are a number of considerations which are not determinative in deciding whether a worker is an independent contractor:

The creation or use of a business entity, such as a corporation or a limited liability company, by an individual for the purpose of providing services does not, by itself, establish that the individual provides services as an independent contractor.
A contract in which the worker is assigned the label of “independent contractor.”
Payment to the worker is reported by way of a Form 1099 rather than a Form W2.