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Specific Industry Considerations
 
 
Considerations for Specific Businesses
 
The purpose of the information on this page is general information about factors and circumstances that businesses may want to consider in evaluating whether or not a worker is an independent contractor or an employee.  The information is not a statement of public policy, but a compilation of considerations based upon court cases and administrative decisions in the state of Oregon.  No single factor or consideration may be determinative in ultimately concluding whether a worker is an employee or independent contractor.
 
In all cases, to be considered an independent contractor the person performing the service must meet all of the criteria of OregonRevised Statute (ORS) 670.600.  The language in this statute applies only to the Department of Revenue, the Employment Department, the Construction Contractors Board, the Landscape Contractors Board and in some instances to the Workers Compensation Division of the Department of Consumer and Business Services.  For more information about the circumstances under which the statute may apply under Workers’ Compensation Law, please click here.
 
It is not possible to address all considerations for all potential factual situations applicable to all businesses.  To obtain more information about considerations that might apply to your unique business situation contact your local Employment Department tax auditor.
 
The following factors are universal and should be considered in every situation in every industry.
 
  • Direction and control – Does the business direct the worker as to the manner and means of performance?  Does the business direct the worker in any way other than as to the desired outcome or product of the performance?
  • Does the worker have all licenses necessary to perform the work?
  • Does the worker have an independently established business?
    • Does the worker maintain a separate business location away from the work site?
    • Does the worker maintain a business enterprise in a portion of his or her home where services are performed or the business maintains operations?
    • Will the worker bear a loss if errors are made in the performance of the work at the work site?
    • Is the work performed pursuant to the terms of a fixed price contract or on an hourly or piece rate basis?
    • Is the worker required to fix any defects in the work at no cost to the business?
    • Does the worker warrant his or her services?
    • Does the worker provide insurance agreements for the work?
    • Does the person work for two or more types of businesses in a year?
    • Does the worker market his or her services in order to obtain customers?
    • Does the worker have a significant investment in the worker’s business?
    • Does the worker provide and pay for his or her own tools and equipment?
    • Does the worker pay for the facility where the services are provided?
    • Has the worker invested in specialized training in order to perform the work?
    • Does the worker have the authority to hire or fire other workers to perform the work?
 
 
The following factors should also be considered in the particular industry noted.
 
Agricultural Employment:
 
A crew leader may be the employer of the crew. Here are some questions to consider:
 
  • Does the crew leader have a valid Certificate of Registration under the Federal Migrant and Seasonal Agricultural Worker Protection Act?
  • Do the members of the crew operate or maintain mechanized equipment which is provided by the crew leader?
 
 
Auto Repair / Detailing
 
Auto mechanics and detail workers are sometimes treated as independent contractors. Some may use their own tools and equipment and even have specialized licenses. Additional things to consider in this area are:
 
  • Does the worker provide his or her own materials and supplies?
  • Does the worker schedule when and where to perform the work?
 
Barber / Beauty / Nail Salons
 
Some salon workers, rent space from the shop owner, and may have specialized licenses or credentials.
Some things to consider in this area are:
 
  • If the worker rents space at a shop or salon, is the rental a flat rate, or ratable based upon services provided?
  • Does the worker provide his or her own equipment and supplies?
  • Who schedules appointments?
  • Is the person responsible to keep the shop owner notified of comings and goings?
  • Who sets the price of the services?
  • Can the person (or the rental contract) be terminated for not being present at the shop?
  • Does the worker have a specialized license or credential?
 
Cottage Industries (making and selling home-made products):
 
  • Do businesses purchase goods or services from the worker?
  • Does the worker provide the equipment and materials necessary to make the product?
  • Who decides when and where the goods are sold?
  • Who decides the price of the product to be sold?
  • Does the person providing the services have other customers?
  • May the person providing the services sell the same products to any chosen customer?
 
In-Home Care:
 
People who provide in-home care for the elderly are sometimes treated as independent contractors. They sometimes have specialized licenses or credentials. Some things to consider here are:
 
  • Does the worker have his or her own customers?
  • How is the price of performance determined?
  • Who determines which customers will be cared for at any given time?
  • May the person contract with the care recipients directly?
 
Loan Officers / Loan Originators:  
 
In the mortgage banking industry, some loan officers and loan originators have been classified as independent contractors. A question to ask would be:
 
  • Is the loan officer/loan originator directed and controlled by the licensed mortgage broker or banker as required in the provisions of ORS Chapter 59 (Mortgage Banking) in order to maintain in good standing the license of the licensed mortgage broker or banker?
 
Petition Signature Gatherers
 
Signature gathers are hired directly or through a crew leader. Things to consider when hiring a crew leader as an independent contractor are:
 
  • Does the crew leader gather signatures for other customers?
  • Does the crew leader have a place of business?
  • Does the crew leader set or negotiate the price to be paid to workers for gathering signatures?
  • Is the crew or the crew leader subject to supervision?
  • Who decides the hours of work for the signature gatherers?
  • Who decides where the signature gathers will perform their work?
  • Who pays the signature gathers?
  • Is pay based upon hours of work or the number of signatures gathered?
 
Pharmacists:
 
Pharmacies often classify a relief pharmacist as an independent contractor. Some factors to consider here are:
 
  • Where is the pharmacist’s business location?
  • Who determines what hours will be worked?
  • Does the pharmacist have to comply with the schedules of a hospital or office?
  • May the pharmacist set his or her own hours of work?
  • May the pharmacist make independent decisions about who will be served and when?
  • Does the worker advertise to obtain customers in his or her own name or business name?
  • Whose goodwill and profit is affected by the services performed?
 
Political Campaigns
 
Some paid campaign workers are classified as independent contractors. Here are some considerations for workers in this area:
 
  • Does the worker have a business performing similar services for other campaigns or organizations?
  • Does the worker have a business location?
 
Sales:
 
Some people do sales work as independent contractors. Here are some things to consider when hiring a sales person.
 
  • Does the salesperson choose his or her customers and sales area?
  • Does the salesperson contract with more than one supplier of goods?
  • Does the salesperson operate from his or her own business location?
 
 
In some cases, even though there is an employment relationship between the business and the worker, the Oregon legislature has determined that the wages paid to the employee should be excluded from the requirements of ORS Chapter 657 (unemployment insurance law).  Exclusion does not mean that a worker is an independent contractor.  An exclusion means that the wages earned in an employment relationship will not be subject to a payroll tax for unemployment insurance and that the wages will not be used to calculate an individual’s benefit amount for an unemployment insurance claim.  Click here to find out more about exclusions from unemployment insurance law. Use your browser's Find option and search for exclusions or excluded.
 
 
 
The 2005 legislature modified the Independent Contractor statutes. The new statutes take effect January 1, 2006.
 
This page reflects the position of the Employment Department.
 
If you have any questions about whether you are properly classified as an employee or independent contractor, contact
  • Employment Department Tax Section (503-947-1488) or,
  • contact your local tax auditor
 
ORS 670.600 applies only to the Oregon Department of Revenue, Employment Department, Construction Contractors Board, and Landscape Contractors Board. These agencies require that the person performing the work must meet all the criteria of that law.
 
For information about workers' compensation and Oregon labor law, please contact the Workers' Compensation Division and Bureau of Labor and Industries.
 
Return to Oregon Independent Contractors Home Page