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The Oregon Administrative Rules contain OARs filed through October 15, 2014
 
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EMPLOYMENT DEPARTMENT

 

DIVISION 31

UNEMPLOYMENT INSURANCE TAXES

471-031-0005

Payroll Records

(1) Every employing unit, as defined by ORS 657.020, shall maintain a payroll record of individuals performing services for it. The payroll record shall show the total payroll of the employing unit by calendar quarter and with respect to each individual shall maintain the following:

(a) Name of individual;

(b) Social Security Account number;

(c) Total remuneration for each pay period, and total remuneration for all pay periods in each calendar quarter, showing separately:

(A) All wages not excluded by the Employment Department Law;

(B) All wages excluded by Employment Department Law;

(C) Cash value of all non-cash remuneration of any nature.

(d) Date of each pay period;

(e) Date individual was hired, rehired, or returned to work after vacation, illness, temporary layoff, or other;

(f) Date individual was terminated;

(g) Number of hours worked in each calendar quarter.

(2) In addition, an employing unit shall maintain records with respect to each calendar quarter, showing:

(a) Date each pay period ends within such calendar quarter;

(b) Total wages, by pay periods, ending within such calendar quarter;

(c) Total number of employees in each pay period.

(3) Employing units are required to keep payroll records containing the information herein prescribed for a period of three calendar years, and furnish such information to the Employment Department upon demand.

(4) An employer shall furnish on request a weekly payroll record for the base year of any employee or former employee who has filed a claim for benefits. Such information shall be placed in the mail not later than three days after the receipt of such request.

(5) In the event an employer fails to comply with this rule, the claim for benefits may be determined on the basis of available records in the possession of the Employment Department, and the employer's account charged accordingly.

Stat. Auth.: ORS 657.610
Stats. Implemented: ORS 657.660
Hist.: 1DE 150, f. & ef. 2-9-76; ED 1-1998, f. 2-20-98, cert. ef. 2-27-98

471-031-0010

Posting of Notices By Employers

Each subject employer shall post, in a place conspicuous to all employees, a notice provided by the Employment Department stating that the employer is subject to the Employment Department Law.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.679
Hist.: 1DE 150, f. & ef. 2-9-76; ED 2-2003, f. 2-7-03 cert. ef. 2-9-03

471-031-0015

Corporate Officer and Shareholder Dividends as Wages

Remuneration means and includes any payments, which includes dividends paid to a corporate officer or shareholder to the extent that they are reasonable compensation for services performed for the corporation.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.095 & ORS 657.105 - ORS 657.140
Hist.: 1DE 153, f. 12-23-77, ef. 1-1-78; ED 6-2002, f. 9-20-02, cert. ef. 9-22-02

471-031-0017

Corporate Officer/Director Election

(1) For the purposes of ORS 657.044 an election not to provide coverage shall apply to all corporate officers who are directors of the corporation, who have a substantial ownership interest in the corporation and who are members of the same family.

(a) The term "substantial ownership" means total family ownership equal to or greater than seventy-five percent of the corporation with each family member who is a corporate officer and director having ownership interest.

(b) The term "family" means two or more individuals related as parents, stepparents, grandparents, spouses, sons-in-law, daughters-in-law, brothers, sisters, children, stepchildren, adopted children or grandchildren.

(c) The election not to provide coverage shall be in writing and shall be effective on the first day of the calendar quarter in which the election was filed, or a later date when so specified in the election.

(2) The election is not effective unless approved by the Director of the Employment Department. The Director shall mail a notice of approval or denial of the employing unit's election to the last known address as shown in the Employment Department's records. Such notice shall become final 20 calendar days after notice is mailed unless within such time the employing unit files with the Director, a request for a hearing with respect thereto.

(3) Hearings shall be conducted in accordance with the provisions of division 040 of OAR chapter 471.

(4) Judicial review of decisions issued pursuant to this rule shall be as provided for review of orders in contested cases in ORS 183.310 through 183.550. The Director of the Employment Department is designated as a party for purposes of hearings under this rule.

(5) Upon motion of the Director of the Employment Department or upon application of an interested employer, the Director may in accordance with ORS 657.676 reconsider a notice issued pursuant to section (3) of this rule.

(6) A request for hearing on the denial of an employing unit's election must be in writing and submitted by the employer or the employer's agent. The date of filing any request for hearing under this rule shall be determined in accordance with provisions of OAR 471-010-0040.

(7) The employees listed in OAR 471-031-0145 and the Tax Section Supervisor of Status may act on behalf of the Director for the purposes of sections (2) and (5) of this rule.

(8) An employing unit which has elected not to provide coverage may elect coverage under ORS 657.425.

Stat. Auth: ORS 657.610
Stats. Implemented: ORS 657.044
Hist.: ED 1-1998, f. 2-20-98, cert. ef. 2-27-98; ED 6-2002, f. 9-20-02, cert. ef. 9-22-02; ED 4-2004, f. 7-30-04, cert. ef. 8-1-04

471-031-0020

Incidental Expense of Employees

Moneys allowed to employees to reimburse them for expenses of meals in the event employees are required to perform work after their regular office hours and amounts paid to employees to reimburse them for traveling or other expenses actually incurred by them while performing service for the employer are not wages or payroll within the meaning of the Employment Department Law. No deduction may be made under this section unless an accurate detailed expense account is prepared by or with the knowledge of the employee and submitted to the employer in such form as will meet the requirements of the Internal Revenue Service and unless such account is preserved by the employer for a period of three calendar years.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.095 & ORS 657.105 - ORS 657.140
Hist.: 1DE 150, f. & ef. 2-9-76

471-031-0025

Pensions

An individual receiving a pension from a former employer shall not be considered an employee of that employer and the amount of the pension is not wages.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.095 & ORS 657.105 - ORS 657.140
Hist.: 1DE 150, f. & ef. 2-9-76

471-031-0030

Jury Pay

Compensation, reimbursement, fees, lodging, meals, or other remuneration paid or provided to an individual for services performed as juror are not wages.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.095 & ORS 657.105 - ORS 657.140
Hist.: 1DE 150, f. & ef. 2-9-76

471-031-0035

Bonuses, Fees, and Prizes

Bonuses, fees, and prizes are wages if paid or given by the employer to an employee as compensation, reward, or added remuneration for services covered by the Employment Department Law. Bonuses, fees, and prizes shall be included in the payroll of the employer at the time they are paid. A bonus, fee, or prize paid to or received during a calendar year shall be wages earned during the calendar year paid, and the employer's tax rate for such year shall be applicable to any bonus, fee, or prize.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.095 & ORS 657.105 - ORS 657.140
Hist.: 1DE 150, f. & ef. 2-9-76; ED 2-2003, f. 2-7-03 cert. ef. 2-9-03

471-031-0040

Accident Compensation

When an employer continues the payment of wages during a disability period, or pays to the employee all or part of the difference between benefits or compensation received from an insurance carrier or State Accident Insurance Fund and the employee's regular or usual wage, the sums so paid by the employer are wages unless excluded from the term wages by ORS 657.115 and 657.125. Lump sum or other special payments to compensate an employee for an accident sustained in the course of employment are not wages.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.115 & ORS 657.125
Hist.: 1DE 150, f. & ef. 2-9-76 ; ED 2-2003, f. 2-7-03 cert. ef. 2-9-03

471-031-0045

Dismissal and Separation Allowances, Vacation Pay, Holiday Pay, and Guaranteed Wage Payments

(1) Remuneration paid as a dismissal or separation allowance, vacation pay, holiday pay, or guaranteed wage is "wages."

(2) For purposes of ORS 657.085 and 657.087, employment does not include service performed by certain individuals to the extent the compensation paid to such individuals consists of commissions, a share of the profit or overrides. The amount of a loan which legally and in fact obligates the borrower to repay the principal amount whether or not commission earnings, a share of the profit or overrides are applied to reduce the payable balance is not wages. However, service performed by an individual who receives a guaranteed payment (whether termed an advance, loan, income leveling, commission guarantee or other similar term) against future commissions, a share of the profit or overrides is employment and the amount of the guaranteed payment is wages.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.085, ORS 657.087, ORS 657.095 & ORS 657.105 - ORS 657.140
Hist.: 1DE 150, f. & ef. 2-9-76; 1DE 1-1981, f. & ef. 1-15-81

471-031-0050

Gifts

Gifts, other than tips or gratuities, received by an employee during the course of employment from persons other than the employer are not wages. The Director, however, reserves the right, based on the facts in each particular case, to determine whether or not the gift is in fact a bonus, fee, or prize given as a reward or added remuneration for services rendered.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.095 & ORS 657.105 - ORS 657.140
Hist.: 1DE 150, f. & ef. 2-9-76; 1DE 2-1985, f. 11-18-85, ef. 1-1-86

471-031-0055

Remuneration Other than Cash

(1) Subject to the provisions of section (2), the term "wages" includes the cash value of all remuneration paid in any medium other than cash, except for agricultural labor and domestic service and the specific exemptions enumerated in ORS 657.115 to 657.140.

(2) Board, lodging, services, facilities, or privileges furnished by an employer shall be considered remuneration paid for services performed by an employee unless it appears that furnishing of the same was not required by the terms of the contract of hire and that the value thereof was not a material factor in the determination by either party of the amount of any cash remuneration payable for such services.

(3) The cash value of non-cash remuneration shall be either:

(a) The amount of non-cash remuneration which is carried on the employer's payroll, provided such amount is comparable to values prevailing in the community; or

(b) An amount determined by the Director when the value of non-cash remuneration is not carried on the employer's payroll. In such determination, board furnished by an employer as remuneration for services shall have a minimum value of 30% of the standard CONUS meal rate per day. The rate per day will be rounded to the nearest dollar. The rate per month will be 30 times the rounded daily rate. If room is furnished in addition to board, no additional value will ordinarily be placed upon the room. If room and board are furnished at hotels, resorts, or lodges, or if a room only, an apartment, a house, or any other consideration is provided, the value for tax purposes will be the fair market value thereof.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.095 & 657.115 - 657.140
Hist.: 1DE 150, f. & ef. 2-9-76; 1DE 153, f. 12-23-77, ef. 1-1-78; 1DE 2-1982, f. & ef. 12-8-82; ED 2-2003, f. 2-7-03 cert. ef. 2-9-03; ED 8-2005, f. 12-23-05, cert. ef. 12-25-05

471-031-0060

Payments by an Employer to Persons in the Military Service

Payments made by an employer voluntarily and without contractual obligation, to or in behalf of a person for periods during which such person performs military services in the Army, Navy, Air Forces, National Guard, or similar units of the United States or any state, do not constitute wages in determining benefit rights or for tax purposes.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.065
Hist.: 1DE 150, f. & ef. 2-9-76

471-031-0065

Employer Elections to Cover Multi-State Workers

(1) Employer elections to cover Multi-State workers shall be in accordance with the procedures, terms, and requirements of the Interstate Reciprocal Coverage Agreement.

(2) The Manager of Tax is authorized to approve or disapprove reciprocal coverage elections.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.035, ORS 657.425 & ORS 657.755 - ORS 657.775
Hist.: 1DE 150, f. & ef. 2-9-76; 1DE 5-1979, f. & ef. 8-27-79

471-031-0067

One Percent Penalty

(1) The Director of the Employment Department shall assess the penalty authorized by ORS 657.457 and mail notice of the assessment of such penalty to the employer's last known address as shown in the Employment Department's records on or before October 20 each year. Such penalty shall become final on the November 10 immediately following the assessment.

(2) On or after the date of the assessment, but prior to the November 10 immediately following the assessment, the employer may request waiver of the penalty based on "good cause" as that term is defined in OAR 471-031-0151.

(3) If an employer makes a request for waiver of the penalty within the time prescribed in Section (2) of this rule, the Director shall make a decision, either granting or denying the waiver, and mail notice thereof to the employer's last known address as shown in the employment Department's records. If, prior to the November 10 immediately following the assessment, the employer establishes "good cause," as defined in OAR 471-031-0151, for failure to file all reports or pay all taxes due by September 1, the Director shall grant the request for waiver and remove the penalty from the employer's account. If the employer fails to establish "good cause," as defined in 471-131-0151, prior to the November 10 immediately following the assessment, the director shall deny the request for waiver. If the request for waiver is denied, the director shall notify the employer that a request for a contested case hearing may be filed within 20 days after mailing of the penalty waiver decision.

(4) The period within which an employer request a waiver of the penalty or a hearing on the denial of a waiver may be extended a reasonable time upon a showing of "good cause" for the late request as defined in OAR 471-040-0010.

(5) Hearings held and referee decisions issued pursuant to section (3) of this rule shall be in accordance with the provisions of chapter 471, division 040.

(6) Judicial review of referee decisions issued pursuant to this rule shall be as provided for review of orders in contested cases in ORS 183.310 through 183.550. The Director of the Employment Department is designated as a party for purposes of hearings under this rule.

(7) Upon motion of the director of the Employment Department or upon application of an interested employer, the Director may reconsider a penalty imposed under ORS 657.457 irrespective of whether it has become final:

(a) Such reconsideration shall be restricted to penalties resulting from clerical errors or errors of computation and may include a new decision upon any grounds or issues not previously ruled upon or new facts nor previously known to the Director;

(b) A new decision made as a result of reconsideration shall be subject to hearing and judicial review in accordance with this rule.

(8) A request for waiver of the penalty for "good cause," must be in writing. The date of any request for waiver under this rule shall be:

(a) The postmarked date on the request, if mailed; or

(b) The machine imprinted date on the request, if transmitted by facsimile device; or

(c) In the absence of a postmark or machine imprinted date, the most probable date of mailing as determined by the Director.

(9) The employees listed in OAR 471-031-0145 and the Supervisor of Tax Recovery may act on behalf of the Director for the purposes of section (1), (2), and (3) of this rule.

(10) The effective date for implementing this rule shall be retroactive to June 23rd, 2002.

Stat. Auth.: ORS 183, 657.457, 657.610 & OL 1993, Ch. 778
Stats. Implemented: ORS 657.457
Hist.: ED 3-1994, f. 8-24-94, cert. ef. 8-28-94; ED 6-1994(Temp), f. & cert. ef. 10-26-94; ED 3-1999, f. 6-29-99, cert. ef. 7-4-99; ED 4-2002, f. 6-20-02 cert ef 6-23-02; ED 4-2004, f. 7-30-04, cert. ef. 8-1-04

471-031-0070

Taxes

(1) All employers shall make and file a quarterly tax report except domestic employers, who may report annually. Reports shall be made upon forms provided by the Director. Quarterly taxes shall be payable for each calendar quarter with respect to wages paid within such calendar quarter. Annual taxes shall be payable for each calendar year with respect to wages paid within that calendar year. Quarterly taxes shall be due and payable on or before the last day of the month following the close of the calendar quarter. Annual taxes shall be due and payable on or before the last day of January of the following year. If the due date specified falls upon a Saturday, Sunday, or a legal holiday, then reports and payment of taxes shall not be due until the next business day.

(2) When any employer goes out of business, any and all taxes required by the Employment Department Law or the regulations of the Director shall be immediately due and payable.

(3) An employer who fails to pay taxes as required by section (1) of this rule is delinquent. If such delinquency continues following the mailing of a notice of delinquency to the employer's last-known address as shown by the records of the Director, such employer may be required to report and pay taxes monthly until all delinquent taxes have been paid in full and the Director approves an application pursuant to procedures adopted by the Director to make quarterly reports and pay taxes as provided in section (1) of this rule.

(4) When an employer has become delinquent in the payment of taxes and is required to pay said taxes monthly, such monthly taxes shall become due and payable on the last day of the month following the close of the month for which such taxes are payable. If the taxes are not so paid, the employer shall be deemed to be delinquent.

(5) Any employer found to be delinquent in the payment of taxes as provided in this rule shall be subject to the penalties as specified in ORS 657.515, and further may be assessed an additional penalty as provided in 657.457.

(6) When taxes or reports have been sent to the Director through the U. S. Mails, postage prepaid for delivery to the Director, the date they are postmarked by the Post Office shall be the date of receipt by the Director. Such date shall be used in the calculation of interest charges, delinquencies, penalties, or other sanctions provided by law. In the absence of a postmarked date, the date of receipt shall be the most probable date of mailing as determined by the Director.

Stat. Auth.: ORS 183, 657.457, 657.610 & Ch. 778, OL 1993
Stats. Implemented: ORS 657.457 & 657.504 - 657.575
Hist.: 1DE 150, f. & ef. 2-9-76; ED 3-1994, f. 8-24-94, cert. ef. 8-28-94; ED 7-2004, f. 12-17-04, cert. ef. 12-19-04

471-031-0072

Application of Payments

(1) Except as otherwise provided by statute, or directed by a court of competent jurisdiction, payments made to the Employment Department by or on behalf of an employer for taxes; and legal fees, penalties and interest related to taxes; in accordance with the provisions of ORS Chapter 657 shall identified by the Department as either Designated or Undesignated Payments and shall be credited to the employer’s account in the following order of priority:

(a) Undesignated Payments; payments received by the Employment Department that are not designated as a payment for a specific quarter or distraint warrant will be identified as an Undesignated Payment and will be credited to:

(A) To the oldest unwarranted unpaid quarter balance in the following order:

(i) Penalties;

(ii) Interest;

(iii) Tax.

(B) When all amounts due in (A) are paid, payments will be then be credited to the most recent unpaid distraint warrant in the following order:

(i) Legal Fees;

(ii) Penalties;

(iii) Interest;

(iv) Tax.

(b) Designated Payments; payments received by the Employment Department that are designated as a payment for a specific quarter or distraint warrant will be identified as a Designated Payment and will be credited to the specific designated quarter or distraint warrant as follows:

(i) Legal Fees;

(ii) Penalties;

(iii) Interest;

(iv) Tax.

(2) The Director may identify categories of indebtedness for internal accounting procedures and may retire each category separately in the order of priority set forth in section (1) of this rule.

(3) Nothing in this rule shall be construed in any way as abridging or limiting the authority or powers of the Director granted under ORS 657.457, 657.515, 657.517, or 657.610.

(4) The employees listed in OAR 471-031-0145 may act on behalf of the Director for purposes of sections (2) and (3) of this rule.

(5) Notwithstanding any instructions to the contrary by or on behalf of the employer, payments will be applied in the manner specified in this rule.

(6) Credit balances will be treated as payments for purposes of this rule.

(7) Legal Fees are defined as fees attributed to the recording or processing of distraint warrants on behalf of the agency for the purposes of collecting Unemployment Insurance taxes pursuant to ORS 657.396 and search fees attributed to garnishments issued to financial institutions pursuant to Chapter 18.

Stat. Auth.: ORS 657.610
Stats. Implemented: ORS 657.457, 657.505, 657.515, 657.557, 657.642, 657.663 & 657.990
Hist.: ED 5-1996, f. & cert. ef. 8-5-96; ED 14-2008, f. 11-24-08, cert. ef. 12-1-08

471-031-0075

Appointment of an Agent to Act on Behalf of a Group of Employers

(1) Employers who are engaged in substantially similar operations, and rotationally employ the same group of employees in employment during the course of a year may:

(a) Pool their employment experience with respect to those employees under the Employment Department Law;

(b) Declare their intention of operating with respect to those employees through an agent in the same manner as though the agent were the employer of those employees as provided in ORS 657.475; and

(c) File with the Director an application requesting the agent appointed by the group be permitted to act for the group.

(2) The agent shall maintain, prepare, and file reports and make tax payments required under the Employment Department Law and these rules. In addition, the employer shall submit as a supplement to each regular tax report a supplementary tax report showing by months the amount of the payroll and the total taxes paid on behalf of each member of the group of employers.

(3) Prior to approval or disapproval by the Director of an application, a copy of the agreement between the agent and the appointing group authorizing the agent to represent them shall be submitted for the consideration of the Director.

(4) The tax rate of each employer in the group shall be the rate assigned in accordance with ORS 657.435 unless there has been one year immediately preceding the computation date throughout which the employer's account has been chargeable with benefits. Any period during which benefits were chargeable against an individual account may be combined with the period of membership in the group during which benefits paid on the basis of wage credits earned with such employer were chargeable to the agent's account, for the purpose of establishing a year of experience.

(5) For the purposes of rate determination pursuant to the Employment Department Law:

(a) The Director shall establish and maintain a separate account in the name of the agent. This account shall be charged with all benefits paid on the basis of wage credits reported by the agent. All wage reports submitted by the agent shall be maintained as if they represented wage reports of employees of such agent;

(b) In addition, the Director shall continue to maintain a separate account for each member of the group and shall transfer to each account the amount of payroll reported on each employer's behalf by the agent and the taxes paid on each employer's behalf by the agent;

(c) As of June 30 of each year, the Director shall determine the amount of each employer's share of the total benefit charges which have been made against the agent's account during the year ending on said date; such share shall be in the proportion that the individual employer's payroll in the year, reported by the agent, bears to the total payroll in such year reported by the agent for all of the employer members of the group. When determined, the amount of benefit charges to be allocated to each individual employer shall be transferred to that employer's account.

(6) If any member of the group terminates their relationship with the agent, they shall within ten (10) days thereafter notify the Director. The employer shall continue to be charged their prorated share of benefit charges so long as the base year period against which charges are being made includes any calendar quarter in which the employer was a party to the agency agreement.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.435 & ORS 657.475
Hist.: 1DE 150, f. & ef. 2-9-76; ED 2-2003, f. 2-7-03 cert. ef. 2-9-03

471-031-0076

Common Paymaster

(1) As provided in ORS 657.477, a common paymaster established for a group of related corporations is any member thereof that disburses remuneration to employees of two or more of those corporations on their behalf. However, the common paymaster is not required to disburse remuneration to all employees of the two or more related corporations:

(a) A common paymaster making disbursements on behalf of related corporations to employed individuals shall be responsible for taxes, interest and penalties imposed by ORS Chapter 657 on all wages disbursed by it;

(b) For purposes of charging benefits paid and mailing notices to base year employers, the common paymaster shall be considered the employer for all wages disbursed to individuals by the common paymaster whether payment was for services performed for the common paymaster or for a related corporation.

(2) If the common paymaster fails to remit taxes, interest and penalties on all wages disbursed by it as required by ORS Chapter 657, the Director may hold each of the related corporations liable for a proportionate share of the obligation. Such proportionate share may be based on sales, property, corporate payroll or any other reasonable basis that reflects the distribution of services of the pertinent employees between the related corporations. When there is no reasonable basis for allocating the amount owed, it shall be divided equally among the related corporations. If a related corporation fails to pay any amount allocated to it pursuant to this section, the Director may hold any or all of the other related corporations liable for the full amount of the unpaid taxes, interest and penalties.

(3) Two or more corporations shall be considered related corporations for an entire calendar quarter if they satisfy any of the following tests at any time during that calendar quarter:

(a) More than 50 percent of the total combined voting power of all classes of stock entitled to vote or more than 50 percent of the value of shares of all classes of stock of each corporation is owned by one or more of the other corporations, and the common parent corporation owns stock possessing more than 50 percent of the total combined voting power or more than 50 percent of the total value of shares of all classes of stock of at least one of the other corporations;

(b) Five or fewer persons who are individuals, estates or trusts own more than 50 percent of the total combined voting power of all classes of stock entitled to vote or more than 50 percent of the total value of all classes of stock of each corporation, taking into account the stock ownership of each person only to the extent such stock ownership is identical with respect to each such corporation;

(c) A group of two or more corporations is combined with a common parent corporation as described in subsection (a) of this section and also such parent corporation is a member of a group of corporations as described in subsection (b) of this section;

(d) Fifty percent or more of one corporation's officers are concurrently officers of the other corporation;

(e) Thirty percent or more of one corporation's employees are concurrently employees of the other corporation;

(f) When a corporation that does not issue stock is involved, either:

(A) Fifty percent or more of the members of one corporation's board of directors (or other governing body) are members of the other corporation's board of directors (or other governing body); or

(B) The Holders of fifty percent or more of the voting power to select members of one corporation's board of directors (or other governing body) are concurrently the holders of more than fifty percent of that power with respect to the other corporation.

(4) For purposes of section (3) of this rule, concurrent employment means the simultaneous existence of an employment relationship (within the meaning of ORS Chapter 657) between an individual and two or more corporations. Such a relationship contemplates the performance of services by the individual for the benefit of the employing corporation, not merely for the benefit of the group of corporations:

(a) The simultaneous existence of an employment relationship with each corporation is a decisive factor. If it exists, the fact that a particular employee is on leave or otherwise temporarily inactive is immaterial;

(b) Employment is not concurrent with respect to one of the related corporations if the employee's employment relationship with that corporation is completely nonexistent during the periods when the employee is not performing services for that corporation;

(c) An individual who does not perform substantial services for a corporation is presumed not employed by that corporation;

(d) A corporation which has no employees performing services for it in Oregon cannot be the common paymaster for Oregon employees of its related corporations.

(5) Related corporations which compensate their employees through a common paymaster shall file with the Director the details of their plan. The detail shall include the names of the related corporations, the name of the common paymaster corporation and the class or classes of workers involved. The filing shall include documentation to substantiate the corporations are related as defined in section (3) of this rule and that employees are concurrently employed. An amendment to the plan shall be filed whenever there is a change in the related corporations participating in the plan, a change in the common paymaster or a change in the class or classes of workers involved.

(6) Plans submitted pursuant to section (5) of this rule shall be filed within the 30 day period following the end of the calendar quarter in which the plan is in effect. Eligibility of an employee to be compensated through a common paymaster shall be determined on a quarterly basis.

(7) A common paymaster is not a successor corporation pursuant to ORS 657.480 for concurrent employees unless the related corporation ceases operations and is acquired in its entirety by the paymaster corporation.

(8) An employing unit may not report the payroll of any other employing unit, except as provided in this rule. For the purposes of ORS 657.095, wages paid by separate employing units may not be aggregated or combined for purposes of reporting payroll unless there is an actual transfer of entity and experience rating as provided by ORS 657.480.

(9) The term "common agent" as defined by federal law, is not recognized for the purposes of ORS 657.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.030 & ORS 657.477
Hist.: 1DE 1-1981, f. & ef. 1-15-81; ED 15-2003, f. 12-12-03 cert. ef. 12-14-03

471-031-0077

Coemployment/Payrolling

An employing unit may not report the payroll of any other separate employing unit, unless done so under an authorized Common Paymaster plan as set forth in ORS 657.477.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.610; ORS 657.405-657.575
Hist.: ED 15-2003, f. 12-12-03 cert. ef. 12-14-03

471-031-0080

Tax Compromise Policy

(1) It shall be the policy of the Director to compromise tax claims pursuant to the provisions of ORS 657.515(7) where it appears that such action would be in the best interests of all parties involved and the statutory criteria for a settlement has been met.

(2) The effective date for implementing this rule shall be retroactive to June 23rd, 2002.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.515 & 657.517
Hist.: 1DE 150, f. & ef. 2-9-76; ED 4-2002, f. 6-20-02 cert ef 6-23-02; ED 4-2004, f. 7-30-04, cert. ef. 8-1-04

471-031-0085

Employer Wages and Hours of Work Report

(1) In addition to the quarterly tax report and payment as provided in these rules, each employer shall file an employer's quarterly report of employees' wages and hours of work on forms as required by ORS 657.571 and such other reports as may be required by the Director, duly completed in all respects.

(a) If an employer does not record hours worked as part of the payroll system, the employer may provide a reasonable estimate of hours rounded up to the next hour worked by each employee including estimates based on:

(A) Average hours worked in a day, multiplied by the number of days worked;

(B) Average time to complete a piece or component, multiplied by the number of pieces or components completed; or

(C) Total time worked in an average month multiplied by the number of months worked in the quarter. A month of full time work averages 174 hours.

(b) If the estimation methods in (a) do not adequately reflect hours worked in the employer's business, the employer may use reasonable alternative methods of estimating hours. The employer shall keep a record of the method and data used in providing such estimates as required in OAR 471-031-0005(3).

(2) An employer may, with the Director's approval, substitute Electronic Data Processing (EDP) medium for the report or reports required in section (1) of this rule. The employer's quarterly report of employees' wages and hours of work form furnished by the Director must be attached to or filed with the substitute EDP medium. All reports must be legible and complete as to the information required by this rule and the instructions contained on the report forms. Any report may be returned to the employer if improperly prepared, incomplete, or illegible and such employer shall be deemed to have failed to file reports as required by this rule and ORS 657.660.

(3) The employer's quarterly report of employees' wages and hours of work shall be made on or before the last day of the month following the close of the calendar quarter to which such report relates; provided, however, that when the due date falls upon a Saturday, Sunday, or a legal holiday, the report shall not be due until the next business day.

(4) An employer failing to file a complete and legible employer's quarterly report of employees' wages and hours of work as required in this rule and ORS 657.660 shall be subject to the penalties provided in ORS 657.457 and 657.663.

(5) The effective date for implementing this rule shall be retroactive to June 23rd, 2002.

Stat. Auth.: ORS 657.610
Stats. Implemented: ORS 657.457, 657.570, 657.660 & 657.663
Hist.: 1DE 150, f. & ef. 2-9-76; 1DE 2-1982, f. & ef. 12-8-82; ED 1-1998, f. 2-20-98, cert. ef. 2-27-98; ED 4-2001, f. 3-23-01, cert. ef. 3-25-01; ED 4-2002, f. 6-20-02 cert ef 6-23-02; ED 4-2004, f. 7-30-04, cert. ef. 8-1-04

471-031-0095

Approval of Work Experience Programs

(1) The Director may approve a program of instruction which combines academic instruction with work experience if it meets the requirements of ORS 657.030(3)(d).

(2) The Director shall revoke the approval of a program of an institution if it is determined that the institution no longer meets the requirements in ORS 657.030(3)(d). Upon revoking such approval, the services performed in a work experience program shall be employment subject to ORS Chapter 657.

(3) The approval by the Director of a program of an institution shall be applicable only to those individuals participating in the program who are enrolled at the institution as a full-time student pursuant to the rules and policies of such institution. Upon acquiring a status of less than a full-time student, the services performed in a work experience program shall be employment subject to ORS Chapter 657.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.030
Hist.: 1DE 150, f. & ef. 2-9-76; 1DE 2-1984, f. & ef. 9-28-84; ED 2-1987, f. & ef. 11-27-87; ED 2-2003, f. 2-7-03 cert. ef. 2-9-03

471-031-0105

Student Employment

For purposes of ORS 657.030(3)(a) the term "student" does not include a student enrolled in a college or university if such student is:

(1) An undergraduate student enrolled in courses totaling less than 12 credit hours;

(2) A graduate student enrolled in courses totaling less than nine credit hours.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.030
Hist.: 1DE 150, f. & ef. 2-9-76; 1DE 2-1984, f. & ef. 9-28-84

471-031-0110

Action at Law, Verification, Liens, Distraint Warrants

The Assistant Director for UI Programs, Manager of Tax, or other person designated by the Director is authorized for and on behalf of the Director to:

(1) Verify all pleadings filed in actions at law, and to perform such acts necessary in the prosecution of such actions at law.

(2) Execute and file lien claims and distraint warrants for taxes, interest, and penalty due and owing the Unemployment Compensation Trust Fund and the Employment Department Special Administrative Fund.

(3) The effective date for implementing this rule shall be retroactive to June 23rd, 2002.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.457 & 657.504 - 657.575
Hist.: 1DE 150, f. & ef. 2-9-76; 1DE 5-1979, f. & ef. 8-27-79; 1DE 1-1985, f. & ef. 11-18-85; ED 4-2002, f. 6-20-02 cert ef 6-23-02; ED 4-2004, f. 7-30-04, cert. ef. 8-1-04

471-031-0120

Christmas Tree Farms

Services performed in connection with the planting, cutting, and transporting of Christmas trees from uncultivated land or forest do not constitute agricultural labor.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.045
Hist.: 1DE 153, f. 12-23-77, ef. 1-1-78

471-031-0125

In-Home Sales

For the purposes of ORS 657.087(2), "In-person solicitation" means a face-to-face contact at the customer's residence and does not include mail, telephone or other non-personal contacts.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.087
Hist.: 1DE 153, f. 12-23-77, ef. 1-1-78; 1DE 1-1981, f. & ef. 1-15-81; ED 1-1987, f. & ef. 1-12-87

471-031-0130

Domestic Service

(1) For purposes of ORS 657.050(1) "domestic service" means general services of a household nature in or about a private home, including, but not limited to: services performed by cooks, waiters/waitresses, butlers, housekeepers, child monitors, general houseworkers, personal attendants, baby-sitters, janitors, launderers, caretakers, gardeners, grooms and chauffeurs of automobiles for family use.

(2) Services not of a household nature, such as services performed as a private secretary, tutor or nurse, even though performed in the employer's private home, are not domestic service.

(3) A private home is a fixed place of abode of an individual household. A separate and distinct dwelling unit maintained by a household in an apartment house, hotel or other similar establishment may constitute a private home, provided it is a place in which a person resides with the intention of residence, or has so resided with the intention of returning. If a dwelling house of an individual or family is used primarily as a boarding house for the purpose of supplying lodging to the public as a business enterprise, only that portion of the premises occupied by the individual or family may be considered a private home for the purposes of this rule.

(4) If domestic services for an employing unit are determined to be employment under ORS 657.050 at any time during a calendar year, that employing unit shall be an employer liable for taxes on all cash remuneration paid for such services during that entire calendar year.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.050
Hist.: 1DE 153, f. 12-23-77, ef. 1-1-78; 1DE 5-1979, f. & ef. 8-27-79; ED 2-1989, f. & cert. ef. 10-30-89

471-031-0135

Participants of Federal Training Programs

In accordance with ORS 657.067(2), "employment" includes services performed by an individual as a participant in an on-the-job training (OJT) program of the Work Incentive Program.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.067
Hist.: 1DE 153, f. 12-23-77, ef. 1-1-78; 1DE 5-1980, f. 6-5-80, ef. 6-16-80; 1DE 1-1985, f. & ef. 11-18-85

471-031-0139

Employing Enterprise and Prohibited Activities

(1) As used in chapter 657, an employing enterprise is a business, including all of the component parts of the business necessary to carry out day-to-day operations. Formation of a distinct legal entity for any component part of the employing enterprise may be disregarded for purposes of determining the experience rating of the employing enterprise.

(2) For the purposes of ORS 657.480(2)(c), any activity or inactivity that would hide or attempt to hide the actual experience of an employing enterprise as referenced in 657.430 is prohibited.

Stat. Auth: ORS 657
Stats. Implemented: ORS 657.462, 657.480, 657.485
Hist.: ED 3-2006, f. 2-3-06, cert. ef. 2-5-06

471-031-0140

Transfer of Experience Determination, Tax Rate, Consolidation

(1) For purposes of ORS 657.480, an employing unit is a total successor to the experience of an employing enterprise when all or substantially all of the components parts of the employing enterprise are transferred to or otherwise acquired by the employing unit, including the employees necessary to carry on day-to-day operations and essential business functions in the same manner and for the same purposes as carried on prior to the acquisition or transfer. If at the time of the purchase or transfer the acquired employing entity is inactive, no transfer of experience shall be allowed.

(2) An employer whose tax rate for a calendar year is determined in accordance with either ORS 657.462 or 657.435 and which has become final in accordance with 657.485 shall pay taxes at the determined rate on all wages paid by all employing units of the employer during the calendar year for employment as defined in ORS Chapter 657.

(3) In consolidation of existing employing units, the tax rate experience will be consolidated for the next year's rate determination only if:

(a) The effective date of the consolidation is on or before August 31 of the current year; and

(b) The Department is notified of the consolidation in writing prior to November 15 of the same year.

(4) When an employing unit acquires the trade or business of an employer that has received the penalty tax rate under ORS 657.480(3), the penalty tax rate will transfer.

(5) Any transfer or acquisition described in section (1) must be reported to the Employment Department Tax Section within 60 days of the date the transfer or acquisition becomes final.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.435, 657.462, 657.480 & 657.485
Hist.: 1DE 153, f. 12-23-77, ef. 1-1-78; ED 2-1989, f. & cert. ef. 10-30-89; ED 15-2003, f. 12-12-03 cert. ef. 12-14-03; ED 3-2006, f. 2-3-06, cert. ef. 2-5-06; ED 6-2010, f. & cert. ef. 12-13-10

471-031-0141

Partial Transfer of Experience

(1) Under ORS 657.480(1) A new or existing employing unit is a partial successor to the experience of an employing enterprise when an identifiable and segregable portion of the employing enterprise is transferred to or otherwise acquired by the employing unit, including the employees of that portion of the employing enterprise necessary to carry on day-to-day operations and essential business functions in the same manner and for the same purposes as carried on prior to the acquisition or transfer.

(2) For the period beginning with the date of the transfer of the employment experience record through the end of the calendar year in which the transfer occurs, the contribution rate of the predecessor shall be the same as if there had been no transfer. Upon determination for partial transfer the Director shall:

(a) Assign a contribution rate for a successor that is a new employing unit, to be effective from the date of the transfer through the end of the calendar year in which the transfer occurs; and

(b) Notify the successor in writing of the tax rate assigned in subsection (2)(a) of this rule.

(3) In a partial consolidation, when both employing units are existing employers, the tax rate experience shall be consolidated for the next year's rate determination only if the date of the transfer is on or before August 31 of the current year.

(4) The percentage of employment experience attributable to the transfer shall be calculated by dividing the number of employees hired by the successor that are attributable to the transfer by the total number of employees of the predecessor prior to the transfer. This percentage, rounded to the nearest percentage number, shall then be applied to the benefit charges and taxable payroll of the predecessor and the resulting amounts shall comprise the employment experience to be transferred to the successor's account. The experience shall be added to the successor's account in the same quarter it is removed from the predecessor's account. The percent transferred plus the percent not transferred shall equal one hundred percent.

(5) The Director may use other reasonable means of determining the percentage in section (4) that is attributable to the transfer.

(6) Benefits charged to the predecessor in the quarter in which the transfer occurs and the next three quarters shall be split between the predecessor and successor in accordance with the percentage established in section (4) of this rule. For each quarter thereafter, none of the benefits charged to the predecessor shall be transferred to the successor.

(7) For the limited purpose of calculating experience rates under this rule, if the transfer occurs after the fifteenth day of the middle month of a calendar quarter, wages paid by the predecessor during such quarter shall be split between the predecessor and successor in accordance with the percentage calculated in section (4) of this rule. If the transfer occurs on or before the fifteenth day of the middle month of a calendar quarter, none of the wages paid by the predecessor during such quarter shall be split.

(8) For each calendar year commencing on or after the date of the transfer, the successor's contribution rate shall be based on its experience with taxable payroll and benefit charges, including the experience of the acquired portion of business as determined in sections (2), (3), (4), (5), (6) and (7).

(9) The successor, if not an employer at the time of the transfer, shall become an employer as of the date of the transfer.

(10) In determining excess wages over the taxable wage amount, a successor may use the wages paid by the predecessor prior to the transfer.

(11) When the Employment Department determines that a partial transfer has occurred, the Employment Department shall give the successor notice of the determination and its effects to the partial successor. The partial successor may request a hearing in accordance with the provisions of ORS 657.683.

(12) Notwithstanding sections (2), (3), (4), (5), (6) and (7), when an employing unit acquires a portion of the trade or business of an employer that has received the penalty tax rate under ORS 657.480(3), a proportionate share of the penalty tax rate will transfer and be added to its calculated rate.

(13) Any transfer or acquisition described in section (1) must be reported to the Employment Department Tax Section within 60 days of the date the transfer or acquisition becomes final.

Stat. Auth.: ORS 657.610
Stats. Implemented: ORS 657.480
Hist.: ED 1-2000, f. 3-31-00, cert. ef. 4-2-00; ED 15-2003, f. 12-12-03 cert. ef. 12-14-03; ED 3-2006, f. 2-3-06, cert. ef. 2-5-06; ED 7-2010, f. & cert. ef. 12-13-10

471-031-0142

Acquiring an Employing Entity: Active or Inactive

(1) When an employer begins business and has or expects to have payroll for employees, or when the Tax Section makes a determination that a business has or expects to have payroll for employees, the Employment Department Tax Section may open an account for purposes under ORS chapter 657.

(2) The Employment Department Tax Section may close an account when an employer ceases operations and reports the closure of the business to the Tax Section, or when the Tax Section makes a determination that the business is not likely to have additional payroll.

(3) For the purposes of ORS 657.430 and 657.480, when an employing unit acquires a business that no longer has an open account the tax rate assigned the acquiring employing unit will be based solely on the experience of the acquiring employing unit and any of its predecessors.

(4) For the purposes of ORS 657.430 and 657.480, a business with a closed account may request that the Tax Section reopen the account. The Tax Section may reopen a closed account only in circumstances where the business owner entity is the same and where the business activity is the same or substantially the same as prior to the closing.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.610 & 657.405 - 657.575
Hist.: ED 15-2003, f. 12-12-03 cert. ef. 12-14-03; ED 3-2006, f. 2-3-06, cert. ef. 2-5-06

471-031-0145

Continuous Jurisdiction

In accordance with the provisions of subsection (2) of ORS 657.676, the following employees are designated by the Director as having the authority to act for and in the name of the Director in matters of reconsideration and correction of determinations of employer subjectivity, tax rates or tax assessments:

(1) Deputy Director;

(2) Assistant Director for Unemployment Insurance;

(3) Manager of Tax;

(4) Supervisor of Central Operations;

(5) Supervisor of Field Operations.

(6) Supervisor of Special Projects

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.676
Hist.: 1DE 153, f. 12-23-77, ef. 1-1-78; 1DE 5-1979, f. & ef. 8-27-79; 1DE 1-1985, f. & ef. 11-18-85; 1DE 2-1986, f. & ef. 4-14-86; ED 6-2002, f. 9-20-02, cert. ef. 9-22-02

471-031-0151

Failure to File Reports or Pay Tax — Good Cause

(1) As used in ORS 657.457, 657.552, and 657.663 "good cause" will be found to exist when the employer establishes by satisfactory evidence that factors or circumstances beyond the employer's reasonable control caused the delay in filing the required document or paying the tax due.

(2) In determining "good cause" under section (1) of this rule, the Director or an authorized representative may consider all circumstances, but shall require at a minimum that the employer:

(a) Prior to the date the document or tax was due, gave notice to the Employment Department, when reasonably possible, of the factors or circumstances which ultimately caused the delay;

(b) Filed the required document or paid the tax due within seven days after the date determined by the Director to be the date the factors or circumstances causing the delay ceased to exist; and

(c) Made a diligent effort to remove the cause of the delay and to prevent its recurrence.

(d) Provide an official police report, or other documentation of the criminal act acceptable to the Director or an authorized representative, that was made within 20 days of the incident, or discovery of the incident, if the delay was due to a criminal act by any party.

(3) In applying sections (1) and (2) of this rule, a lack of funds on the part of the employer shall not constitute good cause for failure to pay all taxes when due.

(4) In applying sections (1) and (2) of this rule, failure to notify the Employment Department of an updated mailing address per ORS 657.660(4) shall not constitute good cause for failure to file reports.

(5) The period within which an employer may request a waiver of the penalty or hearing on the denial of a waiver may be extended a reasonable time upon a showing of “good cause” for the late request as defined in OAR 471-040-0010.

Stat. Auth.: ORS 657.610
Stats. Implemented: ORS 657.610, 657.457, 657.552 & 657.663
Hist.: 1DE 2-1984, f. & ef. 9-28-84; ED 15-2008, f. 11-24-08, cert. ef. 12-1-08; ED 1-2014, f. 1-3-14, cert. ef. 2-23-14; ED 2-2014, f. 1-15-14, cert. ef. 2-23-14

471-031-0155

Investigatory Subpoenas

(1) Tax auditors or their supervisors may issue and cause to be served subpoenas which compel the attendance of witnesses and/or order the production of any books, papers, contracts, accounts, records, documents or other physical evidence in the possession of any person, company or corporation. Such subpoenas shall relate to a scheduled hearing or pertain to the discovery of information necessary to carry out the Employment Department's statutory duties, or as an adjunct to tax collection procedures.

(2) In connection with subpoenas issued pursuant to this rule, no witness fees or mileage shall be paid other than for attendance at a scheduled hearing. When witness fees and mileage are payable pursuant to this rule, payment shall be made in the same manner and subject to the same conditions as provided for in OAR 471-040-0020(6) and (7).

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.610 & ORS 657.660
Hist.: 1DE 1-1985, f. & ef. 11-18-85

471-031-0160

Computation of Excess Wages

Excluded remuneration under ORS 657.095 shall be computed for each employing unit exclusively on the basis of its own payroll unless:

(1) ORS 657.480 requires two or more employing units to be treated as if there had been no change in ownership.

(2) Two or more corporations are treated as having a common paymaster under ORS 657.477 and OAR 471-031-0076.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.095, ORS 657.477 & ORS 657.480
Hist.: ED 2-1989, f. & cert. ef. 10-30-89

471-031-0175

Agricultural Employment

(1) If agricultural services for an employing unit are determined to be employment under ORS 657.045 at any time during a calendar year, that employing unit shall be an employer liable for taxes on all cash remuneration paid for such services during that entire calendar year.

(2) Except as provided by ORS 657.045(3)(c), processing services which transform an agricultural commodity from its raw or natural state, and services performed with respect to an agricultural product after it has been transformed from its raw or natural state, do not constitute agricultural labor.

Stat. Auth.: ORS 657
Stats. Implemented: ORS 657.045
Hist.: ED 2-1989, f. & cert. ef. 10-30-89; ED 2-2005, f. 4-29-05, cert. ef. 5-1-05

471-031-0181

Independent Contractor

(1) Purpose of Rule. The Landscape Contractors Board, Department of Revenue, Department of Consumer and Business Services, Employment Department, and Construction Contractors Board must adopt rules together to carry out ORS 670.600. ORS 670.600 defines "independent contractor" for purposes of the programs administered by these agencies. This rule is intended to ensure that all five agencies apply and interpret 670.600 in a consistent manner; to clarify the meaning of terms used in 670.600; and, to the extent possible, to enable interested persons to understand how all five agencies will apply 670.600.

(2) Statutory Context.

(a) ORS 670.600 generally establishes three requirements for "independent contractors." One requirement is that an "independent contractor" must be engaged in an "independently established business." Another requirement is related to licenses and certificates that are required for an "independent contractor" to provide services. A third requirement is that an "independent contractor" must be "free from direction and control over the means and manner" of providing services to others.

(b) The specific focus of this rule is the "direction and control" requirement. See ORS 670.600 for the requirements of the "independently established business" test and for licensing and certification requirements.

(3) Direction and Control Test.

(a) ORS 670.600 states that an "independent contractor" must be "free from direction and control over the means and manner" of providing services to others. The agencies that have adopted this rule will use the following definitions in their interpretation and application of the "direction and control" test:

(A) "Means" are resources used or needed in performing services. To be free from direction and control over the means of providing services an independent contractor must determine which resources to use in order to perform the work, and how to use those resources. Depending upon the nature of the business, examples of the "means" used in performing services include such things as tools or equipment, labor, devices, plans, materials, licenses, property, work location, and assets, among other things.

(B) "Manner" is the method by which services are performed. To be free from direction and control over the manner of providing services an independent contractor must determine how to perform the work. Depending upon the nature of the business, examples of the "manner" by which services are performed include such things as work schedules, and work processes and procedures, among other things.

(C) "Free from direction and control" means that the independent contractor is free from the right of another person to control the means or manner by which the independent contractor provides services. If the person for whom services are provided has the right to control the means or manner of providing the services, it does not matter whether that person actually exercises the right of control.

(b) Right to specify results to be achieved. Specifying the final desired results of the contractor's services does not constitute direction and control over the means or manner of providing those services.

(4) Application of "direction and control" test in construction and landscape industries:

(a) The provisions of this section apply to:

(A) Architects licensed under ORS 671.010 to 671.220;

(B) Landscape architects licensed under ORS 671.310 to 671.479;

(C) Landscaping businesses licensed under ORS 671.510 to 671.710;

(D) Engineers licensed under ORS 672.002 to 672.325; and

(E) Construction contractors licensed under ORS Chapter 701.

(b) A licensee described in (6)(a), that is paying for the services of a subcontractor in connection with a construction or landscape project, will not be considered to be exercising direction or control over the means or manner by which the subcontractor is performing work when the following circumstances apply:

(A) The licensee specifies the desired results of the subcontractor's services by providing plans, drawings, or specifications that are necessary for the project to be completed.

(B) The licensee specifies the desired results of the subcontractor's services by specifying the materials, appliances or plants by type, size, color, quality, manufacturer, grower, or price, which materials, appliances or plants are necessary for the project to be completed.

(C) When specified by the licensee's customer or in a general contract, plans, or drawings and in order to specify the desired results of the subcontractor's services, the licensee provides materials, appliances, or plants, including, but not limited to, roofing materials, framing materials, finishing materials, stoves, ovens, refrigerators, dishwashers, air conditioning units, heating units, sod and seed for lawns, shrubs, vines, trees, or nursery stock, which are to be installed by subcontractors in the performance of their work, and which are necessary for the project to be completed.

(D) The licensee provides, but does not require the use of, equipment (such as scaffolding or fork lifts) at the job site, which equipment is available for use on that job site only, by all or a significant number of subcontractors requiring such equipment.

(E) The licensee has the right to determine, or does determine, in what sequence subcontractors will perform work on a project, the total amount of time available for performing the work, or the start or end dates for subcontractors working on a project.

(F) The licensee reserves the right to change, or does change, in what sequence subcontractors will perform work on a project, the total amount of time available for performing the work, or the start or end dates for subcontractors working on a project.

Stat. Auth: ORS 657.610
Stats. Implemented: ORS 657.040, 670.600, 670.605, 671.010 - 657.710, 672.002 - 672.325,701
Hist.: ED 2-2007, f. 1-31-07, cert. ef. 2-1-07

471-031-0185

Indian Tribes

As used in ORS 657.020, 657.043, 657.044, 657.047, 657.048, 657.050, 657.065, 657.167, 657.221, 657.333, 657.425, 657.505, 657.506 and 657.840, the term "Indian tribe" means any Indian tribe, band, nation, or other organized group or community which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.

Stat. Auth.: ORS 657.610
Stats. Implemented: ORS 657.610 & HB 3596
Hist.: ED 11-2001, f. 9-28-01, cert. ef. 9-30-01

471-031-0190

Shopping News

For the purposes of ORS 657.080(1), “shopping news” includes, but is not limited to, publications that consist primarily of classified ads and/or coupons and does not include publications that are primarily phone listings.

Stat. Auth. ORS 657.610
Stas. Implemented: ORS 657.610
Hist.: ED 16-2008, f. 11-24-08, cert. ef. 12-1-08

471-031-0195

Horticultural Commodity

(1) For purposes of ORS 657.045(3)(a), “horticultural commodity” means a product resulting from the services performed by a farm worker including: the planting, cultivating, propagating, harvesting, handling, and delivering to storage or to market or to a carrier for transportation to market.

(2) “Farms” include: truck farms, plantations, ranches, nurseries, ranges, orchards, and such greenhouses and other similar structures as are used primarily for the raising of commodities for sale. Greenhouses and similar structures used primarily for purposes such as display, storage for rental of horticultural commodities, and fabrication of horticultural arrangements, do not constitute "farms."

Stat. Auth. ORS 657.610
Stas. Implemented: ORS 657.610
Hist.: ED 17-2008, f. 11-24-08, cert. ef. 12-1-08

471-031-0205

Cafeteria Plans

Employee benefits paid through a cafeteria plan, as defined in the Internal Revenue Code (IRC) Section 125, are not included in wages if listed as excluded in ORS 657.115, even if paid through a payroll deduction.

Stat. Auth. ORS 657.610
Stas. Implemented: ORS 657.610
Hist.: ED 19-2008, f. 11-24-08, cert. ef. 12-1-08

471-031-0210

Bond or Deposit

(1) For the purposes of ORS 657.507(1), the director or an authorized representative may demand a bond or deposit to protect the Unemployment Compensation Trust Fund balance when the director or an authorized representative has determined that there is sufficient evidence that a risk exists.

(2) “Risk” is solely determined by the director or an authorized representative and includes circumstances where a principal of an employing entity, who continues to employ workers subject to ORS Chapter 657:

(a) is currently delinquent in filing Unemployment Insurance reports or payment of Unemployment Insurance tax; or

(b) was previously delinquent in filing Unemployment Insurance reports or payment of Unemployment Insurance tax.

Stat. Auth. ORS 657.610
Stas. Implemented: ORS 657.610
Hist.: ED 20-2008, f. 11-24-08, cert. ef. 12-1-08

471-031-0215

Registered Domestic Partnerships

For the purposes of ORS Chapter 657, “spouse” includes any person in a registered domestic partnership considered valid under the laws of the State of Oregon.

Stat. Auth. ORS 657.610
Stas. Implemented: ORS 657.610
Hist.: ED 21-2008, f. 11-24-08, cert. ef. 12-1-08

471-031-0220

Franchisee

(1) A “franchisee” means an individual or business entity that has a franchise license from the owner of a trademark, or trade name permitting another to sell a product, or service under that name or mark.

(2) Individuals or business entities who provide primarily services for pay, and are under contract to provide services as franchisees, must meet the requirements of ORS 657.040 and 670.600 or some other exclusionary provisions of Chapter 657 in order to be excluded from the classification of employee under this Chapter.

Stat. Auth. ORS 657.610
Stas. Implemented: ORS 657.610
Hist.: ED 22-2008, f. 11-24-08, cert. ef. 12-1-08

471-031-0235

Volunteer Consideration

For purposes of ORS 657.015:

(1) “Adequate consideration for the services performed” with respect to volunteers is as defined in the Internal Revenue Code Title 26, Subtitle C, Section 3306(c)(10)(A).

(2) Payments to volunteers that are reimbursements for reasonable expenses incurred while volunteering, such as mileage or travel costs, are not remuneration for service if they are paid under an accountable plan. Payments under an accountable plan must meet all three of the following:

(a)The deductible expense was incurred while performing services as a volunteer for a religious, charitable institution or governmental entity. A reimbursement or advance must be for an income tax deductible expense and must not be an amount that would have otherwise been paid to the volunteer.

(b) The payment must be substantiated within a reasonable period of time.

(c) The volunteer must return any amounts in excess of substantiated expenses within a reasonable period of time.

Stat. Auth. ORS 657.610
Stats. Implemented: ORS 657.610
Hist.: ED 11-2010, f. & cert. ef. 12-13-10

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