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Barger v. Morgan

March 19, 1973

BARGER, PETITIONER,
v.
MORGAN, RESPONDENT



Judicial review of the Findings of Fact and Final Order of the Referee of the Administrator of the Employment Division.

Justin C. Tallman, Gresham, argued the cause and filed the brief for petitioner.

Al J. Laue, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.

Foley, Judge. Schwab, Chief Judge, and Langtry, Judge.

Foley

Plaintiff-employer seeks judicial review of the findings and order of the State Employment Division which held him liable for contributions to the Employment Division. The challenged deficiency assessment relates to unemployment taxes claimed by the Division to be due with respect to payments made by plaintiff, a construction contractor, to 27 persons. Plaintiff contends that the persons involved were not employes because their services came within the statutory exemption of ORS 657.040 which reads:

"Services performed by an individual for remuneration are deemed to be employment subject to this chapter unless and until it is shown to the satisfaction of the administrator that:

"(1) Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and

"(2)(a) Such individual customarily is engaged in an independently established business of the same nature as that involved in the contract of service; or

"(b) Such individual holds himself out as a contractor and employs one or more individuals to assist in the actual performance of services and who meets the following criteria shall be deemed to have an independently established business:

"(A) The individual customarily has two or more effective contracts.

"(B) The individual as a normal business practice utilizes separate telephone service, business cards and engages in such commercial advertising as is customary in operating similar businesses.

"(C) The individual is recognized by the Department of Revenue as an employer.

"(D) The individual furnishes substantially all of the equipment, tools and ...


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