72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
SA to SB 40
LC 470/SB 40-1
SENATE AMENDMENTS TO
SENATE BILL 40
By COMMITTEE ON BUSINESS AND LABOR
May 5
On page 1 of the printed bill, line 2, delete '576.306 and'.
Delete lines 4 through 31 and delete pages 2 through 4 and
insert:
' { + SECTION 1. + } ORS 670.600 is amended to read:
' 670.600. { + (1) + } As used in { - various provisions
of - } ORS chapters 316, 448, 656, 657, 671 and 701, an
individual { - or business entity that - } { + who + }
performs labor or services for remuneration { - shall be - }
{ + is + } considered to perform the labor or services as an
'independent contractor' if the standards of this section are
met:
' { + (a) The individual is free from direction and control
over the means and manner of providing the labor or services,
subject to the right of a person or business entity for whom the
labor or services are provided to specify the desired results;
' (b) Except as provided in subsection (2) of this section, the
individual is customarily engaged in an independently established
business. For purposes of this subsection, an individual is
considered to be customarily engaged in an independently
established business if any three of the following requirements
are met:
' (A) The individual does not rely solely on one person or one
entity to obtain customers or the individual performs all labor
or services in the individual's own name or business name and
collects payment for the labor or services directly from the
customer;
' (B) The individual assumes the risk of loss related to the
business or the performance of labor or services as shown by
factors that include fixed-price contracts, commission-based
earnings, responsibility to correct defective work,
responsibility for extension of warranties, negotiated
indemnification agreements or purchase of liability insurance,
performance bonds or errors and omissions insurance;
' (C) The individual performs contracted labor or services for
two or more different persons or business entities within a
12-month period or routinely engages in business advertising,
solicitation or other marketing efforts reasonably calculated to
obtain new contracts to perform similar labor or services;
' (D) The individual makes a significant investment in the
business, including but not limited to:
' (i) Purchase of tools or equipment necessary to perform the
labor or services;
' (ii) Payment for the premises or facilities where the labor
or services are performed; and
' (iii) Payment for specialized training or licenses required
to perform the labor or services; or
' (E) The individual has the authority to hire persons to
perform the labor or services and to fire those persons;
' (c) The individual is licensed under ORS chapter 701 if the
individual performs labor or services for which licensure under
ORS chapter 701 is required; and
' (d) The individual is personally responsible for obtaining
other licenses or certificates necessary to perform the labor or
services.
' (2) Subsection (1)(b) of this section does not apply if the
individual files a Schedule F as part of the individual's
personal income tax return and the individual performs farm labor
or services that are reportable on Schedule C. + }
' { - (1) The individual or business entity providing the
labor or services is free from direction and control over the
means and manner of providing the labor or services, subject only
to the right of the person for whom the labor or services are
provided to specify the desired results; - }
' { - (2) The individual or business entity providing labor or
services is responsible for obtaining all assumed business
registrations or professional occupation licenses required by
state law or local government ordinances for the individual or
business entity to conduct the business; - }
' { - (3) The individual or business entity providing labor or
services furnishes the tools or equipment necessary for
performance of the contracted labor or services; - }
' { - (4) The individual or business entity providing labor or
services has the authority to hire and fire employees to perform
the labor or services; - }
' { - (5) Payment for the labor or services is made upon
completion of the performance of specific portions of the project
or is made on the basis of an annual or periodic retainer; - }
' { - (6) The individual or business entity providing labor or
services is licensed under ORS chapter 701, if the individual or
business entity provides labor or services for which licensure is
required; - }
' { - (7) Federal and state income tax returns in the name of
the business or a business Schedule C or farm Schedule F as part
of the personal income tax return were filed for the previous
year if the individual or business entity performed labor or
services as an independent contractor in the previous year;
and - }
' { - (8) The individual or business entity represents to the
public that the labor or services are to be provided by an
independently established business. Except when an individual or
business entity files a Schedule F as part of the personal income
tax returns and the individual or business entity performs farm
labor or services that are reportable on Schedule C, an
individual or business entity is considered to be engaged in an
independently established business when four or more of the
following circumstances exist: - }
' { - (a) The labor or services are primarily carried out at a
location that is separate from the residence of an individual who
performs the labor or services, or are primarily carried out in a
specific portion of the residence, which portion is set aside as
the location of the business; - }
' { - (b) Commercial advertising or business cards as is
customary in operating similar businesses are purchased for the
business, or the individual or business entity has a trade
association membership; - }
' { - (c) Telephone listing and service are used for the
business that is separate from the personal residence listing and
service used by an individual who performs the labor or
services; - }
' { - (d) Labor or services are performed only pursuant to
written contracts; - }
' { - (e) Labor or services are performed for two or more
different persons within a period of one year; or - }
' { - (f) The individual or business entity assumes financial
responsibility for defective workmanship or for service not
provided as evidenced by the ownership of performance bonds,
warranties, errors and omission insurance or liability insurance
relating to the labor or services to be provided. - } '.
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