Chapter 657 — Unemployment Insurance

2011 EDITION

UNEMPLOYMENT INSURANCE

LABOR, EMPLOYMENT; UNLAWFUL DISCRIMINATION

GENERALLY

657.005 Short title

657.007 Conflict with state law

DEFINITIONS

657.010 Definitions

657.015 Employee

657.020 Employing unit

657.025 Employer

657.030 Employment generally; educational, hospital, nursing, student service exclusions

657.035 Employment; effect of place of performance of service

657.040 Employment; when service for pay excluded; independent contractors

657.043 Employment; golf course caddy service excluded; exceptions

657.044 Employment; service by partners and corporate officers and directors who are family members excluded; exceptions

657.045 Employment; agricultural labor excluded; exceptions

657.047 Employment; transportation of logs, poles and piling and lessor of for-hire carriers excluded; exceptions

657.048 Employment; language translators or interpreters excluded; exceptions

657.050 Employment; domestic service, child care service and certain service not in course of employer’s trade excluded; exceptions

657.053 Employment; certain service on fishing boat excluded

657.056 Employment; maritime service

657.060 Employment; family service and foster care excluded

657.065 Employment; governmental service excluded; exceptions

657.067 Employment; community work and training programs excluded; work study, work experience and work incentive programs excluded; exceptions

657.072 Employment; certain nonprofit services excluded

657.075 Employment; service under Railroad Unemployment Insurance Act excluded

657.078 Employment; stringer, correspondent and photographer services for media excluded

657.080 Employment; news delivery service excluded

657.085 Employment; service by certain agents, brokers, producers and salespersons excluded

657.087 Employment; service by individuals soliciting contracts for home improvements and consumer goods sales excluded

657.088 Employment; certain sports officiating services excluded

657.090 Employment; petroleum products distributors excluded

657.091 Employment; food product demonstrators excluded

657.092 Employment; nonprofit organization employees and contestants excluded

657.093 Employment; certain services provided in exchange for ski passes excluded

657.094 Employment; down-river boating activities excluded

657.095 Payroll

657.097 Political subdivision

657.100 Unemployment; rules

657.105 Wages; generally

657.115 Wages; exclusion of fringe benefits

657.117 Wages; inclusion of federal taxes and tips

657.120 Wages; exclusion of retirement benefits

657.125 Wages; exclusion of disability benefits

657.130 Wages; exclusion of payments from certain trusts and annuities

657.135 Wages; exclusion of payments to persons over 65

657.140 Wages; exclusion of assistance to individuals under community work and training program

BENEFITS AND CLAIMS

(Income Tax Consequences of Benefits)

657.144 Notice to individual of effect of filing claim for benefits

657.146 Withholding from benefits for tax purposes; rules

657.148 Compliance with federal requirements for collection and payment of federal taxes

(Generally)

657.150 Amount of benefits; length of employment and wages necessary to qualify for benefits; rules

657.152 Adjusting benefits to even dollar amounts

657.155 Benefit eligibility conditions; rules

657.156 Reemployment service assistance; eligibility; rules

657.158 Self-employment assistance; eligibility; amounts payable; rules

657.159 Claimants required to submit job qualifications to Oregon State Employment Service; use of information; referring claimant to available jobs

657.165 Waiting period eligibility, condition, limitation

657.167 Amount and time period for payment of benefits to educational institution employees

657.170 Extending base year; limitation

657.173 Alternate base year; rules

657.176 Grounds and procedure for disqualification; exceptions; rules

657.179 Eligibility of individuals participating in certain federally approved training

657.184 Benefits payable for service by aliens

657.186 Benefits payable for service by athletes

657.190 Suitable work; factors to consider

657.195 Suitable work; exceptions

657.200 Labor dispute disqualification; exceptions

657.205 Deduction of retirement pay; exceptions

657.210 Disqualification in other jurisdictions

657.213 Ineligibility for benefits upon conviction of fraud in obtaining benefits

657.215 Disqualification for misrepresentation

657.221 Ineligibility for benefits of certain educational institution personnel

657.255 Method of payment of benefits; payment of benefits due deceased person; rules

657.260 Filing claims for benefits; employer to post statements concerning claim regulations; rules

657.265 Notice of claim filing to employing unit or agent of employing unit

657.266 Initial determination of eligibility and amount of benefits; notice to affected parties; cancellation of determination; determination becomes final when hearing not requested

657.267 Allowing or denying claim; notice of denial; amended decision; appeal

657.268 Filing information on issues not previously decided; claim reexamination; notice of reasons for decision

657.269 Decision final unless hearing requested

657.270 Hearing upon decision; application for review; dismissal of request for hearing

657.273 Restriction on use of findings, orders and judgments in other proceedings

657.275 Review by Employment Appeals Board

657.280 General procedure and records concerning disputed claims

657.282 Judicial review of decisions under ORS 657.275

657.290 Continuous jurisdiction of director; reconsideration of previous decisions

657.295 Witness fees; disputed claim expenses; counsel; fees

657.300 False statements or failure to report material fact by employer

657.306 Combining decision on claim for benefits with decision on recovery of benefits

657.310 Recovery or deduction of benefits paid because of misrepresentation by recipient; penalty

657.315 Recovery or deduction of benefits paid erroneously

657.317 Waiving recovery of benefits; effect of nonconformity to federal law

657.320 Cancellation of unrecoverable benefits

(Extended Benefits)

657.321 Definitions for ORS 657.321 to 657.329

657.323 ORS 657.321 to 657.329 supersede inconsistent provisions of this chapter

657.325 Extended benefits; eligibility; amount

657.326 Adjustment of extended benefits to be received when benefit year ends within extended benefit period

657.327 Notice of effectiveness of extended benefits; employers not to be charged for extended benefits

657.328 Eligibility period adopted by rule

657.329 Applicability of ORS 657.321 to 657.329

(Additional Benefits)

657.331 “Additional benefits” and “additional benefit period” defined

657.332 Eligibility for benefits; maximum amount

657.333 Charging employer’s account for benefits; reimbursing employer payments

657.334 Limitation on period for which benefits paid

DISLOCATED WORKER PROGRAM

657.335 Definitions for ORS 657.335 to 657.360

657.340 Eligibility for benefits

657.345 Approval of programs by director

657.350 Rules for administering training program

657.355 Denial of benefits to trainees subject to review

657.357 Apprenticeship program participants eligible for benefits; conditions

657.360 When employer charged for benefits

SHARED WORK PLANS

657.370 Definitions for ORS 657.370 to 657.390

657.375 Plan applications; approval by director

657.380 Eligibility of employees; benefit limitation

657.385 Method of paying benefits; amount; disqualification; applicability of law to shared work plans; rules

657.390 Reimbursement to Unemployment Compensation Trust Fund of shared work benefits paid; use of benefit charges

RECOVERY OF BENEFITS OBTAINED BY FRAUD

657.392 Benefits subject to recovery as lien on real or personal property

657.394 Filing of lien statement or warrant

657.396 Alternative remedies for collection of amounts liable to be repaid; warrants; execution by sheriff

657.398 Release, compromise or satisfaction of lien

657.400 Employment Department Special Fraud Control Fund

CONTRIBUTIONS BY EMPLOYERS; COVERAGE; RATE

657.405 “Computation date” defined for ORS 657.430 to 657.463 and 657.471 to 657.485

657.410 Minimum wage for employee without fixed wage

657.415 When employer ceases to be subject to this chapter

657.425 Election of coverage for services that do not constitute employment as defined in this chapter

657.430 Tax rates based on experience

657.435 Base rate for first year

657.439 Wage Security Program funding

657.457 Penalty when employer fails to file contribution reports and pay contributions when due; notice of failure; waiver; rules

657.458 Definitions for employer tax rate computations

657.459 Computation of Fund Adequacy Percentage Ratio

657.462 Computation of benefit ratio; grouping employers within cumulative taxable payroll percentage limits; assignment of rates

657.463 Tax rate schedules

657.467 Amounts included in fund adequacy percentage ratio computations

657.471 Manner of charging benefits to employer; request for relief from charges

657.473 Statement of benefits charged to employer’s account

657.475 Where a number of the same workers are normally employed by several employers; records; contributions; charging benefits

657.477 Related corporations as common paymaster; treatment of compensation for services

657.480 Effect of transfer of trade or business; partial transfer; penalties; rules

657.485 Notice of rate; request for hearing; procedure for redetermination

657.487 Judicial review of decisions under ORS 657.485

657.490 Employer or employee has no prior right to employer’s contributions

657.495 Fraud in lowering contributions

COLLECTION OF TAXES

657.504 Applicability of noncharging provisions

657.505 Payment of and liability for taxes; rules

657.507 Employer’s security for payment of contributions

657.508 Failure to comply with ORS 657.507

657.509 Taxes from political subdivisions and people’s utility districts; election; effect of canceling election; applicability of noncharging provisions

657.510 Refunds

657.513 Political subdivision contribution payments from Local Government Employer Benefit Trust Fund

657.515 Delinquent taxes; interest; civil penalties; collection by civil action; settlement

657.516 Liability of certain officers, members, partners and employees for amounts in default

657.517 Authority of director to compromise or adjust debts or overpayments; determination of uncollectible amounts

657.520 Claims for contribution preferred

657.525 Lien on subjects and products of labor for which contributions are due

657.530 Lien on property used in connection with employment on which contributions are due

657.535 Liens under ORS 657.525 or 657.530; priority; filing statement of lien; foreclosure

657.540 Lien on property of defaulting employer; recording; priority; foreclosure

657.542 Filing liens and warrants with Secretary of State

657.545 Release of ORS 657.540 lien by filing security

657.552 Limitations on notices of assessment and on actions to collect contributions, interest and penalties

657.555 Authority to release, compromise or satisfy liens

657.557 Remedies for collection of contributions not exclusive; prevailing party in civil action to recover costs

657.560 Joining director in actions involving title of property subject to director’s lien

657.565 Unlawful practices of employer

657.571 Quarterly or annual tax report; form; filing with Department of Revenue

657.575 Repayment of default by nonprofit employing unit; conditions

EMPLOYMENT DEPARTMENT; ADMINISTRATION GENERALLY

657.601 Employment Department

657.608 Director; term; duties; compensation

657.610 Director; powers and duties generally; rules

657.615 Investigations and recommendations to legislature

657.620 Determination of adequate fund reserve; modification of benefits and eligibility regulations in case of emergency

657.625 Publication of rules, reports and information on Employment Department law

657.630 Quasi-judicial powers in administrative hearings

657.635 Circuit court to enforce obedience to subpoenas

657.640 Attorney General to represent director

657.642 Alternative remedies for collection of taxes, interest and penalties; warrants; execution by sheriff

657.646 Use of warrant to collect amount of judgment

657.652 Certificate as evidence in proceeding

657.655 Certified copies of records as evidence

657.657 Acquisition of land and offices

657.660 Records and reports of employing units

657.663 Penalty for failure by employer to file reports; amount; collection procedure; review of penalty

657.665 Confidentiality of information

657.673 Disclosure of wage information to consumer reporting agency; conditions

657.676 Reconsideration of determinations; conditions; rules; hearing and review

657.679 Determination that employing unit or employment is subject to this chapter; notice; application for hearing

657.681 Computation and assessment of employer contributions and interest; jeopardy assessments; application for hearing

657.682 Assessments against reorganized business entity

657.683 Hearings on actions under ORS 657.480, 657.679, 657.681 and 657.682; decision of administrative law judge; amendment of decision

657.684 Judicial review of decisions under ORS 657.683

657.685 Employment Appeals Board; confirmation; quorum; meetings; duties; staffing; rules

657.690 Employment Appeals Board powers

657.695 Employment Department Advisory Council; members; compensation and expenses

657.700 Special councils for program development

657.702 Department to encourage volunteering

OREGON STATE EMPLOYMENT SERVICE

657.705 Oregon State Employment Service

657.710 Free public employment offices; contracts relating to workforce investment system; public agencies to provide information on job vacancies

657.715 Wagner-Peyser Act accepted

657.720 Cooperation with federal agencies, political subdivisions or private organizations in maintaining public employment service

657.725 Employment districts

INFORMATION SYSTEMS

657.730 Labor market information system; rules

657.734 Performance Reporting Information System; rules

657.736 Occupational Program Planning System

RECIPROCAL AND COOPERATION AGREEMENTS

657.755 Cooperation with federal agencies administering unemployment insurance laws

657.757 Cooperation with federal agencies administering training or retraining programs and other assistance

657.760 Reciprocal agreements on coverage and collection of contributions

657.765 Reciprocal agreements concerning payroll taxes for out-of-state work

657.770 Reciprocal agreements concerning wages used as basis for benefits

657.775 Cooperation with other states on reciprocal basis for collection of contributions

657.780 Agreements with governmental agencies to withhold benefits for child support obligations; rules

FUNDS

657.783 Supplemental Employment Department Administration Fund

657.785 Agreement for Interstate Reciprocal Overpayment Recovery Arrangement

657.805 Unemployment Compensation Trust Fund

657.807 Advances, under title XII of Social Security Act, to Unemployment Compensation Trust Fund

657.810 Deposit and use of fund

657.812 Use of moneys credited to Unemployment Trust Fund by Secretary of the Treasury

657.813 Use of moneys made available under Social Security Act for administrative expenses

657.815 Unemployment Compensation Benefit Fund

657.820 Unemployment Compensation Administration Fund

657.822 Employment Department Special Administrative Fund

657.823 Employment Tax Guarantee Fund

657.825 Expenditure of federal funds; restitution of moneys lost or improperly expended

657.830 State Treasurer as custodian of funds

657.840 Federal Advance Interest Repayment Fund; assessment of tax; applicability

MISCELLANEOUS PROVISIONS

657.855 Benefits not assignable; waiver of rights invalid

657.860 Agreement of employee to pay contributions void

657.865 No vested rights

657.870 When operation of this chapter ceases

657.875 Extending period for appeal in certain claim and contribution matters

657.880 Health care coverage for unemployed individuals; deduction of benefits

657.885 “Health care coverage” defined

657.895 Unemployment compensation programs under federal authority

PENALTIES

657.990 Penalties

GENERALLY

657.005 Short title. This chapter shall be known and may be cited as the Employment Department Law. [Amended by 1959 c.583 §14; 1993 c.344 §2]

657.007 Conflict with state law. For purposes of this chapter, if any provision of state law conflicts with any provision of this chapter, this chapter shall control. [2009 c.115 §2]

DEFINITIONS

657.010 Definitions. As used in this chapter, unless the context requires otherwise:

(1) “Base year” means the first four of the last five completed calendar quarters preceding the benefit year.

(2) “Benefits” means the money allowances payable to unemployed persons under this chapter.

(3) “Benefit year” means a period of 52 consecutive weeks commencing with the first week with respect to which an individual files an initial valid claim for benefits, and thereafter the 52 consecutive weeks period beginning with the first week with respect to which the individual next files an initial valid claim after the termination of the individual’s last preceding benefit year except that the benefit year shall be 53 weeks if the filing of an initial valid claim would result in overlapping any quarter of the base year of a previously filed initial valid claim.

(4) “Calendar quarter” means the period of three consecutive calendar months ending on March 31, June 30, September 30 or December 31, or the approximate equivalent thereof, as the Director of the Employment Department may, by regulation, prescribe.

(5) “Contribution” or “contributions” means the taxes, as defined in subsection (13) of this section, that are the money payments required by this chapter, or voluntary payments permitted, to be made to the Unemployment Compensation Trust Fund.

(6) “Educational institution,” including an institution of higher education as defined in subsection (9) of this section, means an institution:

(a) In which participants, trainees or students are offered an organized course of study or training designed to transfer to them knowledge, skills, information, doctrines, attitudes or abilities from, by or under the guidance of an instructor or teacher;

(b) That is accredited, registered, approved, licensed or issued a permit to operate as a school by the Department of Education or other government agency, or that offers courses for credit that are transferable to an approved, registered or accredited school;

(c) In which the course or courses of study or training that it offers may be academic, technical, trade or preparation for gainful employment in a recognized occupation; and

(d) In which the course or courses of study or training are offered on a regular and continuing basis.

(7) “Employment office” means a free public employment office or branch thereof, operated by this state or maintained as a part of a state-controlled system of public employment offices.

(8) “Hospital” means an organization that has been licensed, certified or approved by the Oregon Health Authority as a hospital.

(9) “Institution of higher education” means an educational institution that:

(a) Admits as regular students only individuals having a certificate of graduation from a high school, or the recognized equivalent of such a certificate;

(b) Is legally authorized in this state to provide a program of education beyond high school;

(c) Provides an educational program for which it awards a bachelor’s or higher degree, or provides a program that is acceptable for full credit toward such a degree, a program of post-graduate or post-doctoral studies, or a program of training to prepare students for gainful employment in a recognized occupation; and

(d) Is a public or other nonprofit institution.

(10) “Internal Revenue Code” means the federal Internal Revenue Code, as amended and in effect on December 31, 2010.

(11) “Nonprofit employing unit” means an organization, or group of organizations, described in section 501(c)(3) of the Internal Revenue Code that is exempt from income tax under section 501(a) of the Internal Revenue Code.

(12) “State” includes, in addition to the states of the United States of America, the District of Columbia and Puerto Rico. However, for all purposes of this chapter the Virgin Islands shall be considered a state on and after the day on which the United States Secretary of Labor first approves the Virgin Islands’ law under section 3304(a) of the Federal Unemployment Tax Act as amended by Public Law 94-566.

(13) “Taxes” means the money payments to the Unemployment Compensation Trust Fund required, or voluntary payments permitted, by this chapter.

(14) “Valid claim” means any claim for benefits made in accordance with ORS 657.260 if the individual meets the wages-paid-for-employment requirements of ORS 657.150.

(15) “Week” means any period of seven consecutive calendar days ending at midnight, as the director may, by regulation, prescribe. The director may by regulation prescribe that a “week” shall be “in,” “within,” or “during” the calendar quarter that includes the greater part of such week. [Amended by 1959 c.642 §1; 1961 c.252 §1; 1963 c.13 §1; 1969 c.597 §174; 1971 c.463 §1; 1977 c.241 §1; 1983 c.528 §1; 1993 c.344 §3; 2005 c.218 §3; 2007 c.614 §16; 2008 c.45 §17; 2009 c.5 §27; 2009 c.595 §1042; 2009 c.909 §30; 2010 c.82 §32; 2011 c.7 §27]

657.015 Employee. As used in this chapter, unless the context requires otherwise, “employee” means any person, including aliens and minors, employed for remuneration or under any contract of hire, written or oral, express or implied, by an employer subject to this chapter in an employment subject to this chapter. “Employee” does not include a person who volunteers or donates services performed for no remuneration or without expectation or contemplation of remuneration as the adequate consideration for the services performed for a religious or charitable institution or a governmental entity. [Amended by 1999 c.734 §1]

657.020 Employing unit. (1) As used in this chapter, unless the context requires otherwise, “employing unit” means:

(a) Any individual or type of organization, including any partnership, association, limited liability company, limited liability partnership, trust, estate, joint stock company, insurance company or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee, or successor thereof, or the legal representative of a deceased person, who has or had in its employ one or more individuals performing services for it within this state.

(b) This state, including every state officer, board, commission, department, institution, branch and agency of the state government.

(d) Any political subdivision.

(e) Any Indian tribe or subdivision, subsidiary or business enterprise wholly owned by an Indian tribe.

(2) All individuals performing services within this state for any employing unit that maintains two or more separate establishments within this state are deemed to be employed by a single employing unit for all the purposes of this chapter, except that for the purposes of this chapter each of the various agencies, boards, commissions, departments, institutions and political subdivisions of this state shall be deemed separate employing units. [Amended by 1955 c.655 §1; 1957 c.682 §1; 1959 c.398 §1; 1973 c.715 §1; 1977 c.295 §1; 1995 c.93 §37; 1997 c.646 §14; 2001 c.572 §1]

657.025 Employer. (1) As used in this chapter, unless the context requires otherwise, “employer” means any employing unit which employs one or more individuals in an employment subject to this chapter in each of 18 separate weeks during any calendar year, or in which the employing unit’s total payroll during any calendar quarter amounts to $1,000 or more.

(2) Whenever any helper, assistant or employee of an employer engages any other person in the work that the helper, assistant or employee is doing for the employer, with the employer’s actual, constructive or implied knowledge, the employer shall, for all purposes of this chapter, be deemed the employer of the other person, whether the other person is paid by the helper, assistant or employee or by the employer. All persons employed by an employer in all of the employer’s several places of employment maintained within the state shall be treated as employed by a single employer for the purposes of this chapter. [Amended by 1953 c.494 §1; 1955 c.655 §2; 1959 c.405 §1; 1971 c.463 §2; 1973 c.300 §1; 1975 c.257 §1; 1981 c.77 §1; 2007 c.46 §1]

657.030 Employment generally; educational, hospital, nursing, student service exclusions. (1) As used in this chapter, except as provided in ORS 657.035, 657.040 and 657.043 to 657.094, “employment” means service for an employer, including service in interstate commerce, within or outside the United States, performed for remuneration or under any contract of hire, written or oral, express or implied.

(2) Notwithstanding any other provisions of this chapter, “employment” includes service that is:

(a) Subject to the tax imposed by the Federal Unemployment Tax Act; or

(b) Required to be covered under this chapter as a condition for employers to receive a full tax credit against the tax imposed by the Federal Unemployment Tax Act.

(3) Notwithstanding subsections (1) and (2) of this section, “employment” does not include:

(a) Service performed in the employ of a school, college or university, if the service is performed by a student who is enrolled and is regularly attending classes at the school, college or university, or by the spouse of the student, if the spouse is advised at the time the spouse commences to perform the service, that the employment of the spouse is provided under a program to provide financial assistance to the student by the school, college, or university, and the employment is not covered by any program of unemployment insurance.

(b) Service performed in the employ of a hospital, if the service is performed by a patient of the hospital.

(c) Service performed as a student nurse in the employ of a hospital or a nurses’ training school by an individual who is enrolled in a nurses’ training school chartered or approved pursuant to the laws of this state.

(d) Service performed by an individual who is enrolled at a nonprofit or public educational institution that normally maintains a regular faculty and curriculum and normally has a regularly organized body of students in attendance at the place where its educational activities are carried on as a student in a full-time program, taken for credit at the institution, that combines academic instruction with work experience, if the service is an integral part of the program, and the program has been approved by the Director of the Employment Department, and the institution has so certified to the employer, except that this paragraph does not apply to service performed in a program established for or on behalf of an employer or group of employers.

(e) Service performed by a full-time student in the employ of an organized camp described in section 3306(c)(20) of the Internal Revenue Code:

(A) If the camp:

(i) Did not operate for more than seven months in the calendar year and did not operate more than seven months in the preceding calendar year; or

(ii) Had average gross receipts for any six months in the preceding calendar year that were not more than 33-1/3 percent of its average gross receipts for the other six months in the preceding calendar year; and

(B) If the full-time student performed services in the employ of the camp for less than 13 calendar weeks in the calendar year.

(4) As used in subsection (3)(e) of this section, an individual shall be treated as a full-time student for any period:

(a) During which the individual is enrolled as a full-time student at an educational institution; or

(b) That is between academic years or terms if:

(A) The individual was enrolled as a full-time student at an educational institution for the immediately preceding academic year or term; and

(B) There is a reasonable assurance that the individual will be enrolled for the immediately succeeding academic year or term after the period described in subparagraph (A) of this paragraph. [Amended by 1959 c.405 §2; 1971 c.463 §5; 1975 c.257 §2; 1981 c.77 §2; 1987 c.263 §1; 2011 c.106 §3]

657.035 Employment; effect of place of performance of service. (1) The term “employment” includes an individual’s entire service, performed within, or both within and without, this state if:

(a) The service is localized in this state; or

(b) The service is not localized in any state, and such service is not covered under the unemployment compensation law of any other state, the Virgin Islands or Canada, and

(A) The base of operations is in this state, or if there is no base of operations, then the place from which the service is directed or controlled is in this state, or

(B) The base of operations or place from which such service is directed or controlled is not in any state in which some part of the service is performed but the individual’s residence is in this state.

(2) Service performed within this state but not covered under subsection (1) of this section is employment subject to this chapter if taxes are not required and paid with respect to such services under an unemployment insurance law of any other state or of the federal government.

(3) Services not covered under subsection (1) of this section, and performed entirely without this state, with respect to no part of which taxes are required and paid under an unemployment insurance law of any other state or of the federal government, are employment subject to this chapter if the Director of the Employment Department approves the election of the employer for whom such services are performed that the entire service of such individual shall be employment subject to this chapter. Such an election may be canceled by the employer by filing a written notice with the director between January 1 and January 15 of any year stating the desire of the employer to cancel such election or at any time by submitting to the director satisfactory proof that the services designated in such election are covered by an unemployment insurance law of another state or of the federal government.

(4) Service is localized within this state if:

(a) The service is performed entirely within this state; or

(b) The service is performed both within and without this state, but the service performed without the state is incidental to the individual’s service within the state.

(5) Employment shall include the service of an individual who is a citizen of the United States, performed outside the United States (except in Canada or the Virgin Islands), in the employ of an American employer (other than service which is “employment” under the provisions of subsection (1) of this section or the parallel provisions of another state’s law), if:

(a) The employer’s principal place of business in the United States is located in this state; or

(b) The employer has no place of business in the United States, but

(A) The employer is an individual who is a resident of this state; or

(B) The employer is a corporation which is organized under the laws of this state; or

(C) The employer is a partnership or a trust and the number of the partners or trustees who are residents of this state is greater than the number who are residents of any one other state; or

(c) None of the criteria of paragraphs (a) and (b) of this subsection is met but the employer has elected coverage in this state or, the employer having failed to elect coverage in any state, the individual has filed a claim for benefits, based on such service, under the law of this state.

(6) An “American employer” for purposes of this section means a person who is:

(a) An individual who is a resident of the United States; or

(b) A partnership if two-thirds or more of the partners are residents of the United States; or

(d) A corporation organized under the laws of the United States or of any state.

(7) For the purposes of this section the term United States includes the states, the District of Columbia, and the Commonwealth of Puerto Rico. [Amended by 1971 c.463 §6; 1973 c.300 §2; 1977 c.295 §2]

657.040 Employment; when service for pay excluded; independent contractors. (1) 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 Director of the Employment Department that the individual is an independent contractor, as that term is defined in ORS 670.600.

(2) A finding that an individual performed services for an employing unit and earned less than the minimum amount necessary to qualify for benefits under ORS 657.150 based on earnings from that employing unit may not be considered in determining whether the service is employment under subsection (1) of this section. [Amended by 1967 c.303 §1; 1981 c.895 §1; 1985 c.225 §1; 1989 c.762 §6; 2005 c.533 §4]

657.042 [1981 c.895 §3; 1983 c.579 §1; repealed by 1989 c.762 §8 and 1989 c.870 §14]

657.043 Employment; golf course caddy service excluded; exceptions. “Employment” does not include service performed by a person as a caddy at a golf course in an established program for the training and supervision of caddies under the direction of a person who is an employee of the golf course. However, the provisions of this section do not apply to services performed for:

(1) A nonprofit employing unit;

(2) This state;

(3) A political subdivision of this state; or

(4) An Indian tribe. [1993 c.494 §4; 2001 c.572 §2; 2005 c.218 §8]

657.044 Employment; service by partners and corporate officers and directors who are family members excluded; exceptions. (1) As used in this chapter, “employment” does not include service performed for:

(a) A corporation by 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 if the corporation elects not to provide coverage for those individuals. The election shall be in writing and shall be effective on the first day of the current calendar quarter or of the calendar quarter preceding the calendar quarter in which the request was submitted.

(b) A limited liability company by a member, including members who are managers, as defined in ORS 63.001.

(2) The provisions of this section do not apply to service performed for:

(a) A nonprofit employing unit;

(b) This state;

(d) An Indian tribe.

(3) As used in this section, “members of the same family” means persons who are members of a family as parents, stepparents, grandparents, spouses, sons-in-law, daughters-in-law, brothers, sisters, children, stepchildren, adopted children or grandchildren. [1995 c.220 §2; 1997 c.646 §15; 1999 c.59 §195; 2001 c.572 §3; 2003 c.792 §1; 2005 c.218 §9; 2009 c.79 §1]

657.045 Employment; agricultural labor excluded; exceptions. (1) “Employment” does not include agricultural labor unless such labor is performed after December 31, 1977, for an employing unit who:

(a) During any calendar quarter in the current calendar year or the preceding calendar year paid remuneration in cash of $20,000 or more to individuals employed in agricultural labor; or

(b) On each of 20 days during the current calendar year or the preceding calendar year, each day being in a different calendar week, employed in agricultural labor for some portion of the day (whether or not at the same moment of time) 10 or more individuals.

(2) Notwithstanding subsection (1)(a) and (b) of this section, “employment” does not include services performed before January 1, 1993, by an individual who is an alien admitted to the United States to perform agricultural labor pursuant to sections 214(c) and 101(a) (15) (H) of the Immigration and Nationality Act.

(3) “Agricultural labor” does not include services performed for the state or a political subdivision but does include all services performed:

(a) On a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management of livestock, bees, poultry and fur-bearing animals and wildlife.

(b) In the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement or maintenance of such farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such services is performed on a farm.

(c) In connection with the production or harvesting of any commodity defined as an agricultural commodity in section 15(g) of the Federal Agricultural Marketing Act, as amended, or in connection with the ginning of cotton, or in connection with the operation or maintenance of ditches, canals, reservoirs or waterways not owned or operated for profit used exclusively for supplying and storing water for farming purposes.

(d) In the employ of the operator or group of operators of a farm or farms (or a cooperative organization of which such operator or operators are members) in handling, planting, drying, packing, packaging, processing, freezing, grading, storing or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity, but only if such operator or group of operators produced more than one-half of the commodity, as measured by volume, weight or other customary means, with respect to which such service is performed.

(4) Subsection (3)(d) of this section does not apply to service performed in connection with:

(a) Commercial canning, commercial freezing or brining of cherries;

(b) Any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption; or

(c) Any activity enumerated in subsection (3)(d) of this section when performed for an employer also engaged in any activity enumerated in paragraph (a) or (b) of this subsection.

(5) “Farms,” as used in this section, includes stock, dairy, poultry, fruit, fur-bearing animal, Christmas tree and truck farms, plantations, orchards, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising of agricultural or horticultural commodities.

(6) For the purpose of this section, service in connection with the raising of forestry-type seedlings is agricultural labor when performed in a nursery.

(7)(a) For purposes of this chapter, and for services performed after December 31, 1977, any individual who is a member of a crew furnished by a crew leader to perform agricultural labor for any other person shall be treated as an employee of such crew leader if:

(A) Such crew leader holds a valid certificate of registration under the federal Migrant and Seasonal Agricultural Worker Protection Act; or

(B) Substantially all the members of such crew operate or maintain mechanized equipment which is provided by such crew leader; and

(C) Such individual is not an employee of such other persons under the usual common law rules applicable in determining the employer-employee relationship.

(b) Any individual who is furnished by a crew leader to perform agricultural labor for any other person and who is not treated as an employee of such crew leader under paragraph (a) of this subsection shall be an employee of such other person and such other person shall be treated as having paid cash remuneration to such individual in an amount equal to the amount of cash remuneration paid to such individual by the crew leader, either on behalf of the crew leader or on behalf of such other person, for agricultural labor performed for such other person.

(A) Furnishes individuals to perform agricultural labor for any other person;

(B) Pays, either on behalf of the crew leader or on behalf of such other person, the individuals so furnished by the crew leader for the agricultural labor performed by them; and

(C) Has not entered into a written agreement with such other person under which such individual is designated as an employee of such other person. [Amended by 1955 c.655 §3; 1957 c.395 §1; 1971 c.463 §7; 1973 c.260 §1; 1977 c.446 §1; 1987 c.263 §2; 1989 c.631 §1; 1993 c.18 §141]

657.047 Employment; transportation of logs, poles and piling and lessor of for-hire carriers excluded; exceptions. (1) As used in this chapter, “employment” does not include:

(a) Transportation by motor vehicle of logs, poles and piling by any person who both furnishes and maintains the vehicle used in such transportation; or

(b) Transportation performed by motor vehicle for a for-hire carrier by any person that leases their equipment to a for-hire carrier and that personally operates, furnishes and maintains the equipment and provides service thereto.

(2) For the purposes of this chapter, services performed in the operation of a motor vehicle specified in subsection (1) of this section shall be deemed to be performed for the person furnishing and maintaining the motor vehicle.

(3) As used in this section “for-hire carrier” has the meaning given that term in ORS 825.005.

(4) The provisions of subsections (1) and (2) of this section do not apply to services performed for:

(a) A nonprofit employing unit;

(b) This state;

(d) An Indian tribe. [1963 c.469 §2; 1987 c.891 §3; 1995 c.306 §39; 2001 c.572 §4; 2005 c.218 §10]

657.048 Employment; language translators or interpreters excluded; exceptions. (1) “Employment” does not include services performed by language translators or interpreters that are provided for others through an agent or broker.

(2) The provisions of this section do not apply to services performed for:

(a) A nonprofit employing unit;

(b) This state;

(d) An Indian tribe. [1997 c.294 §2; 2001 c.572 §5; 2005 c.218 §11]

657.050 Employment; domestic service, child care service and certain service not in course of employer’s trade excluded; exceptions. (1) As used in this chapter, “employment” does not include:

(a) Domestic service performed in a private home, local college club or local chapter of a college fraternity or sorority, unless the domestic service is performed for an employing unit that paid to individuals employed in the domestic service cash remuneration of $1,000 or more in a calendar quarter in the current calendar year or the preceding calendar year.

(b) Child care service provided through the Department of Human Services to an individual who is the recipient of public assistance.

(c) Service not in the course of the employer’s trade or business or that does not promote or advance the trade or business of the employer unless the service is performed in each of 18 weeks in a calendar year or total payroll for the service is $1,000 or more during any calendar quarter.

(d) Child care service provided in the home of the child care provider by the provider.

(2) The provisions of subsection (1)(b) and (d) of this section do not apply to services performed for:

(a) A nonprofit employing unit;

(b) This state;

(d) An Indian tribe. [Amended by 1959 c.405 §3; 1975 c.156 §1; 1977 c.446 §2; 1993 c.444 §1; 1995 c.139 §1; 1997 c.58 §1; 2001 c.572 §6; 2005 c.218 §12; 2007 c.46 §2]

657.053 Employment; certain service on fishing boat excluded. (1) As used in this section:

(a) “Fish” includes fish or other forms of aquatic animal life.

(b) “Boat” includes one or, in the case of a fishing operation, more than one boat.

(2) “Employment” does not include service performed by an individual on a boat engaged in catching fish under an arrangement with the owner or operator of the boat when, under the arrangement:

(a) The individual does not receive any cash remuneration other than as provided in paragraph (c) of this subsection;

(b) Any cash remuneration does not exceed $100;

(c) The individual receives a share of the boat’s catch of fish or a share of the proceeds from the sale of that catch; and

(d) The amount of the individual’s share depends on the amount of the boat’s catch of fish, but only if the operating crew of the boat, or each boat from which the individual receives a share in the case of a fishing operation involving more than one boat, is normally made up of fewer than 10 individuals. [1999 c.651 §2]

657.055 [Amended by 1959 c.405 §4; repealed by 1961 c.349 §3]

657.056 Employment; maritime service. (1) “Employment” includes an individual’s entire service as an officer or member of a crew of an American vessel wherever performed and whether in intrastate or interstate or foreign commerce, if the employer maintains within this state at the beginning of the pay period an operating office from which the operations of the vessel are ordinarily and regularly supervised, managed, directed and controlled.

(2) The term “employment” shall not include:

(a) Services performed as an officer or member of the crew of a vessel not an American vessel; or

(b) Services performed by an individual not a United States citizen on or in connection with an American vessel under a contract of service which is not entered into within the United States and during the performance of which the vessel does not touch a port of the United States.

(3) “American vessel” means any vessel documented or numbered under the law of the United States and includes any vessel which is neither documented nor numbered under the laws of the United States nor documented under the laws of any foreign country if its crew is employed solely by one or more citizens or residents of the United States or corporations organized under the laws of the United States or of any state. [1961 c.349 §2; 1971 c.463 §8]

657.060 Employment; family service and foster care excluded. (1) “Employment” does not include service performed by a person in the employ of a son, daughter, or spouse, and service performed by a child under the age of 18 in the employ of the father or mother.

(2) “Employment” does not include service performed as foster care parents certified by the Department of Human Services or approved by a licensed child caring facility. [Amended by 1975 c.334 §1; 1987 c.857 §1]

Note: Section 2, chapter 857, Oregon Laws 1987, provides:

Sec. 2. If the United States Secretary of Labor serves notice that the provisions of ORS 657.060, as amended by section 1 of this Act, fail to meet the requirements of the Social Security Act or the Federal Unemployment Tax Act, then ORS 657.060 (2) shall no longer be of any force or effect. [1987 c.857 §2]

657.065 Employment; governmental service excluded; exceptions. (1) “Employment” does not include service performed in the employ of the United States Government or any instrumentality of the United States, except that if the Congress of the United States permits states to require any instrumentalities of the United States to make payments into an unemployment fund under a state unemployment insurance law, then, to the extent permitted by Congress, and after the date such permission becomes effective, this chapter shall be effective as to such instrumentalities and as to services performed for such instrumentalities in the same manner, to the same extent and on the same terms as to all other employers, employing units, individuals and services. However, if this state is not certified by the Secretary of Labor under section 3304(c) of title 26, United States Code, for any year, then the payments required of such instrumentalities with respect to such year shall be deemed to have been erroneously collected within the meaning of ORS 657.510 and shall be refunded by the Director of the Employment Department from the fund in accordance with ORS 657.510.

(2) “Employment” does not include services that are performed in the employ of the state, any political subdivision or instrumentality of the state or an Indian tribe:

(a) As an elected public official.

(b) In a position that, under or pursuant to laws of this state or tribal laws, is designated as a policymaking or advisory position the performance of the duties of which ordinarily does not require more than eight hours per week.

(d) As a member of a legislative body or a member of the judiciary.

(e) By an inmate of a custodial or penal institution when such services are performed for the custodial or penal institution in which the inmate is confined.

(f) As a member of the Oregon Army National Guard or Oregon Air National Guard.

(3) The provisions of ORS 657.425 permitting election of coverage for services that do not constitute “employment” do not apply to services performed as an elected public or tribal official.

(4) Notwithstanding the provisions of ORS 657.025, “employer” means any state government, political subdivision or Indian tribe employing unit. [Amended by 1955 c.655 §4; 1957 c.682 §2; subsection (2) enacted as 1957 c.682 §4; 1959 c.398 §2; 1959 c.665 §1; 1961 c.452 §1; 1969 c.275 §1; 1971 c.463 §9; 1973 c.715 §2; 1975 c.156 §2; 1977 c.446 §3; 2001 c.572 §7]

657.067 Employment; community work and training programs excluded; work study, work experience and work incentive programs excluded; exceptions. (1) As used in this chapter, “employment” does not include service performed or participation by applicants, recipients, beneficiaries, participants, trainees or volunteers:

(a) In a community work and training program, as defined in ORS 411.855.

(b) In an unemployment work-relief or work-training program when the program is within the meaning of section 3309(b)(5) of the Federal Unemployment Tax Act, as amended.

(d) In an AmeriCorps service program under the National and Community Service Act of 1990 (42 U.S.C. 12501 et seq.).

(2) The exclusions stated in subsection (1)(b) and (c) of this section do not apply to services performed by an individual participating in a program that, by federal law or regulation, requires unemployment insurance coverage to be provided to the individual. [1961 c.631 §6; 1965 c.291 §4; 1967 c.130 §9; 1975 c.107 §2; 1977 c.294 §2; 1979 c.267 §1; 1985 c.565 §87; 1987 c.857 §3; 2005 c.372 §1]

657.070 [Repealed by 1971 c.463 §20]

657.072 Employment; certain nonprofit services excluded. “Employment” does not include service performed for a nonprofit employing unit by an individual receiving rehabilitation or remunerative work in a facility conducted for the purpose of carrying out a program of rehabilitation for individuals whose earning capacity is impaired by age or physical or mental deficiency or injury, or providing remunerative work for individuals who because of their impaired physical or mental capacity cannot be readily absorbed in the competitive labor market. [1971 c.463 §4; 1973 c.118 §1; 1977 c.446 §4; 1999 c.59 §196; 2005 c.218 §1]

657.075 Employment; service under Railroad Unemployment Insurance Act excluded. “Employment” does not include service performed under the Railroad Unemployment Insurance Act (52 Stat. 1094).

657.078 Employment; stringer, correspondent and photographer services for media excluded. “Employment” does not include services performed by an individual as a stringer, correspondent or photographer, for print or broadcast media, who submits information, stories or pictures by the piece or at a flat rate to newspapers, special publications, television or radio if the individual is free from direction and control over the means and manner of providing the services. However, this section does not apply to services performed for a nonprofit employing unit for this state, for a political subdivision of this state or for an Indian tribe. [2005 c.533 §9; 2007 c.71 §208]

657.080 Employment; news delivery service excluded. “Employment” does not include service performed by an individual:

(1) In the delivery or distribution of newspapers or shopping news, not including delivery or distribution to any point for subsequent delivery or distribution.

(2) In the delivery or distribution of newspapers whose remuneration primarily consists of the difference between the amount the individual pays or is obligated to pay for the newspapers and the amount the individual receives or is entitled to receive on distribution or resale thereof. [Amended by 1975 c.257 §3]

657.085 Employment; service by certain agents, brokers, producers and salespersons excluded. “Employment” does not include service performed by any person as a newspaper advertising salesperson, real estate broker, principal real estate broker, insurance producer or securities salesperson or agent to the extent that the person is compensated by commission. [Amended by 1965 c.131 §1; 1979 c.521 §2; 2001 c.300 §55; 2003 c.364 §53]

657.087 Employment; service by individuals soliciting contracts for home improvements and consumer goods sales excluded. “Employment” does not include service performed:

(1) By individuals soliciting contracts for home improvements including roofing, siding and alterations of private homes to the extent that the remuneration consists of commissions, or a share of the profit realized on each contract; or

(2) By individuals to the extent that the compensation consists of commissions, overrides or a share of the profit realized on orders solicited or sales resulting from the in-person solicitation of orders for and making sales of consumer goods in the home. [1961 c.320 §2; 1977 c.101 §1]

657.088 Employment; certain sports officiating services excluded. (1) As used in this chapter, “employment” does not include officiating services performed by individuals in recreational, interscholastic or intercollegiate sporting events or contests.

(2) As used in this section:

(a) “Officiating services” means overseeing the play of a sporting event or contest, judging whether the rules are being followed and penalizing participants for infringing the rules.

(b) “Sporting event or contest” means any sporting competition in which the participants are not professional athletes or contestants or are not remunerated for their participation.

(3) Subsection (1) of this section does not apply to officiating services performed for:

(a) A nonprofit employing unit;

(b) This state;

(d) An Indian tribe. [2011 c.106 §2]

657.090 Employment; petroleum products distributors excluded. “Employment” does not include service performed by an individual or partnership in the wholesale distribution of petroleum products whose remuneration for such service primarily consists of the difference between the amount the individual or partnership pays or is obligated to pay for the petroleum products and the amount the individual or partnership receives or is entitled to receive from the sale thereof or whose remuneration for such service primarily consists of commissions. [Amended by 1961 c.252 §7]

657.091 Employment; food product demonstrators excluded. “Employment” does not include service performed by individuals who, on a temporary, part-time basis, demonstrate or give away samples of food products, as part of an advertising or sales promotion for the product, in stores that sell food at retail and who are not otherwise directly employed by the manufacturer, distributor or retailer. [1987 c.891 §2]

657.092 Employment; nonprofit organization employees and contestants excluded. (1) “Employment” does not include service performed by an individual as a director, designer, performer, musician, technical crew member, house or business person, contestant, beauty queen or member of a court for or on behalf of a nonprofit organization in connection with a symphony, opera, play, pageant, festival, rodeo or similar event operated by such organization when the remuneration for such service consists solely of a gratuity, prize, scholarship or reimbursement of expenses.

(2) As used in this section:

(a) “Contestant” means a person competing in a competition in a pageant, festival, rodeo or similar event.

(b) “Gratuity” means a voluntary return for a service and does not include commissions or other amounts paid pursuant to an agreement reached at the time the individual agrees to perform a service for the organization.

(c) “Nonprofit organization” means an organization or group of organizations described in sections 501(c)(3) to 501(c)(10) of the Internal Revenue Code which is exempt from income tax under section 501(a) of the Internal Revenue Code.

(d) “Prize” means a reward received for winning a competition in a pageant, festival, rodeo or similar event.

(e) “Reimbursement for expenses” means a payment made in lieu of salary to compensate an individual for transportation costs to the location of the service and return, and ordinary living expenses while in the vicinity of the event in which the individual is participating.

(f) “Scholarship” means a grant provided for the purpose of paying part of the tuition or other costs of attending an educational institution or institution of higher education and payable to the institution of the individual’s choice. [1981 c.636 §2; 1983 c.508 §15; 2007 c.71 §209]

657.093 Employment; certain services provided in exchange for ski passes excluded. (1) As used in this chapter, “employment” does not include service provided in conjunction with skiing activities or events for a nonprofit employing unit by a person who receives no remuneration other than ski passes for the service provided.

(2) The provisions of subsection (1) of this section apply only to the extent permitted by 26 U.S.C. 3306(c)(10)(A). [2008 c.32 §5]

657.094 Employment; down-river boating activities excluded. “Employment” does not include service performed by an individual in connection with the transportation of the public for recreational down-river boating activities on the waters of this state pursuant to a federal permit when the person furnishes the equipment necessary for the activity. As used in this section, “recreational down-river boating activities” means those boating activities for the purpose of recreational fishing, swimming or sightseeing utilizing a float craft with oars or paddles as the primary source of power. [1981 c.444 §3]

657.095 Payroll. (1) As used in this chapter, unless the context requires otherwise, “payroll” means all wages paid to employees in any employment subject to this chapter. However, for payroll tax purposes pursuant to this chapter, “wages” excludes remuneration received by an employee from each employer in any calendar year that is in excess of an amount obtained by multiplying the average annual wage for the second preceding calendar year by 0.80 and rounding the result to the nearest multiple of $100. The average annual wage shall be determined by dividing the total wages paid by subject employers during the year by the average monthly employment reported by subject employers for the year. However, a payroll, as calculated pursuant to this section, may not in any year be less than the amount in effect during the preceding calendar year.

(2) The remuneration paid by an employer located in this state for work performed in other states by an employee who works part of the time in a calendar year in this and other states shall be included in payroll when the work in the other states is covered by unemployment insurance laws. The Director of the Employment Department shall prescribe the manner of providing proof of the payment of payroll taxes on the wages of an employee earned while working in other states. [Amended by 1955 c.655 §6; 1959 c.606 §1; 1965 c.205 §1; 1971 c.463 §10; 1973 c.300 §3; 1973 c.810 §1; 1975 c.354 §1; 1983 c.508 §2; 1995 c.79 §331; 2005 c.183 §4]

657.097 Political subdivision. As used in this chapter, “political subdivision” means any county, city, district organized for public purposes, or any other political subdivision or public corporation, including any entity organized pursuant to ORS 190.003 to 190.620. [1957 c.682 §5; 1977 c.446 §5]

657.100 Unemployment; rules. (1) An individual is deemed “unemployed” in any week during which the individual performs no services and with respect to which no remuneration for services performed is paid or payable to the individual, or in any week of less than full-time work if the remuneration paid or payable to the individual for services performed during the week is less than the individual’s weekly benefit amount.

(2) For the purposes of ORS 657.155 (1), an individual who performs full-time services in any week for an employing unit is not unemployed even though remuneration is neither paid nor payable to the individual for the services performed; however, nothing in this subsection shall prevent an individual from meeting the definition of “unemployed” as used in this section solely by reason of the individual’s performance of volunteer services without remuneration for a charitable institution or a governmental entity.

(3) The Director of the Employment Department shall prescribe rules as the director deems necessary with respect to the various types of unemployment. [Amended by 1981 c.77 §3]

657.105 Wages; generally. (1) As used in this chapter, unless the context requires otherwise, and subject to ORS 657.115 to 657.140, “wages” means all remuneration for employment, including the cash value, as determined by the Director of the Employment Department under the regulations of the director, of all remuneration paid in any medium other than cash.

(2) Notwithstanding the provisions of subsection (1) of this section, noncash remuneration paid for services performed in agricultural labor or domestic service shall not be considered remuneration or wages for any purpose under this chapter. [Amended by 1975 c.257 §4; 1977 c.446 §6]

657.110 [Repealed by 1973 c.300 §15]

657.115 Wages; exclusion of fringe benefits. (1) “Wages” does not include the amount of any payment made to, or on behalf of, an individual or any of the individual’s dependents on account of:

(a) Retirement.

(b) Sickness or accident disability under a workers’ compensation law.

(d) Death.

(e) Dependent care assistance furnished pursuant to a program that meets the requirements of section 129(d) of the Internal Revenue Code, to the extent the assistance does not exceed the earned income limitation in section 129(b) of the Internal Revenue Code.

(2) For purposes of this section, “payment made” includes amounts paid by an employing unit for insurance or annuities or into a fund.

(3) This section does not apply unless the payment is made under a plan or system established by an employing unit which makes provision generally:

(a) For individuals performing service for it or for such individuals generally and their dependents; or

(b) For a class or classes of such individuals or for a class or classes of such individuals and their dependents. [Amended by 1981 c.77 §4; 1983 c.508 §3; 1991 c.803 §1; 2005 c.283 §1; 2007 c.614 §17]

657.117 Wages; inclusion of federal taxes and tips. “Wages” as used in ORS 657.105 includes:

(1) The amount of any tax imposed upon an employee and paid by an employer pursuant to sections 3121(a)(6) and 3306(b)(6) of the Internal Revenue Code.

(2) Tips reported by the employer pursuant to section 3306 of the Internal Revenue Code. [Amended by 1981 c.77 §9; 1983 c.508 §4; 1985 c.507 §2; 2007 c.614 §18]

657.120 Wages; exclusion of retirement benefits. “Wages” does not include the amount of any payment made by an employing unit on behalf of an individual performing service for it for insurance or annuities, or into a fund, to provide for any such payment, on account of retirement. [Amended by 1981 c.77 §5]

657.125 Wages; exclusion of disability benefits. “Wages” does not include the amount of any payment made on account of sickness or accident disability, or medical or hospitalization expenses in connection with sickness or accident disability, by an employing unit to, or on behalf of, an individual performing service for it after the expiration of six calendar months following the last calendar month in which the individual worked for such employing unit. [Amended by 1981 c.77 §6]

657.130 Wages; exclusion of payments from certain trusts and annuities. “Wages” does not include the amount of any payment made by an employing unit to, or on behalf of, an individual performing service for it, or the individual’s beneficiary:

(1) From or to a trust exempt from tax under section 401(a) of the United States Code at the time of such payment unless such payment is made to an individual performing service for the trust as remuneration for such service and not as a beneficiary of the trust; or

(2) Under or to an annuity plan which, at the time of such payment, meets the requirements of section 401(a) of the United States Code. [Amended by 1973 c.300 §4; 1981 c.77 §7]

657.135 Wages; exclusion of payments to persons over 65. “Wages” does not include the amount of any payment, other than vacation or sick pay, made to an individual after the month in which the individual attains the age of 65 years, if the individual did not work for the employing unit in the period for which such payment is made. [Amended by 1981 c.77 §8]

657.140 Wages; exclusion of assistance to individuals under community work and training program. As used in this chapter, “wages” or “remuneration” does not include the amount or value of public assistance provided in cash or in kind in consequence of participation in a community work and training program, as defined in ORS 411.855. [1961 c.631 §7; 1965 c.291 §5; 1967 c.130 §10]

BENEFITS AND CLAIMS

(Income Tax Consequences of Benefits)

657.144 Notice to individual of effect of filing claim for benefits. An individual filing a new claim for benefits under this chapter shall, at the time the claim is filed with the Employment Department, be advised that:

(1) Benefits are subject to federal and state income tax;

(2) Federal and state law may require that a recipient of benefits make quarterly estimated tax payments during the tax year in which the benefits are received;

(3) Federal and state law may impose penalties on a recipient of benefits for the failure to timely make estimated tax payments; and

(4) A recipient of benefits may elect under ORS 657.146 to have amounts withheld from the recipient’s payment of benefits for federal and state income tax purposes at the amount specified in:

(a) The federal Internal Revenue Code for the voluntary withholding of unemployment benefits for federal income tax purposes; and

(b) ORS 657.146 for the voluntary withholding of unemployment benefits for state income tax purposes. [1995 c.556 §54; 1997 c.133 §1]

657.145 [1977 c.447 §2; repealed by 1983 c.508 §14]

657.146 Withholding from benefits for tax purposes; rules. (1) A claimant may elect to have an amount withheld from benefits otherwise payable to the claimant.

(2) An election made under this section shall be on such form and in such manner as prescribed by the Employment Department.

(3) A claimant making an election under this section may terminate the election at any time.

(4) The amount to be withheld by the Employment Department from a payment of benefits to a claimant making the election under this section shall be the total of:

(a) The amount determined under the rules of the federal Internal Revenue Code relating to the voluntary withholding of amounts from unemployment benefits, for federal income tax purposes; and

(b) An amount equal to six percent of the payment to which the claimant would be entitled but for the election made under this section, for state income tax purposes.

(5) Amounts withheld by the Employment Department pursuant to an election made under this section shall remain in the Unemployment Compensation Trust Fund established under ORS 657.805. Those amounts allocable to federal income tax withholding shall be transferred by the Employment Department to the federal Internal Revenue Service in the time and manner provided by federal law and those amounts allocable to state income tax withholding shall be transferred to the Department of Revenue in the time and manner provided by the Department of Revenue by rule. [1995 c.556 §55; 1997 c.133 §2]

657.148 Compliance with federal requirements for collection and payment of federal taxes. For purposes of ORS 657.144 and 657.146, the Employment Department shall follow the procedures and regulations adopted by the United States Department of Labor and the federal Internal Revenue Service that relate to the collection and payment of federal income tax withholding amounts on benefits paid to individuals under this chapter. [1995 c.556 §56; 1997 c.133 §3]

(Generally)

657.150 Amount of benefits; length of employment and wages necessary to qualify for benefits; rules. (1) An individual shall be paid benefits for weeks during the benefit year in an amount which is to be determined by taking into account the individual’s work in subject employment in the base year as provided in this section.

(2)(a) To qualify for benefits an individual must have:

(A) Worked in subject employment in the base year with total base year wages of $1,000 or more and have total base year wages equal to or in excess of one and one-half times the wages in the highest quarter of the base year; and

(B) Have earned wages in subject employment equal to six times the individual’s weekly benefit amount in employment for service performed subsequent to the beginning of a preceding benefit year if benefits were paid to the individual for any week in the preceding benefit year.

(b) If the individual does not meet the requirements of paragraph (a)(A) of this subsection, the individual may qualify for benefits if the individual has worked a minimum of 500 hours in employment subject to this chapter during the base year.

(3) If the wages paid to an individual are not based upon a fixed period of time or if wages are paid at irregular intervals or in such manner as not to extend regularly over the period of employment, for the purposes of subsections (2) to (5) of this section, the individual’s wages shall be allocated in accordance with rules prescribed by the Director of the Employment Department. Such rules shall, insofar as possible, produce results the same as those which would exist if the individual had been paid wages at regular intervals. The director may adopt rules to attribute hours of work to an individual if the individual is not paid on an hourly basis or if the employer does not report the number of hours worked.

(4) An eligible individual’s weekly benefit amount shall be 1.25 percent of the total wages paid in the individual’s base year. However, such amount shall not be less than the minimum, nor more than the maximum weekly benefit amount.

(a) The minimum weekly benefit amount shall be 15 percent (0.1500) of the state average weekly covered wage for the preceding calendar year, effective for any benefit year commencing on and after the week which includes July 4, 1975, and the week that includes each July 4 thereafter.

(b) The maximum weekly benefit amount shall be:

(A) Fifty-five percent (0.5500) of the state average weekly covered wage for calendar year 1979, effective for any benefit year commencing with and after the week which includes July 4, 1980, and through any benefit year commencing with the week which includes June 27, 1981.

(B) Fifty-five percent (0.5500) of the state average weekly covered wage for calendar year 1980, effective for any benefit year commencing with and after the week which includes July 4, 1981, through any benefit year commencing with the week which includes September 27, 1981.

(C) Fifty-eight percent (0.5800) of the state average weekly covered wage for calendar year 1980, effective for any benefit year commencing with and after the week which includes October 4, 1981, through any benefit year commencing with the week which includes June 27, 1982.

(D) Sixty percent (0.6000) of the state average weekly covered wage for calendar year 1981, effective for any benefit year commencing with and after the week which includes July 4, 1982, through any benefit year commencing with the week which includes June 27, 1983.

(E) Sixty-four percent (0.6400) of the state average covered weekly wage for the preceding calendar year, effective for any benefit year commencing with and after the week which includes July 4, 1983, and the week which includes each July 4 thereafter.

(d) For the purposes of this subsection, the state average weekly covered wage means an amount determined by the Employment Department by dividing the total wages paid by subject employers during the year by 52 times the average monthly employment reported by subject employers for the year.

(5) Benefits paid to an eligible individual in a benefit year shall not exceed 26 times the individual’s weekly benefit amount, or one-third of the base year’s wages paid, whichever is the lesser. If such amount is not a multiple of $1, it shall be computed to the next lower multiple of $1.

(6) An eligible unemployed individual who has employment in any week shall have the individual’s weekly benefit amount reduced by the amount of earnings paid or payable that exceeds whichever is the greater of the following amounts:

(a) Ten times the minimum hourly wage established by the laws of this state; or

(b) One-third of the individual’s weekly benefit amount.

(7) Payment which has been, is or will be paid to an individual for a holiday or vacation shall be considered as earnings in the determination of the amount of benefits payable with respect to the week in which the holiday or vacation falls in the same manner as provided in subsection (6) of this section. However, if payment for the holiday or vacation is paid more than 45 days prior to the holiday or vacation or is delayed more than 45 days following the end of the week in which the holiday or vacation falls, the provisions of this section do not apply and previously reduced benefits shall be adjusted accordingly.

(8) Payment which has been, or will be made to an individual as a member of a reserve component of the Armed Forces of the United States, including the organized militia of the State of Oregon, for the performance of inactive duty training shall not be considered as earnings in the determination of the amount of benefits payable. [1955 c.655 §15; 1957 c.699 §1; 1959 c.567 §1; 1961 c.211 §1; 1963 c.441 §1; 1967 c.434 §1; 1969 c.569 §1; 1971 c.463 §13; 1971 c.521 §1; 1973 c.146 §1; 1973 c.535 §1; 1975 c.661 §2; 1977 c.670 §1; 1981 c.77 §10; 1981 c.751 §1; 1983 c.51 §1; 1987 c.257 §1; 1989 c.897 §1; 1995 c.104 §1; 1995 c.105 §4; 1995 c.153 §1]

657.152 Adjusting benefits to even dollar amounts. Notwithstanding any other provision of this chapter to the contrary, any amount of unemployment compensation payable to any individual for any week if not an even dollar amount, shall be rounded to the next lower full dollar amount. [1983 c.51 §4]

657.155 Benefit eligibility conditions; rules. (1) An unemployed individual shall be eligible to receive benefits with respect to any week only if the Director of the Employment Department finds that:

(a) The individual has registered for work at and thereafter has continued to report at an employment office in accordance with such rules as the director may prescribe. However, the director may, by rule, waive or alter either or both of the requirements of this subsection as to individuals attached to regular jobs and as to such other types of cases or situations with respect to which the director finds that compliance with such requirements would be oppressive, or would be inconsistent with the purposes of this chapter; provided, that no such rule conflicts with ORS 657.255.

(b) The individual has made a claim for benefits with respect to such week in accordance with ORS 657.260.

(c) The individual is able to work, is available for work, and is actively seeking and unable to obtain suitable work. No individual participating in a community work and training program, as defined in ORS 411.855, shall, solely by reason thereof, be unavailable for work within the meaning of this section.

(d) The individual has been unemployed for a waiting period of one week, unless the Governor has waived the required waiting period as provided in ORS 401.186.

(e) The individual is not disqualified from benefits or ineligible for benefits under any other section of this chapter.

(f) The individual is qualified for benefits under ORS 657.150.

(2) An individual who leaves the normal labor market area of the individual for the major portion of any week is presumed to be unavailable for work within the meaning of this section. This presumption may be overcome if the individual establishes to the satisfaction of the director that the individual has conducted a bona fide search for work and has been reasonably accessible to suitable work in the labor market area in which the individual spent the major portion of the week to which the presumption applies.

(3) The director shall either promptly allow credit or pay benefits for any week for which benefits are claimed or promptly give notice of denial thereof in the manner provided in ORS 657.267 and 657.268. [Amended by 1955 c.655 §7; 1961 c.631 §8; 1967 c.130 §11; 1973 c.398 §1; 1977 c.295 §3; 1979 c.521 §1; 1993 c.778 §11; 2008 c.23 §3]

Note: Section 4, chapter 23, Oregon Laws 2008, provides:

Sec. 4. Sections 1 and 2 [401.186] of this 2008 Act and the amendments to ORS 657.155 by section 3 of this 2008 Act become operative when federal law permits without penalty a waiver under section 2 of this 2008 Act of the one-week waiting period required by ORS 657.155. [2008 c.23 §4]

657.156 Reemployment service assistance; eligibility; rules. (1) The Employment Department shall:

(a) Identify eligible individuals who are likely to exhaust benefits payable under ORS 657.150 and who will need reemployment service assistance to make a successful transition to new employment; and

(b) Refer individuals identified under paragraph (a) of this subsection for any reemployment services available under state or federal law. Such services may include job search assistance, job placement services, counseling, testing, providing occupational and labor market information, assessment and referrals to employers.

(2) An eligible unemployed individual shall be eligible to receive benefits with respect to any week only if the individual participates in reemployment services including but not limited to job search assistance services, if the individual has been determined to be likely to exhaust regular benefits and to need reemployment services pursuant to a profiling system established by the Director of the Employment Department, unless the director determines that:

(a) The individual has completed such services; or

(b) There is justifiable cause for the individual’s failure to participate in such services.

(3) In adopting rules to carry out the provisions of this section, the director, insofar as practicable, shall comply with rules and policies of the United States Department of Labor. [1995 c.193 §2]

Note: 657.156 was added to and made a part of ORS chapter 657 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

657.157 [1989 c.897 §3; repealed by 1995 c.104 §2]

657.158 Self-employment assistance; eligibility; amounts payable; rules. (1) As used in this section:

(a) “Regular benefits” means benefits payable to an individual under this chapter, including benefits payable to federal civilian employees and to ex-servicemembers under 5 U.S.C. chapter 85, but not including additional benefits or extended benefits payable under ORS 657.321 to 657.329 or 657.331 to 657.334.

(b) “Self-employment assistance activities” means activities approved by the Director of the Employment Department in which individuals, identified under ORS 657.156 as likely to exhaust benefits, participate for the purpose of enabling those individuals to establish a business and become self-employed. “Self-employment assistance activities” includes, but is not limited to, entrepreneurial training, business counseling and technical assistance.

(c) “Self-employment assistance allowance” means an amount, payable in lieu of regular benefits under this chapter, to an individual participating in self-employment assistance activities in accordance with this section. Self-employment assistance allowance amounts shall be paid from the Unemployment Compensation Benefit Fund.

(2) The weekly amount of the self-employment assistance allowance payable to an individual is equal to the weekly regular benefit amount. The sum of the self-employed assistance allowance paid under this section and the regular benefits paid under this chapter with respect to any benefit year shall not exceed the maximum benefit amount payable under ORS 657.150 (5) with respect to that benefit year.

(3) The self-employment assistance allowance shall be payable to an individual at the same intervals and on the same terms and conditions as regular benefits under this chapter except that:

(a) The provisions of this chapter regarding being available for work, actively seeking work and refusing to accept suitable work are not applicable to such an individual.

(b) The provisions of ORS 657.150 (6) relating to remuneration for services performed are not applicable to income earned from self-employment by such an individual.

(c) An individual participating in self-employment assistance activities shall be considered to be unemployed under ORS 657.100.

(d) An individual who fails to participate in self-employment assistance activities or who fails actively to engage on a full-time basis in establishing a business and becoming self-employed is ineligible to receive the self-employment assistance allowance for each week in which such failure occurs.

(4) The number of individuals receiving the self-employment assistance allowance at any time shall not exceed five percent of the number of individuals receiving regular benefits.

(5) The self-employment assistance allowance shall be charged to employers in the manner provided in this chapter for the charging of regular benefits.