Bill Text: OR HB3141 | 2013 | Regular Session | Introduced

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Bill Title: Relating to direct sales; prescribing an effective date.

Spectrum: Committee Bill

Status: (Failed) 2013-07-08 - In committee upon adjournment. [HB3141 Detail]

Download: Oregon-2013-HB3141-Introduced.html

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     77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 3517

                         House Bill 3141

Sponsored by COMMITTEE ON BUSINESS AND LABOR

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Excludes certain direct sales from definition of ' employment'
for purposes of unemployment insurance taxation.  Excludes
certain direct sellers from definition of 'covered workers' for
purposes of workers' compensation.
  Takes effect on 91st day following adjournment sine die.

                        A BILL FOR AN ACT
Relating to direct sales; creating new provisions; amending ORS
  656.027 and 657.087; and prescribing an effective date.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 657.087 is amended to read:
  657.087.  { + As used in this chapter, + } '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 - }  { + , if + } the
remuneration consists of commissions  { - , - }  or a share of
the profit realized on each contract; or
  (2) By individuals   { - to the extent that - }  { +  as direct
sellers of other than home improvements if + } the compensation
 { + does not include salary or wages but + } 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 - }   { + or + } making
sales of consumer goods  { + or services + } in the home { +  or
elsewhere, other than in a permanent retail establishment + }.
  SECTION 2. ORS 656.027 is amended to read:
  656.027. All workers are subject to this chapter except those
nonsubject workers described in the following subsections:
  (1) A worker employed as a domestic servant in or about a
private home. For the purposes of this subsection 'domestic
servant' means any worker engaged in household domestic service
by private employment contract, including, but not limited to,
home health workers.
  (2) A worker employed to do gardening, maintenance, repair,
remodeling or similar work in or about the private home of the
person employing the worker.
  (3)(a) A worker whose employment is casual and either:
  (A) The employment is not in the course of the trade, business
or profession of the employer; or

  (B) The employment is in the course of the trade, business or
profession of a nonsubject employer.
  (b) For the purpose of this subsection, 'casual' refers only to
employments where the work in any 30-day period, without regard
to the number of workers employed, involves a total labor cost of
less than $500.
  (4) A person for whom a rule of liability for injury or death
arising out of and in the course of employment is provided by the
laws of the United States.
  (5) A worker engaged in the transportation in interstate
commerce of goods, persons or property for hire by rail, water,
aircraft or motor vehicle, and whose employer has no fixed place
of business in this state.
  (6) Firefighter and police employees of any city having a
population of more than 200,000 that provides a disability and
retirement system by ordinance or charter.
  (7)(a) Sole proprietors, except those described in paragraph
(b) of this subsection. When labor or services are performed
under contract, the sole proprietor must qualify as an
independent contractor.
  (b) Sole proprietors actively licensed under ORS 671.525 or
701.021. When labor or services are performed under contract for
remuneration, notwithstanding ORS 656.005 (30), the sole
proprietor must qualify as an independent contractor. Any sole
proprietor licensed under ORS 671.525 or 701.021 and involved in
activities subject thereto is conclusively presumed to be an
independent contractor.
  (8) Except as provided in subsection (23) of this section,
partners who are not engaged in work performed in direct
connection with the construction, alteration, repair,
improvement, moving or demolition of an improvement on real
property or appurtenances thereto. When labor or services are
performed under contract, the partnership must qualify as an
independent contractor.
  (9) Except as provided in subsection (25) of this section,
members, including members who are managers, of limited liability
companies, regardless of the nature of the work performed.
However, members, including members who are managers, of limited
liability companies with more than one member, while engaged in
work performed in direct connection with the construction,
alteration, repair, improvement, moving or demolition of an
improvement on real property or appurtenances thereto, are
subject workers. When labor or services are performed under
contract, the limited liability company must qualify as an
independent contractor.
  (10) Except as provided in subsection (24) of this section,
corporate officers who are directors of the corporation and who
have a substantial ownership interest in the corporation,
regardless of the nature of the work performed by such officers,
subject to the following limitations:
  (a) If the activities of the corporation are conducted on land
that receives farm use tax assessment pursuant to ORS chapter
308A, corporate officer includes all individuals identified as
directors in the corporate bylaws, regardless of ownership
interest, and who are members of the same family, whether related
by blood, marriage or adoption.
  (b) If the activities of the corporation involve the commercial
harvest of timber and all officers of the corporation are members
of the same family and are parents, daughters or sons,
daughters-in-law or sons-in-law or grandchildren, then all such
officers may elect to be nonsubject workers. For all other
corporations involving the commercial harvest of timber, the
maximum number of exempt corporate officers for the corporation
shall be whichever is the greater of the following:
  (A) Two corporate officers; or
  (B) One corporate officer for each 10 corporate employees.
  (c) When labor or services are performed under contract, the
corporation must qualify as an independent contractor.
  (11) A person performing services primarily for board and
lodging received from any religious, charitable or relief
organization.
  (12) A newspaper carrier utilized in compliance with the
provisions of ORS 656.070 and 656.075.
  (13) A person who has been declared an amateur athlete under
the rules of the United States Olympic Committee or the Canadian
Olympic Committee and who receives no remuneration for
performance of services as an athlete other than board, room,
rent, housing, lodging or other reasonable incidental subsistence
allowance, or any amateur sports official who is certified by a
recognized Oregon or national certifying authority, which
requires or provides liability and accident insurance for such
officials. A roster of recognized Oregon and national certifying
authorities will be maintained by the Department of Consumer and
Business Services, from lists of certifying organizations
submitted by the Oregon School Activities Association and the
Oregon Park and Recreation Society.
  (14) Volunteer personnel participating in the ACTION programs,
organized under the Domestic Volunteer Service Act of 1973, P.L.
93-113, known as the Foster Grandparent Program and the Senior
Companion Program, whether or not the volunteers receive a
stipend or nominal reimbursement for time and travel expenses.
  (15) A person who has an ownership or leasehold interest in
equipment and who furnishes, maintains and operates the
equipment.  As used in this subsection 'equipment' means:
  (a) A motor vehicle used in the transportation of logs, poles
or piling.
  (b) A motor vehicle used in the transportation of rocks,
gravel, sand, dirt or asphalt concrete.
  (c) A motor vehicle used in the transportation of property by a
for-hire motor carrier that is required under ORS 825.100 or
825.104 to possess a certificate or permit or to be registered.
  (16) A person engaged in 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 subsection,
' 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.
  (17) A person who receives no wage other than ski passes or
other noncash remuneration for performing volunteer:
  (a) Ski patrol activities; or
  (b) Ski area program activities sponsored by a ski area
operator, as defined in ORS 30.970, or by a nonprofit corporation
or organization.
  (18) A person 19 years of age or older who contracts with a
newspaper publishing company or independent newspaper dealer or
contractor to distribute newspapers to the general public and
perform or undertake any necessary or attendant functions related
thereto.
  (19) A person performing foster parent or adult foster care
duties pursuant to ORS 412.001 to 412.161 and 412.991 or ORS
chapter 411, 418, 430 or 443.
  (20) A person performing services on a volunteer basis for a
nonprofit, religious, charitable or relief organization, whether
or not such person receives meals or lodging or nominal
reimbursements or vouchers for meals, lodging or expenses.
  (21) A person performing services under a property tax work-off
program established under ORS 310.800.
  (22) A person who performs service 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.
  (23)(a) Partners who are actively licensed under ORS 671.525 or
701.021 and who have a substantial ownership interest in a
partnership. If all partners are members of the same family and
are parents, spouses, sisters, brothers, daughters or sons,
daughters-in-law or sons-in-law or grandchildren, all such
partners may elect to be nonsubject workers. For all other
partnerships licensed under ORS 671.510 to 671.760 or 701.021,
the maximum number of exempt partners shall be whichever is the
greater of the following:
  (A) Two partners; or
  (B) One partner for each 10 partnership employees.
  (b) When labor or services are performed under contract for
remuneration, notwithstanding ORS 656.005 (30), the partnership
qualifies as an independent contractor. Any partnership licensed
under ORS 671.525 or 701.021 and involved in activities subject
thereto is conclusively presumed to be an independent contractor.
  (24)(a) Corporate officers who are directors of a corporation
actively licensed under ORS 671.525 or 701.021 and who have a
substantial ownership interest in the corporation, regardless of
the nature of the work performed. If all officers of the
corporation are members of the same family and are parents,
spouses, sisters, brothers, daughters or sons, daughters-in-law
or sons-in-law or grandchildren, all such officers may elect to
be nonsubject workers. For all other corporations licensed under
ORS 671.510 to 671.760 or 701.021, the maximum number of exempt
corporate officers shall be whichever is the greater of the
following:
  (A) Two corporate officers; or
  (B) One corporate officer for each 10 corporate employees.
  (b) When labor or services are performed under contract for
remuneration, notwithstanding ORS 656.005 (30), the corporation
qualifies as an independent contractor. Any corporation licensed
under ORS 671.525 or 701.021 and involved in activities subject
thereto is conclusively presumed to be an independent contractor.
  (25)(a) Limited liability company members who are members of a
company actively licensed under ORS 671.525 or 701.021 and who
have a substantial ownership interest in the company, regardless
of the nature of the work performed. If all members of the
company are members of the same family and are parents, spouses,
sisters, brothers, daughters or sons, daughters-in-law or
sons-in-law or grandchildren, all such members may elect to be
nonsubject workers. For all other companies licensed under ORS
671.510 to 671.760 or 701.021, the maximum number of exempt
company members shall be whichever is the greater of the
following:
  (A) Two company members; or
  (B) One company member for each 10 company employees.
  (b) When labor or services are performed under contract for
remuneration, notwithstanding ORS 656.005 (30), the company
qualifies as an independent contractor. Any company licensed
under ORS 671.525 or 701.021 and involved in activities subject
thereto is conclusively presumed to be an independent contractor.
  (26) A person serving as a referee or assistant referee in a
youth or adult recreational soccer match whose services are
retained on a match-by-match basis.
  (27) A person performing language translator or interpreter
services that are provided for others through an agent or broker.
  (28) A person who operates, and who has an ownership or
leasehold interest in, a passenger motor vehicle that is operated
as a taxicab or for nonemergency medical transportation. As used
in this subsection:
  (a) 'Lease' means a contract under which the lessor provides a
vehicle to a lessee for consideration.

  (b) 'Leasehold' includes, but is not limited to, a lease for a
shift or a longer period.
  (c) 'Passenger motor vehicle that is operated as a taxicab '
means a vehicle that:
  (A) Has a passenger seating capacity that does not exceed seven
persons;
  (B) Is transporting persons, property or both on a route that
begins or ends in Oregon; and
  (C)(i) Carries passengers for hire when the destination and
route traveled may be controlled by a passenger and the fare is
calculated on the basis of any combination of an initial fee,
distance traveled or waiting time; or
  (ii) Is in use under a contract to provide specific service to
a third party to transport designated passengers or to provide
errand services to locations selected by the third party.
  (d) 'Passenger motor vehicle that is operated for nonemergency
medical transportation' means a vehicle that:
  (A) Has a passenger seating capacity that does not exceed seven
persons;
  (B) Is transporting persons, property or both on a route that
begins or ends in Oregon; and
  (C) Provides medical transportation services under contract
with or on behalf of a mass transit or transportation district.
   { +  (29)(a) A person who solicits contracts for home
improvements, including roofing, siding and alterations of
private homes, if the person's remuneration consists of
commissions or a share of the profit realized on each contract;
or
  (b) A direct seller of other than home improvements if the
direct seller's compensation does not include salary or wages but
consists of commissions, overrides or a share of the profit
realized on orders solicited or sales resulting from the
solicitation of orders for or making sales of consumer goods or
services in the home or elsewhere, other than in a permanent
retail establishment. + }
  SECTION 3.  { + (1) The amendments to ORS 657.087 by section 1
of this 2013 Act apply to service performed on or after the
effective date of this 2013 Act.
  (2) The amendments to ORS 656.027 by section 2 of this 2013 Act
apply to solicitation of contracts and sales on or after the
effective date of this 2013 Act. + }
  SECTION 4.  { + This 2013 Act takes effect on the 91st day
after the date on which the 2013 regular session of the
Seventy-seventh Legislative Assembly adjourns sine die. + }
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