September 2013 Monthly Independent Contractor Compliance And Misclassification Update

In the Courts

• Oregon Court of Appeals concludes that some musicians performing with the Portland Columbia Symphony were independent contractors under the state's unemployment law. In applying the state statute, the Court disagreed with the Administrative Law Judge's decision that all of the musicians were employees. Although all of the musicians played a particular instrument, played only the music selected by the conductor, and had to appear at the work location in concert attire, the Court did not view those factors as evidencing direction and control over the manner and means of the services performed. However, the Court found that only some of the musicians satisfied the statute's requirement that the person be "customarily engaged in an independently established business" because not all of the musicians provided services to two or more different organizations within a 12-month period or routinely advertised, solicited, or marketed their businesses. Portland