Cases

Pick a topic of in interest and express it in a few simple words—for instance, the words “real estate fraud” or “false imprisonment” or “battery.” You can also add more specific words such as “store” or “stress” or “weapon.” Then add the name of a court with your words—for instance “Oregon Court of Appeals” Google these terms. Many published cases will appear.

(Independent contractor versus Employee Status Only. These are just examples of case citations. You may brief any case you want on these or any other topic such as employment law, general business law, etc.!)

Source: http://www.leg.state.or.us/ors/annos/670ano.htm

NOTES OF DECISIONS

       All eight elements must be satisfied before worker is considered independent contractor. Liberty Northwest Ins. Corp. v. Potts, 119 Or App 252, 850 P2d 1135 (1993); HDG Enterprises v. Natl. Council on Comp. Ins., 121 Or App 513, 856 P2d 1037 (1993)

       Specification that work meet industry standard, even where only one method exists to achieve industry standard, does not give direction and control over means and manner of providing labor or services. B. King Construction, Inc. v. Natl. Council on Comp. Ins., 120 Or App 420, 852 P2d 927 (1993)

       “Direction and control” refers to judicially created “right to control” test applied in conjunction with ORS 656.005, not actual control. S-W Floor Cover Shop v. National Council on Comp. Ins., 318 Or 614, 872 P2d 1 (1994)

       Person found not to be worker is not subject to workers’ compensation coverage, so determination of person’s status as independent contractor is unnecessary. S-W Floor Cover Shop v. National Council on Comp. Ins., 318 Or 614, 872 P2d 1 (1994); Blackledge Furniture Co., Inc. v. National Council on Comp. Ins., 318 Or 632, 872 P2d 10 (1994); Lake Oswego Hunt, Inc. v. National Council on Comp. Ins., 318 Or 636, 872 P2d 12 (1994)

       Meeting required number of criteria to qualify as independently established business fulfills requirement that representation of independent business status be made to public. Petersen v. Employment Dept., 135 Or App 344, 898 P2d 210 (1995)

       Where determination regarding independent contractor status has been made under one of listed chapters, subsequent action by other agency under different listed chapter must be consistent with initial determination unless agency in subsequent action provides reasoned explanation for inconsistency. Kaib’s Roving R.Ph. Agency v. Employment Department, 161 Or App 290, 984 P2d 886 (1999)

       Requirement that alleged employer prove by four or more listed factors that individual or business entity is engaged in independently established business applies only where alleged employer satisfies tax return criteria by establishing that individual or entity did not perform labor or services as independent contractor in previous year. Canvasser Services, Inc. v. Employment Dept., 163 Or App 270, 987 P2d 562 (1999), Sup Ct review denied

Assignment 2

“Partnership Troubles”

Facts

Three (3) persons decided to develop commercial property (e.g. plan, build and sell office space and retail outlets on the property) under an arrangement where one person would contribute the land (the “Real Property Person), the second person would provide planning and development advice (the “Knowledge Person”), and the third would list the houses for sale in her real estate agency (the “Sales Person”).

All three had been very best friends for years, and each felt that it would not be necessary to hire accountants and lawyers and others to assist in the venture or to put anything in writing. The three agreed to name their venture “Blue Sky Ventures” and shook hands.

The Real Property Person immediately transferred the land to “Blue Sky Ventures” using proper procedures (the transfer procedures used for the transfer are not at issue in your response).

The Knowledge Person had no money, but had considerable experience developing property. Similarly, the Sales Person had no money, but had considerable experience selling property.

The land was worth one million dollars (i.e. in its undeveloped state).

About a year passed, but no one did anything because each was easily distracted and became busy with other ventures.

Unfortunately, a severe economic downturn (i.e. an economic recession) occurred, making the project far less profitable. On top of this, the local government made it very difficult to build anything on the land due by establishing new regulations emphasizing growth control, environmental protection (the land included wetland areas that supported rare and endangered lizards), and aesthetics (the land was so strikingly beautiful that scholars and poets flocked to it each year for inspiration).

Research

This question can be answered based on basic partnership principles covered the text(s), the PowerPoint presentation, ORS Chapter 67.005 (definitions) and within ORS 67.040 – 67.340, which can be found at https://www.oregonlaws.org/ors/chapter/67 ).

Response

Please answer the following. Please support your responses with authority (statutes, regulations, the principles and practices described in the readings, and your own rationale).

Be sure to address the following:

1.. Is this a binding agreement (i.e. legally enforceable in court) even though it was not in writing? If it is, what is the probable status of the relationship between the Capital Person and the two others? Why?

2. Who owns the property? What is each person’s ownership interest?

3. Who has control over the venture?

4. What should have been done differently--and why—to provide a more logical, fair, and

business–minded expected result?

A typical, concisely-written response should take two to four double-spaced, typewritten pages.