Broadway Cab LLC v. Employment Department

Unemployment taxes are properly assessed for employee taxicab drivers who receive remuneration for services provided to benefit their employer, where the taxicab drivers do not qualify as independent contractors under ORS 670.600(3).

The Oregon Employment Department (Department) notified Broadway Cab LLC (Broadway) of its assessed unemployment taxes for 2008-2009; Broadway contested. The administrative law judge (ALJ) determined that the taxicab drivers working under Broadway performed services for Broadway for remuneration and that Broadway had failed to demonstrate the drivers qualified for the independent contractor exemption. The ALJ held that this constituted taxable employment, but that the Department’s assessment was incorrect; the ALJ declined to calculate the correct amount of taxes owed for 2008-2009. Both the Department and Broadway sought judicial review of the ALJ’s order. On review, the Court found that the taxicab drivers provided services that allowed Broadway to fulfill its contractual obligations and maintain its market share in the Portland area. The Court held that the ALJ correctly held the taxicab drivers performed services for Broadway for remuneration even though payment came directly from customers. The Court held that the ALJ did not err in deciding Broadway failed to meet at least three of the five independent contractor criteria under ORS 670.600(3) because Broadway failed to meet its burden to establish that its drivers maintained a separate work location, routinely engaged in advertising and marketing, or had the authority to hire and fire others. Regarding Broadway’s cross-petition, the Court held that the ALJ erred in holding both that the record contained insubstantial evidence to make an accurate assessment and that the department’s assessment was incorrect; the ALJ should have either affirmed, modified or set aside the assessment. Affirmed on petition. Reversed and remanded for reconsideration of the amount of the assessment on cross-petition.