Chapter 657

 

      Chapter 657

 

NOTES OF DECISIONS

 

      An individual who performs services for remuneration is an employee, and person or organization for whom services are performed is an employer under terms of Employment Division Law even if remuneration is paid indirectly rather than directly unless employer shows that some statutory exclusion applies. Lectro Lift, Inc. v. Morgan, 14 Or App 316, 513 P2d 526 (1973)

 

      Mere act of incorporating as professional corporation does not, by itself, create employer-employee relationship for purposes of this chapter. Peterson v. Employment Division, 82 Or App 371, 728 P2d 95 (1986)

 

      Determination of whether claimant is qualified for benefits is made by reference to ORS 657.150 and 657.155, which require determination of amount of work that claimant performed in “employment” as defined in ORS chapter 657, which, in turn means that exclusions from “employment” set out in ORS 657.040 through 657.094 must be considered. May Trucking Co. v. Employment Dept., 251 Or App 555, 284 P3d 553 (2012)

 

ATTY. GEN. OPINIONS: Determining employer of musicians’ group, (1972) Vol 35, p 1306

 

      657.015

 

NOTES OF DECISIONS

 

      Although members of cooperative performed services in return for patronage dividends, which are share of profit in proportion to amount of work performed, and although in absence of profits they might not receive any compensation, members received “remuneration” within meaning of this section, making cooperative liable for unemployment insurance contributions. Emp. Div. v. Surata Soy Foods, 63 Or App 221, 662 P2d 810 (1983)

 

      Payments to proctor parents caring for difficult foster children in their homes were subject to payroll taxes for unemployment insurance. Youth Care Services v. Employment Division, 91 Or App 145, 754 P2d 25 (1988)

 

      Where petitioner distributes appliances to retail stores but has no control over how sales are made and at what prices or whether spiff program will be implemented at particular retail establishment, service to petitioner is too indirect to constitute “employment” and petitioner is not subject to payroll taxes for unemployment insurance. North Pacific Supply Co., Inc. v. Emp. Div., 100 Or App 553, 787 P2d 495 (1990), Sup Ct review denied

 

      657.020

 

NOTES OF DECISIONS

 

      List of entities included within definition of “organization” does not limit scope of definition to similar types of entity. Confederated Tribes of Siletz Indians of Oregon v. Employment Dept., 165 Or App 65, 995 P2d 580 (2000)

 

      Indian tribe is organization capable of being employing unit. Confederated Tribes of Siletz Indians of Oregon v. Employment Dept., 165 Or App 65, 995 P2d 580 (2000)

 

      “Employing unit” generally applies to any unit that provides remuneration for provision of services. Gross v. Employment Department, 237 Or App 671, 240 P3d 1130 (2010)

 

      657.025

 

NOTES OF DECISIONS

 

      Clinic was “employer” of petitioner even though SAIF paid petitioner’s wages as part of vocational rehabilitation. White v. Employment Division, 72 Or App 163, 694 P2d 1009 (1985), as modified by 77 Or App 35, 711 P2d 196 (1985)

 

      “Employer” generally applies to any employing unit that provides remuneration for provision of services. Gross v. Employment Department, 237 Or App 671, 240 P3d 1130 (2010)

 

ATTY. GEN. OPINIONS: Determining employer of musicians’ group, (1972) Vol 35, p 1306

 

      657.030

 

NOTES OF DECISIONS

 

      Words “service” and “remuneration,” as used in this section, are broad descriptive terms evidencing legislative intent to give law broad and liberal coverage. Petrol Stops NW v. Morgan, 10 Or App 620, 501 P2d 341 (1972); Gross v. Employment Department, 237 Or App 671, 240 P3d 1130 (2010)

 

      Owner-operator cab driver is not engaged in employment relationship with cab company where company does not remunerate driver but instead, driver pays fee to cab company for certain services. DeRoos v. Employment Division, 65 Or App 578, 672 P2d 63 (1983)

 

      Where petitioner performed services for remuneration, even though SAIF paid his wages as part of vocational rehabilitation, services were “employment” under this section. White v. Employment Division, 72 Or App 163, 694 P2d 1009 (1985), as modified by 77 Or App 35, 711 P2d 196 (1985)

 

      Where business signed lease with hair stylists allowing them to set their own hours, work elsewhere, schedule their own clients and pay $300 per month for rent, utilities, telephone and some maintenance unless they earned less than $1000, in which case they would pay 30% of earnings, business was not employer of stylists. Employment Division v. Shear Creations, 94 Or App 107, 764 P2d 941 (1988)

 

      Where Federal Unemployment Tax Act does not allow exemption for religious organizations other than churches and church-related organizations, state must tax exempted churches and related organizations to avoid unconstitutional discrimination. Employment Div. v. Rogue Valley Youth for Christ, 307 Or 490, 770 P2d 588 (1989)

 

      Where petitioner distributes appliances to retail stores but has no control over how sales are made and at what prices or whether spiff program will be implemented at particular retail establishment, service to petitioner is too indirect to constitute “employment” and petitioner is not subject to payroll taxes for unemployment insurance. North Pacific Supply Co., Inc. v. Emp. Div., 100 Or App 553, 787 P2d 495 (1990), Sup Ct review denied

 

      Employment Division rule classifying claimant’s receipt of back pay awards for weeks claimant was out of work as employment conflicts with this section and is invalid. Employment Div. v. Ring, 104 Or App 713, 803 P2d 766 (1990), Sup Ct review denied

 

      Corporation and person acting solely as corporate director are not in employer-employee relationship. Necanicum Investment Co. v. Employment Department, 345 Or 138, 190 P3d 368 (2008)

 

      Taxicab company contracted with city and other entities to provide transportation services, and maintained fleet of taxicab drivers that provided “services” to company and on behalf of company to enable company to fulfill contractual obligations. Even though drivers were generally paid directly by customers rather than by company, drivers provided services for “remuneration,” as used in this section, because services were performed for benefit of company. Broadway Cab LLC v. Employment Department, 265 Or App 254, 336 P3d 12 (2014), aff’d 358 Or 431, 364 P3d 338 (2015)

 

ATTY. GEN. OPINIONS: Determining employer of musicians’ group, (1972) Vol 35, p 1306; discrimination in medical benefits provided by employers and labor unions to employees and spouses with respect to pregnancy, childbirth, etc., (1977) Vol 38, p 1239

 

      657.035

 

NOTES OF DECISIONS

 

      Location where driver parks truck for extended down time between shifts and where driver receives work instruction from for-hire carrier’s communication system is “base of operations” as used in this section. May Trucking Company v. Employment Department, 279 Or App 530, 379 P3d 602 (2016)

 

      657.040

 

NOTES OF DECISIONS

 

      Mere economic control which exists where a person has the right to fire another at will is not sufficient to create an employer-employee relationship. Michelet v. Morgan, 11 Or App 79, 501 P2d 984 (1972)

 

      If facts are not disputed question of whether one is employee or contractor of another is question of law. Michelet v. Morgan, 11 Or App 79, 501 P2d 984 (1972)

 

      Double requirement, that worker’s occupation be “independently established” and that worker be “customarily” engaged in it, clearly calls for enterprise created and existing separate and apart from relationship with particular employer, an enterprise that will survive the termination of relationship. Barger v. Morgan, 13 Or App 111, 507 P2d 821 (1973), Sup Ct review denied

 

      Word “employment” does not incorporate the common law test for determining master-servant relationship, but rather includes persons who may be independent contractors at common law but who do not fulfill the strict exemption requirements set out. Klamath Dental Office, Inc., v. Morgan, 19 Or App 521, 528 P2d 91 (1974)

 

      Requirements that person be free from direction and control and that person customarily engage in independent business are conjunctive rather than disjunctive; thus, if petitioner fails to sustain its burden regarding either factor, exemption requirements are not met. Timberland Sales, Inc. v. Employment Div., 20 Or App 192, 530 P2d 880 (1975), Sup Ct review denied

 

      Where business works with multiple employers over time, business may be independent notwithstanding that business serves single employer at any given time. Europorama, Inc. v. Employment Div., 22 Or App 431, 539 P2d 1157 (1975)

 

      Business is not “independently established” or “customarily” engaged in if continued existence of business is dependent upon continuing relationship with single employer. Europorama, Inc. v. Employment Div., 22 Or App 431, 539 P2d 1157 (1975); Revlon Services, Inc. v. Employment Division, 30 Or App 729, 567 P2d 1072 (1977); Sharp v. Employment Div., 47 Or App 733, 615 P2d 374 (1980)

 

      In determining whether person has independently established business, person’s investment in business need only be commensurate with quantity and quality of investment necessary for that type of business and need not exceed value of equipment used. The Carpet Mill v. Employment Div., 56 Or App 552, 642 P2d 354 (1982); Pam’s Carpet Service v. Employment Div., 61 Or App 96, 656 P2d 340 (1982)

 

      It was error for referee to consider fact that individuals were paid amounts in excess of the minimum unemployment eligibility amount from one employer as sole indicator of economic dependency. The Carpet Mill v. Employment Div., 56 Or App 552, 642 P2d 354 (1982)

 

      Carpet installers’ testimony that they regularly turned down offers to perform services for firms other than petitioner and that when they ceased performing services for petitioner they were immediately employed with other firms was relevant to whether they were economically dependent on petitioner. Pam’s Carpet Service v. Employment Div., 61 Or App 96, 656 P2d 340 (1982)

 

      Whether individual is engaged in independently established business is determined by consideration of 12 factors. Combined Transport, Inc. v. Employment Division, 81 Or App 31, 724 P2d 832 (1986), Sup Ct review denied, as modified by 82 Or App 127, 727 P2d 979 (1986)

 

      It was error to presume that service performed for remuneration and not falling under exemption was employment without first determining whether service was performed for employer as defined under ORS 657.025. Employment Division v. Peddicord, 125 Or App 113, 865 P2d 384 (1993)

 

      Exemption is available either by meeting independent contractor definition of ORS 670.600 or by meeting both requirement of freedom from direction and control and requirement of engagement in independent business. Petersen v. Employment Dept., 135 Or App 344, 898 P2d 210 (1995)

 

LAW REVIEW CITATIONS: 31 WLR 647 (1995)

 

      657.044

 

NOTES OF DECISIONS

 

      Individual who is sole owner and director of corporation does not qualify as “family.” Employment Department v. Stock Secrets, Inc., 210 Or App 426, 150 P3d 1090 (2007)

 

      657.045

 

NOTES OF DECISIONS

 

      Farm cooperative’s employees were not agricultural laborers, when they conducted occasional testing work on members’ farms. Southwest Ore. Dairy Herd Improvement Assn. v. Morgan, 17 Or App 300, 521 P2d 1308 (1974)

 

      As used in paragraph (2)(c), “exclusively” means “primarily.” Klamath Irr. Dist. v. Employment Div., 21 Or App 61, 534 P2d 190 (1975), Sup Ct review denied

 

      Where petitioner maintained five or six accounts for commercially used water, the accounts constituted a profit operation and petitioner did not fall within the exemption under paragraph (2)(c). Rogue River Valley Irr. Dist. v. Employment Div., 21 Or App 79, 534 P2d 200 (1975)

 

      Work in a nursery for the raising of commercial timber seedlings did not fall within the definition of agricultural labor. Appleman v. Employment Div., 21 Or App 186, 534 P2d 218 (1975), Sup Ct review denied

 

      The unemployment tax exemption for agricultural labor does not apply to an employee of a crop dusting concern who is responsible for mixing chemicals and cleaning airplanes at an airport. Lenhardt Airport v. Employment Div., 24 Or App 145, 544 P2d 622 (1976)

 

      Employees who engage in both exempt activities and nonexempt activities are not agricultural labor. Cherry Growers v. Employment Div., 25 Or App 645, 550 P2d 1250 (1976)

 

      Petitioner, corporation whose purpose is to operate winery, failed to prove that its winemaking activities are exempt agricultural labor under this section. Hidden Springs Winery v. Emp. Div., 85 Or App 340, 736 P2d 217 (1987)

 

      Salmon hatchery is not “farm” and fish are not “agricultural commodities” within meaning of this section. Rash v. Employment Division, 85 Or App 570, 737 P2d 966 (1987)

 

      Agricultural goods that are used or valued and are raised on farm may qualify as commodities regardless of whether goods are bought and sold as articles of commerce. Convention Foliage Service, Inc. v. Employment Department, 211 Or App 104, 153 P3d 163 (2007)

 

      657.047

 

NOTES OF DECISIONS

 

      As used in this section, “lease” requires transfer to for-hire carrier of legal possession and use of vehicle, but retention by lessor of physical possession, control and use for purposes of vehicle operation and maintenance. Delta Logistics, Inc. v. Employment Department Tax Section, 279 Or App 498, 379 P3d 783 (2016), aff’d 361 Or 821, 401 P3d 779 (2017)

 

      Where for-hire carrier leased vehicles from vehicle owner-operators, who drove vehicles for purposes of providing services offered on behalf of for-hire carrier, for-hire carrier was not employer of owner-operator. Delta Logistics, Inc. v. Employment Department Tax Section, 279 Or App 498, 379 P3d 783 (2016), aff’d 361 Or 821, 401 P3d 779 (2017)

 

      Where for-hire carrier enters into agreements with contract drivers, who own or lease their vehicles, to provide transportation services for carrier and carrier financially compensates drivers and provides equipment, licensing, insurance and administrative support, drivers’ services are not “employment” and are therefore exempt under this section. Market Transport, Ltd. v. Employment Department, 279 Or App 515, 379 P3d 608 (2016)

 

      Where contract driver of for-hire carrier does not have transferable interest in vehicle, driver is not exempt under this section. May Trucking Company v. Employment Department, 279 Or App 530, 379 P3d 602 (2016)

 

      Where contract drivers of for-hire carrier have financial responsibility for vehicle and are permitted under agreement with carrier to select third party to perform maintenance on vehicle, contract drivers meet requirement to “personally” maintain vehicle under this section. May Trucking Company v. Employment Department, 279 Or App 530, 379 P3d 602 (2016)

 

      Exemption from unemployment benefit laws applies to truck owners who hire employees to help operate, furnish and maintain trucks. Delta Logistics, Inc. v. Employment Dept. Tax Section, 361 Or 821, 401 P3d 779 (2017)

 

      657.065

 

NOTES OF DECISIONS

 

      Prohibition of coverage for “elected public officials” applies only to public officials who are state or local government employees. Confederated Tribes of Siletz Indians of Oregon v. Employment Dept., 165 Or App 65, 995 P2d 580 (2000)

 

      657.072

 

NOTES OF DECISIONS

 

      College which was in fact operated and supervised by Church was not an employer and was exempt from payment of unemployment taxes, notwithstanding that College was run by Board of Trustees and Church had no legal supervision or control over College. Employment Division v. N. W. Christian College, 31 Or App 201, 570 P2d 100 (1977), Sup Ct review denied

 

      Determination that Vic Coburn Evangelistic Association was not “church” within meaning of this section was supported by substantial evidence where employer-ministry was not organized as congregation and no particular religious group was involved in its services. Vic Coburn Evangel. Assoc. v. Emp. Div., 35 Or App 655, 582 P2d 51 (1978), Sup Ct review denied

 

      Parochial schools operated, supervised, controlled and principally supported by a church were exempt from unemployment compensation taxes under this section. Emp. Div. v. Archdiocese of Portland, 42 Or App 421, 600 P2d 926 (1979)

 

      Where employee’s services consisted of picking up articles donated to Union Gospel Mission and referee found that Gospel Mission was association of churches, employment was exempt from unemployment insurance coverage and conflicting rule was invalid. Miller v. Employment Div., 290 Or 285, 620 P2d 1377 (1980)

 

      Under this section, definition of covered employment is a complete expression of legislative policy and gives no latitude to create an exception to coverage of statute by agency rule. Miller v. Employment Division, 290 Or 285, 620 P2d 1377 (1980)

 

      Limiting exemption from subject employment to “churches” instead of all religious organizations violates constitutional guarantee of religious freedom. Salem College and Academy, Inc. v. Employment Division, 298 Or 471, 695 P2d 25 (1985); Employment Division v. Rogue Valley Youth for Christ, 307 Or 490, 770 P2d 588 (1989)

 

      Minister of church exemption from definition of “employment” also applies for minister of nonchurch religious organization. Newport Church of the Nazarene v. Hensley, 335 Or 1, 56 P3d 386 (2002)

 

LAW REVIEW CITATIONS: 75 OLR 1253 (1996)

 

      657.080

 

NOTES OF DECISIONS

 

      “Shopping news” refers to publication similar to newspaper and containing advertising for one or more merchants or other listings of items for sale. Greater Portland Newcomers Serv. v. Morgan, 14 Or App 333, 513 P2d 493 (1973)

 

      Where person delivering shopping news conducted other consumer research functions at time of delivery, person was not exempt as deliverer of shopping news. Greater Portland Newcomers Serv. v. Morgan, 14 Or App 333, 513 P2d 493 (1973)

 

      657.087

 

NOTES OF DECISIONS

 

      Where petitioner knife sales company pays salespeople incentive payments for in-home product demonstrations, incentive payment is not exempt from “employment” in this section as “commissions” because commission is payment keyed to transaction with customer in which customer makes order, and incentive payment is made based on number of in-home demonstrations regardless of whether demonstrations result in customer orders. Vector Marketing Corp. v. Employment Department, 275 Or App 999, 365 P3d 686 (2015), Sup Ct review denied

 

      This section creates exemption from employment but exemption is limited to remuneration based on commissions and profits from “sales of consumer goods in the home.” Because employer failed to establish to what extent employer’s independent business owners conducted sales in locations other than “in the home,” employer could not benefit from exemption. ACN Opportunity, LLC v. Employment Department, 278 Or App 697, 377 P3d 638 (2016)

 

      657.090

 

NOTES OF DECISIONS

 

      The legislature inserted the word “wholesale” on the representation by the Employment Div. that by doing so it would exempt bulk distributors but not retail service station operators. Sun Oil Co. v. Employment Div., 20 Or App 57, 530 P2d 538 (1975)

 

      657.100

 

NOTES OF DECISIONS

 

      Since claimant performed services for the corporate employer during the period in question and was compensated for them by the corporation he was not unemployed. Anttonen v. Morgan, 9 Or App 169, 496 P2d 733 (1972)

 

      The test of whether a teacher was unemployed within the meaning of the Oregon unemployment compensation law was not when his teaching and research duties ended but rather the terms of his employment contract with reference to when he would cease receiving remuneration from his former employer for services performed. Gollender v. Morgan, 17 Or App 104, 520 P2d 453 (1974)

 

      Sole owner-employees of income tax preparation corporation were “unemployed” under this section where they were not paid for services, such as checking and answering mail, performed during periods in question. Sullivan v. Employment Division, 42 Or App 581, 600 P2d 965 (1979)

 

      Where reserved vacation pay was earned and payable with respect to earlier weeks of service, and not with respect to weeks for which benefits were claimed, vacation pay was not remuneration payable for services performed during claim weeks. Teledyne Wah Chang Albany v. Employment Division, 77 Or App 148, 712 P2d 154 (1985), aff’d 302 Or 186, 728 P2d 26 (1986)

 

      Employment Appeals Board incorrectly determined that claimant was not unemployed for purposes of this section when purported “employing unit” was corporation that was nothing more than shell, without place of business, without officers or other employees, without assets, and when claimant performed activities without salary or other expectation of direct reimbursement for his efforts on behalf of corporation. Waltuck v. Employment Div., 105 Or App 542, 805 P2d 739 (1991)

 

      657.105

 

NOTES OF DECISIONS

 

      Although wages paid to petitioner for work at clinic were “disability payments in a work experience program,” no statute provided that they should not be counted for unemployment benefit purposes, and they were “remuneration for employment,” under this section. White v. Employment Division, 72 Or App 163, 694 P2d 1009 (1985), as modified by 77 Or App 35, 711 P2d 196 (1985)

 

      Administrative rule that tips were not wages was not inconsistent with statutory definition of wages. Callahan v. Employment Div., 80 Or App 401, 722 P2d 1275 (1986), Sup Ct review denied

 

      Division rule providing that back pay awards constitute wages conflicts with this section and is invalid. Employment Div. v. Ring, 104 Or App 713, 803 P2d 766 (1990), Sup Ct review denied

 

      Where petitioner showed up for work and was paid despite being sent home because of inclement weather, petitioner received “wages” under this section. Barnes v. Employment Division, 117 Or App 233, 843 P2d 987 (1992)

 

      Salary reduction amount used for employer payment of employee benefit pursuant to irrevocable election by employee are not wages for purpose of calculating unemployment benefit. Lee v. Employment Department, 221 Or App 449, 190 P3d 453 (2008), Sup Ct review denied

 

      Fees paid to corporate director for performance of duties as director are not wages. Necanicum Investment Co. v. Employment Department, 345 Or 138, 190 P3d 368 (2008)

 

      657.115

 

NOTES OF DECISIONS

 

      Salary reduction amount used for employer payment of employee benefit pursuant to irrevocable election by employee are not wages for purpose of calculating unemployment benefit. Lee v. Employment Department, 221 Or App 449, 190 P3d 453 (2008), Sup Ct review denied

 

      657.150

 

NOTES OF DECISIONS

 

      Where some wages were earned in the base year but not paid until the next year because of illness and then death of petitioner’s employer, those wages could not be considered in computing benefits for the base year. Gordon v. Morgan, 20 Or App 69, 530 P2d 522 (1975)

 

      Where advance payment is compensation for specific vacation period rather than accrued vacation benefit generally, payment is chargeable against unemployment benefits for vacation period rather than first week of unemployment period. Hawkins v. Employment Div., 26 Or App 445, 552 P2d 1325 (1976)

 

      Mere receipt of wages is not equivalent to performance of “weeks of work” within the meaning of this section. Tracy v. Employment Div., 29 Or App 851, 565 P2d 403 (1977)

 

      Evidence was sufficient to establish that claimant had no individual entitlement to work during company’s mandatory shutdown and vacation period and was thus not eligible for benefits under this section. Wilson v. Employment Division, 34 Or App 289, 578 P2d 486 (1978)

 

      Claimants were ineligible to receive unemployment compensation benefits during general plant shutdown because they had elected to take vacation time during that period and received payments therefor from employer. Stanley v. Employment Division, 43 Or App 905, 607 P2d 1195 (1979), Sup Ct review denied

 

      Where claimants received lump sum payment equivalent to holiday pay as part of layoff settlement, such payment was properly considered earnings in weeks in which holidays fell and reduction of benefits in those weeks was proper. Adams v. Emp. Div., 56 Or App 784, 643 P2d 400 (1982), Sup Ct review denied

 

      In determining qualification for unemployment benefits, services of petitioner for remuneration were “employment” under ORS 657.030, even though SAIF paid his wages as part of vocational rehabilitation. White v. Employment Division, 72 Or App 163, 694 P2d 1009 (1985), as modified by 77 Or App 35, 711 P2d 196 (1985)

 

      Where employee handbook made no reference to designated vacation periods and plant’s vacation period had varied from year to year, finding that employer had designated vacation period by employer custom, practice or policy was not supported by substantial evidence. Bergun v. Employment Division, 81 Or App 580, 726 P2d 1202 (1986)

 

      Where employer has shut down during Christmas holiday season for at least 10 years and identifies closure as its official policy in employee handbook, yearly closure is “designated vacation period” under this section and holiday pay paid during this period is considered earnings in determining claimant’s unemployment compensation benefits. Tektronix, Inc. v. Employment Div., 97 Or App 666, 777 P2d 1005 (1989)

 

      Delay in payment of unemployment benefits does not entitle claimant to receive interest for period that benefits were unpaid. Newport Church of the Nazarene v. Hensley, 335 Or 1, 56 P3d 386 (2002)

 

      657.155

 

NOTES OF DECISIONS

 

      Claimant was ineligible for unemployment benefits when she refused night shift work because of need to care for her sick husband. York v. Morgan, 16 Or App 76, 517 P2d 301 (1973)

 

      Where a claimant demonstrates that school is secondary to suitable employment he should not be denied unemployment compensation. Minniti v. Employment Div., 18 Or App 44, 523 P2d 1060 (1974)

 

      The amount set by claimant as a minimum acceptable salary in her customary occupation indicated she was not actively seeking and unable to obtain suitable work. Fojardo v. Employment Div., 20 Or App 390, 532 P2d 29 (1975)

 

      An employee on maternity leave who seeks to return to work under contract is “actively seeking work” within this section. Polk County Intermediate Educ. Dist. v. Employment Div., 24 Or App 169, 544 P2d 1073 (1976)

 

      Claimant did not lose unemployment benefits when, following established practice of Employment Division, claimants in particular class of which he was member did not have to check with placement office each week. Anderson v. Employment Div., 24 Or App 503, 546 P2d 779 (1976)

 

      The Unemployment Appeals Board erred in denying claimant benefits on ground that he refused suitable work where work refused was not in the claimant’s usual trade and OAR 471-30-070 allows claimant six weeks to find work in usual trade. Gredvig v. Employment Div., 24 Or App 511, 546 P2d 791 (1976)

 

      The claimant’s unavailability for work due to illness on one day does not preclude him from unemployment benefits for that week. Employment Div. v. Park, 27 Or App 395, 556 P2d 149 (1976)

 

      Where employee subject to layoff was given definite date of return to work in one month, and employee visited relatives in Wisconsin and filed courtesy report at unemployment office there, employee was “available for work” within meaning of this section and was not required to further conduct act of search for work. Scotch v. Employment Division, 31 Or App 941, 573 P2d 723 (1977)

 

      There is no requirement that testimony of credible claimant regarding willingness to place work ahead of schooling must be supported by additional evidence. Petro v. Employment Division, 32 Or App 17, 573 P2d 1250 (1978)

 

      Referee must make specific findings regarding credibility of claimant. Petro v. Employment Division, 32 Or App 17, 573 P2d 1250 (1978)

 

      No presumption of unavailability, under this section, arises out of school attendance. Petro v. Employment Division, 32 Or App 17, 573 P2d 1250 (1978); Dach v. Employment Division, 32 Or App 433, 574 P2d 684 (1978)

 

      Where pregnant claimant was given leave of absence by employer, following information supplied to employer by claimant’s doctor that she was able to do sedentary or nonstrenuous work, she was available for sedentary or nonstrenuous work and entitled to compensation under this section. Kibble v. Employment Division, 36 Or App 243, 584 P2d 340 (1978)

 

      Leaving one job to return to school as well as take more attractive employment which terminated unexpectedly in one week was not good cause for terminating first job where there was nothing about first job which would cause reasonably prudent person to quit, and claimant was not entitled to receive compensation chargeable to first employer. Waide v. Employment Div., 38 Or App 121, 589 P2d 1138 (1979)

 

      Where claimant performed uncompensated services for a corporation of which he was an officer and shareholder and through which he sought employment, this did not mean he was not “available” or “looking for work” under this section. Taylor v. Employment Div., 286 Or 711, 597 P2d 780 (1979)

 

      Where petitioner lost job when school district funds were cut, continued to seek work of same type, but declined to interview for employment with school located some distance from petitioner’s house, there was not substantial evidence to support determination that school was within petitioner’s labor market. McCann v. Emp. Div., 53 Or App 102, 630 P2d 1335 (1981)

 

      Receipt of workers’ compensation benefits does not give rise to presumption that claimant is unable to work for purposes of receiving unemployment benefits. Edwards v. Employment Division, 63 Or App 521, 664 P2d 1151 (1983)

 

      Claimant-nurse was not “available” for work where she refused, in order to care for son, to work swing shift. Doctor v. Employment Division, 76 Or App 650, 711 P2d 159 (1985), Sup Ct review denied

 

      Administrative rule defining “available for work” as used in this section does not contain requirement that immigrants have INS work authorization before they may be considered to be available for work. Carillo v. Employment Division, 88 Or App 204, 744 P2d 1304 (1987)

 

      657.167

 

NOTES OF DECISIONS

 

      Where claimant was employed by two academic institutions and after summer recess had assurance of returning to only one, compensation was awardable for the job to which he would not return. Mallon v. Employment Div., 41 Or App 479, 599 P2d 1164 (1979)

 

      Teacher who substitute taught for school district in academic year preceding summer vacation, and who had reasonable assurances that he could substitute teach again in academic year following summer vacation, was not entitled to unemployment compensation benefits for summer vacation months. Johnson v. Employment Division, 59 Or App 626, 651 P2d 1365 (1982)

 

      Employment Appeals Board erred in interpreting “between two successive years” to include unexpected layoff period that preceded principals’ regularly scheduled period of unemployment. Hayes v. Employment Div., 65 Or App 506, 672 P2d 352 (1983)

 

      As used in this section “academic year” means traditional fall through spring sessions of an educational institution. Friedlander v. Employment Division, 66 Or App 546, 676 P2d 314 (1984)

 

      Teacher whose employment at educational institution during traditional academic year preceding summer vacation period was dependent upon minimum class enrollment, and who has reasonable assurance of teaching on same basis in following academic year, is not entitled to unemployment benefits for summer months. Friedlander v. Employment Division, 66 Or App 546, 676 P2d 314 (1984)

 

      There was no assurance of reemployment where claimant was told that if enough students enrolled, needed tutoring and requested him, decision whether to rehire him would be made. Redmond v. Employment Div., 66 Or App 878, 675 P2d 1126 (1984)

 

      Where claimant employed as full-time teacher during first academic year has quantity of service reduced to part-time for second academic year, claimant is entitled to unemployment compensation for summer months; legislative intent of this section is to treat academic employee in same manner as other covered employee. Kelly v. Employment Division, 74 Or App 69, 701 P2d 448 (1985), Sup Ct review denied

 

      Teacher who works as substitute during year before summer recess and has reasonable assurance of working as substitute during year following recess is not qualified for unemployment benefits. Slominski v. Employment Division, 77 Or App 142, 711 P2d 215 (1985)

 

      This section, which limits payment of unemployment benefits to instructional personnel during regularly scheduled vacations, disqualifies from receiving benefits school employee who performed instructional services before scheduled vacation and had reasonable assurance of performing such services after vacation. Dufka v. Employment Div., 87 Or App 254, 742 P2d 624 (1987), Sup Ct review denied

 

      Claimant had “reasonable assurance” of reemployment, as that term is used in this section, to disqualify him from receiving unemployment benefits where he received offer of employment in capacity similar to that of previous year but was still negotiating its terms. Employment Division v. Epstein, 90 Or App 584, 752 P2d 1295 (1988)

 

      Where Employment Appeals Board’s order does not explain how claimant’s not having had previous relationship with school districts before spring affects whether she had or did not have an assurance of re-employment, order fails to articulate rational connection between facts it found and legal conclusions. Mt. Hood Community College v. Employment Div., 101 Or App 314, 790 P2d 1164 (1990)

 

      Claimant who had long history of teaching successive terms without written notification of employer’s intention to reemploy her and whose supervisor told her she could be reasonably assured of temporary work, had reasonable assurance of reemployment and was thus disqualified from receiving unemployment compensation. Armstrong v. Employment Div., 113 Or App 257, 832 P2d 1233 (1992)

 

      Where claimant is employed prior to scheduled break, difference in nature of pre-break employment and former employment forming basis of claim is irrelevant to determining disqualification. Salem-Keizer School Dist. #24J v. Employment Dept., 137 Or App 320, 904 P2d 1082 (1995)

 

      Relevant period for determining disqualification during summer recess is academic year or term preceding summer recess, not week immediately prior to summer recess. Employment Dept. v. Bires, 147 Or App 336, 935 P2d 1214 (1997)

 

      657.170

 

NOTES OF DECISIONS

 

      Time limitation on filing for base year extension does not create arbitrary class in violation of Oregon Constitution Article I, Section 20. Thompson v. Employment Division, 124 Or App 161, 861 P2d 371 (1993)

 

      “Incapable of work” means inability to engage in any gainful occupation due solely to physical or mental defect. DuBois v. Employment Dept., 189 Or App 560, 77 P3d 641 (2003), Sup Ct review denied

 

      657.176

 

Procedure

      Appeals

      Burden of proof

      Notice

 

Separation from employment

      Absence

      Arguments, threats and fights

      Closures

      Compensation

      Conduct of others

      Discrimination

      Disobedience

      Drugs

      Early separation

      Evidence

      Good cause

      Hours of work

      Injury

      Lack of employment

      Misconduct

      Noncompetition agreements

      Off-duty conduct

      Reemployment and refusing employment

      Retirement

      Strikes

      Suitable work

      Travel

      Voluntary separation

 

NOTES OF DECISIONS

 

Procedure

 

      Appeals

 

      Denial of unemployment benefits based on finding that library employee voluntarily left work without good cause was improper where issue was raised for first time on appeal. Kuraspediani v. Emp. Div., 38 Or App 409, 590 P2d 294 (1979)

 

      Employment Appeals Board review of determination is de novoand claimant/petitioner had burden of proof. Turnquist v. Employment Division, 72 Or App 101, 694 P2d 1021 (1985)

 

      Evidence that claimant was intoxicated three hours into work shift and prior agreement with employer that positive result on random alcohol test could result in termination was sufficient to show that claimant was working impaired and that conduct was wilful and Employment Appeals Board decision to grant unemployment insurance benefits on ground that claimant had not been “discharged for misconduct connected with work” not rationally related to findings of fact. PGE v. Employment Division, 95 Or App 647, 770 P2d 940 (1989)

 

      Where claimant’s ability to work was directly at issue, Employment Appeals Board should have made finding concerning medical report of treating physician stating claimant able to work at time she left her job. Douglas County v. Employment Div., 99 Or App 625, 783 P2d 1019 (1989)

 

      In view of finding by Employment Appeals Board found that claimant left her work station without telling anyone and changed into her street clothes, conclusion that claimant did not voluntarily quit work was not adequately explained. Waddles Restaurants, Inc. v. Employment Div., 99 Or App 709, 784 P2d 115 (1989)

 

      Where Employment Appeals Board concluded claimant was discharged for isolated instance of poor judgment but found claimant had been warned previously about her disposition, conclusion does not bear rational relationship to findings of fact. Waddles Restaurants, Inc. v. Employment Div., 99 Or App 709, 784 P2d 115 (1989)

 

      Where Employment Appeals Board reached same result as referee but on different grounds and its rejection of credibility findings was material to its decision, board must explain its credibility finding by describing how it disagrees with referee. Burns Brothers, Inc. v. Employment Div., 99 Or App 714, 784 P2d 117 (1989)

 

      Where Employment Appeals Board failed to make findings of fact as to which act of misconduct was reason for claimant’s termination, conclusion that claimant was discharged for isolated instance of poor judgment is not rationally connected to factual findings. Jackson County v. Employment Div., 99 Or App 719, 784 P2d 119 (1989)

 

      Finding that employer would not allow claimant to continue to work is not supported by substantial evidence because fact that claimant agreed to termination date undermines evidence. J.R. Simplot Co. v. Employment Div., 102 Or App 523, 795 P2d 579 (1990)

 

      Authorized representative’s interpretation of Employment Department rule is accorded same deference on review as rule interpretation by department. Johnson v. Employment Dept., 187 Or App 441, 67 P3d 984 (2003), Sup Ct review denied

 

      Burden of proof

 

      Claimant has the burden of going forth with evidence of good cause for leaving employment until he makes a prima facie case. Brother v. Morgan, 17 Or App 435, 522 P2d 1210 (1974); McCain v. Employment Div., 17 Or App 442, 522 P2d 1208 (1974)

 

      Employer has the burden of proving misconduct. Babcock v. Employment Div., 25 Or App 661, 550 P2d 1233 (1976)

 

      Notice

 

      Where Employment Appeals Board has received ex partecommunication, board failed to comply with ORS 183.462 requirement that opposing party be notified and have opportunity to rebut, and court remanded to EAB. Turnquist v. Employment Division, 72 Or App 101, 694 P2d 1021 (1985)

 

Separation from employment

 

      Absence

 

      A father’s absence for the purpose of caring for his sick children did not constitute misconduct. Scevers v. Employment Div., 26 Or App 659, 554 P2d 575 (1976)

 

      Where claimant waitress’s three week departure to attend ailing mother was “authorized” by restaurant hostess who had, during owner’s absence on other occasion, authorized extended leave for similar purpose, EAB’s determinations that claimant (1) left work without authorization and (2) was not adequately supported by evidence. Balduyck v. Employment Division, 72 Or App 242, 695 P2d 944 (1985)

 

      Arguments, threats and fights

 

      Discharge of employee for arguing with reprimand of fellow employee over union matters was for “misconduct connected with his work.” Weirich v. Emp. Div., 19 Or App 479, 528 P2d 105 (1974)

 

      Under the circumstances, fighting while on employer’s premises was not “misconduct” under paragraph (2)(a). Georgia-Pacific Corp. v. Employment Div., 21 Or App 135, 533 P2d 829 (1975)

 

      Claimant was discharged for misconduct connected with work, where on two separate occasions within period of less than 2 months claimant threatened fellow employees on employer’s premises during work hours in violation of written rule. Lundy v. Employment Division, 34 Or App 265, 578, P2d 476 (1978)

 

      Veneer manufacturing employee who improperly fed dryer, became incensed over reasonable request for foreman, and engaged in argument with foreman during which he insulted him, was discharged for misconduct connected with his work within meaning of this section. Columbia Plywood v. Employment Div., 36 Or App 469, 584 P2d 784 (1978)

 

      Where claimant became incensed over reasonable inquiry by supervisor, insulting, intimidating and later physically threatening supervisor, such action is not isolated instance of poor judgment, but deliberate disregard of employer’s interests. Weyerhaeuser Co. v. Employment Div., 103 Or App 143, 796 P2d 385 (1990)

 

      Claimant’s use of abusive language followed by repetitious conduct in face of warning to cease was not isolated instance of poor judgment and constituted misconduct connected with work. Halling v. Employment Div., 108 Or App 457, 816 P2d 1173 (1991), Sup Ct review denied

 

      Closures

 

      Where claimants could not go back to work during plant shutdown but could choose either to use their vacation time or take leave without pay for the shutdown period, claimants’ decision not to use vacation time did not constitute voluntarily leaving work. Teledyne Wah Chang Albany v. Employment Div., 302 Or 186, 728 P2d 26 (1986)

 

      Compensation

 

      Plaintiff had good cause to leave employment when employer refused to make proper tax deductions from plaintiff’s paychecks. Garrelts v. Employment Div., 21 Or App 437, 535 P2d 115 (1975)

 

      De minimis net compensation constitutes good cause for terminating employment. Grigsby v. Employment Div., 24 Or App 499, 546 P2d 788 (1976)

 

      The claimant’s minimal income and deteriorating financial situation constituted good cause for leaving work. Bloomfield v. Employment Div., 25 Or App 771, 550 P2d 1400 (1976)

 

      Where employer unilaterally attempted to change wage rate for motor home assembly worker’s employment, worker’s refusal of substantial reduction in pay did not constitute misconduct. Mathis v. Employment Div., 46 Or App 37, 610 P2d 838 (1980)

 

      For purposes of determining whether work is suitable for individual, ORS 657.190 requires consideration of certain factors, but statute provides that those factors are to be considered “among other factors,” and Employment Division had authority to determine by rule that worker who quits job because of wage reduction is not entitled to unemployment benefits if post-reduction wages are comparable to wages earned by majority of workers performing similar work in same locality. Employment Division v. Asher, 86 Or App 350, 739 P2d 69 (1987)

 

      Employee who voluntarily left employment after being paid with check that was not covered with sufficient funds demonstrated good cause for leaving employment, even though employer contacted bank and check was subsequently honored. Cavitt v. Employment Div., 105 Or App 81, 803 P2d 778 (1990)

 

      Conduct of others

 

      Generally, offensive character habits of fellow workers will not constitute good cause for leaving employment. McCain v. Employment Div., 17 Or App 442, 522 P2d 1208 (1974)

 

      An employer’s “sexist” attitude will not by itself constitute good cause for leaving employment. McCain v. Employment Div., 17 Or App 442, 522 P2d 1208 (1974)

 

      Student discipline problems did not constitute “good cause” for a grade school teacher to voluntarily terminate employment. Weidert v. Employment Div., 22 Or App 474, 539 P2d 1116 (1975)

 

      Good cause for terminating employment under this section does not include a personality conflict with one’s immediate supervisor. Connelly v. Employment Division, 34 Or App 79, 577 P2d 1362 (1978), Sup Ct review denied

 

      Claimant’s persistent effort to pursue discussion with assistant manager concerning another employ’s improper activities, for which claimant was discharged, constituted isolated instance of poor judgment, and was not discharged due to course of “misconduct” which would disqualify claimant from receiving benefits. Goodwin v. Employment Division, 35 Or App 299, 581 P2d 115 (1978)

 

      Where city employee left work voluntarily because of “sexist” behavior of male coworkers, case was remanded to Employment Division for development of criteria for “good cause” under this section. McPherson v. Employment Division, 285 Or 541, 591 P2d 1381 (1979)

 

      Where waitress-assistant manager left work because employer was unresponsive to her complaints about unsatisfactory food handling and unclean cooking and service facilities, there was substantial evidence for referee to conclude that claimant voluntarily left work without good cause within meaning of this section. Bierly v. Employment Div., 44 Or App 629, 606 P2d 691 (1980)

 

      Where mentally handicapped employee was subjected on job to ridicule and other upsetting comments and had sought assistance of counseling service in handling situation, to no avail, facts did not support conclusion that subsequent leaving of employment was without good cause. Londahl v. Employment Division, 72 Or App 366, 695 P2d 1388 (1985)

 

      Discrimination

 

      Discrimination may constitute “good cause” as used in this section for voluntarily terminating employment. Fajardo v. Morgan, 15 Or App 454, 516 P2d 495 (1973)

 

      Since the record did not show discrimination on account of sex by petitioner’s last employer, the finding that she voluntarily left work without good cause was correct. Case v. Employment Div., 20 Or App 66, 530 P2d 531 (1975)

 

      Disobedience

 

      Employee’s deliberate disregard of explicit instructions, which resulted in grave risk of property damage and personal damage to third parties, constituted misconduct. Wigant v. Employment Division, 30 Or App 207, 566 P2d 1202 (1977)

 

      Evidence was sufficient to show that welder who refused to work on particular machine, alleging inadequate ventilation and need for respirators, was discharged from employment for misconduct connected with work. Pintok v. Employment Division, 32 Or App 273, 573 P2d 773 (1978)

 

      Where claimant, who was assigned to sweep out mobile homes at end of manufacturer’s production line, received numerous warnings about quality of work and ignored employer’s instructions, claimant’s actions were statutory misconduct as matter of law. Marlette Homes v. Employment Division, 33 Or App 587 (1978)

 

      Welder’s refusal to comply with safety regulation by trimming beard to make respirator mask fit snugly constituted misconduct connected with work. Rascoe v. Employment Division, 34 Or App 339, 578 P2d 3 (1978)

 

      Evidence that employee was not required to perform unconscionable acts in course of employment was sufficient to support Employment Appeals Board’s finding that claimant voluntarily left work without “good cause.” O’Brien v. Employment Division, 35 Or App 773, 582 P2d 841 (1978)

 

      Drugs

 

      Finding that claimant left work out of a fear that drug addiction would be discovered supported the conclusion that claimant left work without good cause. Tolonen v. Employment Div., 25 Or App 575, 549 P2d 1294 (1976)

 

      Off-duty drug use that does not result in actual or likely on-job impairment is not “misconduct connected with work.” Glide Lumber Prod. Co. v. Emp. Div. (Smith), 86 Or App 669, 741 P2d 907 (1987)

 

      Claimant discharged after testing positive for cocaine and amphetamines in drug test required by employer was eligible for unemployment benefits because, absent evidence that claimant was under influence of drugs at work or performing unsatisfactorily because of drug use, misconduct resulting in discharge was not connected with claimant’s work. Silverton Forest Prod. Co. v. Emp. Div. (Arrant), 86 Or App 684, 741 P2d 915 (1987)

 

      Where claimant for unemployment benefits voluntarily quit job rather than submit to drug test which employer required as part of general policy, determination on remand was required as to whether compliance with drug test requirement left employee no reasonable alternative but to leave work. Glide Lumber Prod. Co. v. Emp. Div. (Coats), 87 Or App 152, 741 P2d 904 (1987)

 

      Claimant’s admitted drug use before work, subsequent positive drug test and consequent violation of last-chance agreement with employer was insufficient to deny benefits where no evidence showed that off-duty drug use caused actual on-the-job impairment. Sun Veneer v. Employment Div., 105 Or App 198, 804 P2d 1174 (1991)

 

      Where drug test could not establish time of ingestion and employer could not prove claimant was under influence of or impaired by drugs while on job, claimant was eligible for benefits. Stone Forest Industries, Inc. v. Employment Div., 127 Or App 568, 873 P2d 474 (1994)

 

      Where employer has policy of requiring drug testing after work-related motor vehicle accident, employer need not prove actual impairment for unemployment benefit claimant’s positive drug test following motor vehicle accident to be considered under statute as act disqualifying claimant from receipt of unemployment benefits. Bibolet v. Employment Dept., 288 Or App 489, 407 P3d 831 (2017)

 

      Early separation

 

      Although requested by her supervisor to leave her position early, claimant voluntarily left work without good cause when she voluntarily agreed to leave her position before her term of employment expired, despite having option of continuing to work until end of her original term. Burton v. Employment Div., 91 Or App 377, 755 P2d 723 (1988), Sup Ct review denied

 

      Evidence

 

      Where evidence showed that there was question of credibility relevant to determination whether claimant’s conduct was misconduct or poor judgment, referee should not have made findings concerning disputed facts without resolving credibility issues. Precision Castparts Corp. v. Emp. Div., 88 Or App 562, 746 P2d 740 (1987)

 

      Good cause

 

      Good cause for leaving employment exists when external pressures are so compelling that a reasonably prudent person, exercising ordinary common sense and prudence, would be justified in quitting work under similar circumstances. Stevenson v. Morgan, 17 Or App 428, 522 P2d 1204 (1974)

 

      “Good cause” refers only to cause which is objectively related to employment rather than arising solely from the employee’s personal life. Arias v. Employment Div., 26 Or App 841, 554 P2d 538 (1976)

 

      Whether “good cause” may include personal reasons is value judgment entrusted to division. Sothras v. Employment Div. 48 Or App 69, 616 P2d 524 (1980)

 

      In determining whether petitioner had good cause to leave his employment, consideration must be given to suitable work factors of ORS 657.190. Ruiz v. Employment Division, 83 Or App 609, 733 P2d 51 (1987)

 

      EAB could conclude that if employer lacks reasonable grounds for believing particular employee is impaired, that individual has good cause for quitting work rather than submit to drug test. Redman Homes, Inc. v. Employment Div., 97 Or App 653, 777 P2d 414 (1989)

 

      Where Employment Appeals Board concluded that claimant had voluntarily left work with good cause and failed to explain why its findings did not lead to conclusion that claimant was able to perform her job when her employer was willing to accommodate her condition, EAB failed to state clearly and precisely what it finds to be facts and why those facts rationally lead to decision it makes. Douglas County v. Employment Div., 99 Or App 625, 783 P2d 1019 (1989)

 

      Alternatives to leaving work are considered as part of determination of whether claimant left work without good cause under this section not suitability of work under ORS 657.190. Douglas County v. Employment Div., 99 Or App 625, 783 P2d 1019 (1989)

 

      In deciding if claimant left work without good cause, division is not limited to considering separation from last employer but may review whether separation from prior employer is disqualifying act if claimant has not yet earned four times her weekly benefit amount. Employment Div. v. Sears, Roebuck & Co., 102 Or App 490, 794 P2d 828 (1990)

 

      Where Employment Appeals Board failed to explain change in finding concerning credibility of claimant and failed to consider whether employer’s offer violated minimum wage law, EAB erred in concluding that claimant had refused offer of suitable work without good cause. Newman v. Employment Div., 109 Or App 164, 818 P2d 960 (1991)

 

      Before determining that employee failed to consider reasonable alternatives, Employment Appeals Board must make finding that reasonable alternatives existed. Fisher v. Employment Dept., 139 Or App 320, 911 P2d 975 (1996)

 

      In determining whether claimant had “good cause” for voluntarily leaving work, circumstances existing from date of resignation to date of separation from employment are relevant. Ponder v. Employment Dept., 171 Or App 435, 15 P3d 602 (2000)

 

      Where victim of domestic violence gave notice prior to leaving employment, whether victim believed reasonable alternatives to leaving employment existed was determined as of date employment ended, not date victim gave notice. Constantine v. Employment Department, 200 Or App 677, 117 P3d 279 (2005)

 

      Hours of work

 

      Evidence of continued tardiness by itself is sufficient to support a conclusion that a misconduct discharge was warranted. Balduyck v. Morgan, 9 Or App 363, 497 P2d 377 (1972); Steward v. Employment Div., 28 Or App 779, 562 P2d 648 (1977)

 

      Benefits were properly denied since the claimant’s actions of refusing to work overtime constituted “misconduct” connected with his work. Stromberg v. Employment Div., 25 Or App 455, 549 P2d 686 (1976)

 

      Injury

 

      Employee was not discharged for misconduct where failure to return to work after injury was based on physician’s advice, even though films showed employee engaged in activity inconsistent with claimed disability. Pac. N.W. Bell v. Emp. Div., 37 Or App 843, 588 P2d 843 (1978)

 

      Lack of employment

 

      Where claimant waived seniority rights to benefit junior employees and was laid off for lack of work, because employees junior to claimant would have been laid off had claimant not waived seniority rights, claimant was not entitled to benefits. Leonard v. Employment Division, 90 Or App 81, 750 P2d 1186 (1988)

 

      Where employer determined that 40 employees had to be terminated due to lack of work, claimant voluntarily accepted offered severance package and was terminated and, had claimant not made that choice, employee junior to claimant would have been terminated, claimant was not entitled to compensation. Crawford v. Employment Division, 90 Or App 191, 750 P2d 1217 (1988)

 

      Misconduct

 

      The phrase “misconduct connected with his work” is a sufficiently definite standard for discharge from employment, Weirich v. Employment Division, 19 Or App 479, 528 P2d 105 (1974)

 

      The claimant’s action in leaving work for a day did not constitute disqualifying misconduct. Geraths v. Employment Div., 24 Or App 201, 544 P2d 1066 (1976)

 

      Evidence was sufficient to show that telephone installer engaged in misconduct by misrepresenting his physical ability to work for purpose of obtaining workers compensation benefits. Oullette v. Employment Division, 34 Or App 591, 579 P2d 301 (1978)

 

      Ordinarily, single instance of misconduct is insufficient evidence to show that claimant’s actions were wilful, conscious, and in derogation of interests of employer. Goodwin v. Employment Division, 35 Or App 299, 581 P2d 115 (1978)

 

      EAB must address whether employee’s behavior was isolated instance of poor judgment or good faith error when determining whether behavior was misconduct. Miranda v. Employment Division, 71 Or App 462, 692 P2d 697 (1984)

 

      Employer could prove claimant was terminated for misconduct using almost exclusively documentary and hearsay evidence notwithstanding that claimant presented direct evidence; referee must assess all evidence, both hearsay and non-hearsay and then clearly state which evidence is found to be persuasive and credible. Tri-Met v. Employment Div., 88 Or App 122, 744 P2d 296 (1987)

 

      Claimant discharged after single “loud and vulgar outburst” was not discharged for misconduct connected with work. Bunnell v. Employment Division, 304 Or 11, 741 P2d 887 (1987)

 

      Determination of misconduct demands finding of willfulness or recurring negligence. Thomas v. Employment Division, 90 Or App 454, 752 P2d 1248 (1988)

 

      Where employment benefits claimant believed that conviction had been expunged and accordingly, answered question on employment application concerning previous criminal conviction by stating he had none, such action, though intentional, was taken in good faith and did not constitute misconduct. Muldrew v. Employment Div., 92 Or App 60, 757 P2d 438 (1988)

 

      Where applicable rule excludes isolated instances of poor judgment from definition of “misconduct,” and where referee’s order did not reflect consideration of whether claimant’s conduct was an isolated instance of poor judgment, court remanded to Employment Appeals Board for reconsideration of that issue. Flaucher v. Employment Division, 92 Or App 396, 758 P2d 422 (1988)

 

      Discharged nursing home laundry worker committed misconduct by withholding linen from employees not supportive of union at expense of patients cared for, shortly after receiving written warning about interfering with work of fellow employees. York v. Employment Division, 92 Or App 545, 759 P2d 310 (1988)

 

      Evidence that claimant was intoxicated three hours into work shift and prior agreement with employer that positive result on random alcohol test could result in termination was sufficient to show that claimant was working impaired and that conduct was wilful and Employment Appeals Board decision to grant unemployment insurance benefits on ground that claimant had not been “discharged for misconduct connected with work” not rationally related to findings of fact. PGE v. Employment Division, 95 Or App 647, 770 P2d 940 (1989)

 

      Where claimant refused to shave beard resulting in termination from employment and denial of unemployment benefits, findings indicate claimant was following advice of his psychologist and refusal does not necessarily constitute “wilful disregard of employer’s interest” or “recurring negligence” demonstrating “wrongful intent.” Whitacre v. Employment Div., 102 Or App 229, 793 P2d 1390 (1990)

 

      Where substantial evidence in record supports Employment Appeals Board’s finding that claimant took drink from employer’s shelf intending to pay for it but subsequently forgot, board was correct in concluding that claimant was not subject to disqualification under this section for misconduct. Fred Meyer, Inc. v. Employment Div., 102 Or App 356, 794 P2d 1237 (1990)

 

      Cancellation of benefits because discharge was for commission of felony or theft in connection with work does not require prior finding that discharge was for misconduct connected with work, and Employment Appeals Board should have considered conviction unless it had been reversed, vacated or set aside. Corvallis Tool Co. v. Employment Div., 102 Or App 463, 795 P2d 576 (1990)

 

      Provision dealing with discharge for commission of felony or theft has its own definition of misconduct and administrative rule modifying definition to allow exception for isolated instance of poor judgment does not apply. Fred Meyer v. Employment Div., 103 Or App 404, 797 P2d 1066 (1990)

 

      Employee’s violation of last-chance agreement prohibiting employee’s future drug use as condition of employment was itself insufficient for employee’s off-duty drug use to constitute misconduct connected with work. Sun Veneer v. Employment Div., 105 Or App 198, 804 P2d 1174 (1991)

 

      Where, because of claimant’s erratic behavior and history of stress-related absences, employer ordered claimant to have psychological examination, claimant’s refusal to participate in examination by psychologist selected by employer was misconduct connected with work. Langer v. Employment Div., 111 Or App 154, 826 P2d 6 (1992)

 

      Finding by Employment Division referee that employee was fired for isolated instance of poor judgment was not finding that employee was not fired for misconduct. Nelson v. Emerald People’s Utility District, 318 Or 99, 862 P2d 1293 (1993)

 

      To be disqualifying, “misconduct connected with work” must be undertaken with at least some level of volition or some mental state that makes actor accountable for action or failure to act, so per se disqualification for alcohol-related action is improper. Steele v. Employment Dept., 143 Or App 105, 923 P2d 1252 (1996), aff’d 328 Or 292, 974 P2d 207 (1999)

 

      Activity occurring during off-duty hours is “connected with work” where activity reflects on integral consideration for holding position and thereby causes breakdown in employment relationship. Levu v. Employment Dept., 149 Or App 29, 941 P2d 1056 (1997)

 

      Multiple closely related acts of misconduct may be assessed as components of single occurrence of misconduct. Perez v. Employment Dept., 164 Or App 356, 992 P2d 460 (1999)

 

      Claimant’s loss of driver license after conviction for driving under influence of intoxicants constituted misconduct connected with work when driver license was requirement of job. Barnes v. Employment Dept., 171 Or App 342, 15 P3d 599 (2000)

 

      Noncompetition agreements

 

      Reasoning of Employment Appeals Board did not support conclusion that claimant left work without good cause where employer required claimant to sign contract containing noncompetition clause in order to continue employment and claimant refused to sign contract and, as a result, left work. Ryan v. Employment Div., 87 Or App 471, 742 P2d 707 (1987)

 

      Off-duty conduct

 

      The claimant’s wrongful off-duty activities resulting in discharge were held not “misconduct connected with work” where the activity for which the claimant was discharged occurred off the working premises and outside the course and scope of employment and the employer failed to introduce evidence of a breach of an employer’s rule. Giese v. Employment Div., 27 Or App 929, 557 P2d 1354 (1976), Sup Ct review denied

 

      The phrase “connected with his work” was added to draw a distinction between misconduct while off-duty and misconduct in the course and scope of employment. Giese v. Employment Div., 27 Or App 929, 557 P2d 1354 (1976), Sup Ct review denied

 

      Where claimant’s assault of coworker had genesis in workplace and occurred adjacent to workplace premises immediately after both men left work and while both were still in postal service uniform, there was substantial evidence to support conclusion that altercation was connected with work. Flaucher v. Employment Division, 92 Or App 396, 758 P2d 422 (1988)

 

      “Wilfulness” is question of fact, and EAB erred in understanding that all alcohol-related conduct by alcoholic person is necessarily product of person’s alcoholism and cannot be volitional. James River Corp. v. Employment Division, 94 Or App 268, 765 P2d 217 (1988)

 

      Board correctly found conduct occurring in restaurant after business hours was misconduct connected with work when job description required certain standard of conduct by employee while off-duty and employee’s relationship with customers in towns where employer engaged in business was important to employer’s business. Erne v. Employment Division, 109 Or App 629, 820 P2d 875 (1991)

 

      Activity occurring during off-duty hours is “connected with work” where activity reflects on integral consideration for holding position and thereby causes breakdown in employment relationship. Levu v. Employment Dept., 149 Or App 29, 941 P2d 1056 (1997)

 

      Reemployment and refusing employment

 

      Claimant was not justified in refusing to accept reemployment because his wages were reduced to a lower rate, based upon his new permanent duties. Vargas v. Employment Div., 22 Or App 18, 537 P2d 569 (1975)

 

      Evidence was sufficient to show that claimant had refused suitable employment, notwithstanding that claimant would have been required to hire babysitter to care for children had she accepted the position. Jones v. Employment Division, 30 Or App 103, 566 P2d 1202 (1977)

 

      Claimant’s refusal to accept employment as industrial first-aid nurse with cannery, on ground that 11 hour shift required by job was not normal in nursing profession, constituted failure to accept offer of suitable work. Gillette v. Employment Division, 34 Or App 53, 577 P2d 1357 (1978)

 

      Where petitioner lost job when school district funds were cut, continued to seek work of same type, but declined to interview for employment with school located some distance from petitioner’s house, there was not substantial evidence to support determination that school was within petitioner’s labor market. McCann v. Emp. Div., 53 Or App 102, 630 P2d 1335 (1981)

 

      Claimant should not be denied benefits under this section or ORS 657.325 unless referral is actually made by division, claimant understands referral is being made and referral is to suitable work for claimant. Frank v. Employment Div., 57 Or App 646, 646 P2d 70 (1982)

 

      Striking worker is excused only from having to accept work from struck employer, not from seeking work from other employers. Cordova v. Employment Div., 108 Or App 223, 815 P2d 705 (1991)

 

      Retirement

 

      Employee retired at age of 65 under collective bargaining agreement did not leave work voluntarily without good cause and was entitled to unemployment benefits. Publishers Paper Co. v. Morgan, 10 Or App 94, 498 P2d 798 (1972), Sup Ct review denied

 

      Strikes

 

      Where collective bargaining agreement was breached by employer’s unilateral reduction in wages, union members on strike in response to reduction were not disqualified from receiving unemployment benefits. Roseburg Forest Products Co. v. Employment Div., 313 Or 301, 835 P2d 889 (1992)

 

      Suitable work

 

      Claimant who leaves unsuitable work has not left without cause and, where claimant alleged she left work because it was unsuitable, referee was required to make finding on suitability. Dooley v. Employment Division, 88 Or App 609, 746 P2d 750 (1987)

 

      Travel

 

      Where travel was on-going requirement of job of sales representative, and employer’s only request that sales representative make three-day sales trip was made eleven months after hiring, sales representative’s absolute refusal to travel constituted “misconduct” within this section. Margolin v. Employment Division, 31 Or App 597, 571 P2d 162 (1977)

 

      Voluntary separation

 

      When a married couple is afforded the opportunity to decide which one of them will transfer to comply with a company policy prohibiting married couples from working in the same department, and the company has valid business reasons for the policy, that policy does not form the basis for leaving work with good cause. Hess v. Oregon Employment Div., 29 Or App 229, 562 P2d 1232 (1977)

 

      Employee who voluntarily resigned because he believed that he would be discharged in the immediate future under circumstances which would not reflect well upon his performance as an employee did not “leave work with good cause.” Beaverton School Dist. No. 48 v. Employment Div., 29 Or App 487, 564 P2d 717 (1977)

 

      Part-time instructor at community college did not voluntarily leave work without good cause where her old contract expired, and she was never offered a new one. Kovach v. Employment Division, 35 Or App 609, 582 P2d 460 (1978)

 

      Where claimant left employment by logging company under notice by foreman he would be laid off in near future and should seek other employment but had not been notified of exact date of layoff, and reason for leaving employment was to hold self available for work on other job he had arranged but for which he had not been called concerning specific time to report for work, claimant voluntarily left work without good cause under this section. Putnam v. Employment Div., 36 Or App 267, 584 P2d 348 (1978)

 

      Where claimant left one job to return to school as well as take more attractive employment and nothing about first job would cause reasonably prudent person to quit, there was not good cause for termination, entitling claimant to receive compensation chargeable to first employer. Waide v. Employment Div., 38 Or App 121, 589 P2d 1138 (1979)

 

      Where there was evidence parties had agreed claimant would leave work on certain date if she were covered by company insurance for dental appointment on subsequent date and claimant was later told she was in fact covered, Board properly concluded claimant voluntarily left work; denial of unemployment benefits affirmed. Schmelzer v. Employment Div., 57 Or App 759, 646 P2d 650 (1982), Sup Ct review denied

 

      Claimant voluntarily left work without good cause where (1) upon receipt of job offer he gave employer two weeks notice but left before the end of notice period and (2) upon reporting for new job was informed that due to reduction in work orders no job was available. Green v. Employment Division, 59 Or App 367, 650 P2d 1077 (1982), Sup Ct review denied

 

      Claimant who moved to North Dakota to accept job but maintained legal residence in Oregon, supported family and made payments on debts in Oregon and paid living and working expenses in North Dakota so that combined expenses exceeded wages by $550 a month, had good cause to quit job in North Dakota. Kuske v. Employment Div., 64 Or App 695, 669 P2d 817 (1983)

 

      Although there was substantial evidence, at least in the abstract, to support finding that petitioner had reasonable alternatives to quitting, decision of Employment Appeals Board was reversed and remanded for determination of whether alternatives would have been “fruitless.” Ferguson v. Employment Division, 68 Or App 849, 683 P2d 147 (1984)

 

      Employment Appeals Board order disqualifying claimant from receiving unemployment compensation was reversed where board specifically found that claimant did not deliberately make errors and thus board’s conclusion that claimant was guilty of misconduct did not follow from findings. Gething v. Employment Div., 68 Or App 900, 683 P2d 133 (1984)

 

      Failure of petitioner to meet employer’s performance standards did not constitute misconduct. Bowman v. Employment Division, 71 Or App 16, 691 P2d 148 (1984), Sup Ct review denied

 

      Employment Appeals Board’s failure to address, in its findings of fact, petitioner’s contention that he left work because of wife’s health problems rendered its order that petitioner “voluntarily left work without good cause” insufficient. Gutierrez v. Employment Division, 71 Or App 658, 693 P2d 1344 (1984)

 

      There is no discharge if employer and claimant mutually agree on termination date or if claimant agrees to accelerate termination date. J.R. Simplot Co. v. Employment Div., 102 Or App 523, 795 P2d 579 (1990)

 

      Suitability of work is not statutorily required consideration in determining whether claimant left work without good cause. Hunt v. Employment Dept., 139 Or App 440, 912 P2d 425 (1996)

 

      Where claimant employee was sole stockholder in employer corporation, dissolution of corporation was agreement to mutually acceptable termination date and therefore voluntary leaving of work. Employment Dept. v. Shurin, 154 Or App 352, 959 P2d 637 (1998)

 

      Where employee voluntarily submits then subsequently attempts to withdraw resignation, employer refusal to allow withdrawal does not change voluntary nature of resignation. Counts v. Employment Department, 159 Or App 22, 976 P2d 96 (1999)

 

LAW REVIEW CITATIONS: 27 WLR 182 (1991)

 

      657.184

 

NOTES OF DECISIONS

 

      Foreign national who has pending application for permanent residence and to whom INS has granted privilege of voluntary departure, regularly renewable until resolution of application for permanent residence, is permanently residing in United States under color of law and is entitled to have earnings credited to eligibility for unemployment compensation. Rubio v. Employment Division, 66 Or App 525, 674 P2d 1201 (1984)

 

      Color of law analysis is focused on government agency and color of law will be found where either agency has taken affirmative action or policy exists prohibiting deportation. Gillar v. Employment Division, 300 Or 672, 717 P2d 131 (1986)

 

      Alien is “permanently residing in the United States” when alien has filed application which is indefinite in nature, has intention of remaining in this country and has significant ties to this country. Gillar v. Employment Division, 300 Or 672, 717 P2d 131 (1986)

 

      657.190

 

NOTES OF DECISIONS

 

      The amount set by claimant as a minimum acceptable salary in her customary occupation indicated she was not actively seeking and unable to obtain suitable work. Fojardo v. Employment Div., 20 Or App 390, 532 P2d 29 (1975)

 

      This section vests reasonable discretion in administrator in determining whether particular job constitutes suitable work. Vail v. Employment Division, 30 Or App 365, 567 P2d 129 (1977), Sup Ct review denied

 

      Employment Division had authority to determine by rule that worker who quits job because of wage reduction is not entitled to unemployment benefits if post-reduction wages are comparable to wages earned by majority of workers performing similar work in same locality. Employment Division v. Asher, 86 Or App 350, 739 P2d 69 (1987)

 

      Change in worker’s personal financial circumstances that makes rate of pay inadequate is not factor that may be considered by board in determining whether worker left suitable employment without good cause. Employment Division v. Pelchat, 108 Or App 395, 816 P2d 636 (1991). But see Howard v. Employment Dept., 166 Or App 39, 996 P2d 527 (2000)

 

      Change in rate of pay for claimant’s job was not personal financial circumstance and should have been considered in determining whether work was suitable. Klumb v. Employment Division, 123 Or App 295, 858 P2d 1354 (1993)

 

      In determining whether claimant left suitable employment, personal financial circumstances of claimant are relevant consideration. Howard v. Employment Dept., 166 Or App 39, 996 P2d 527 (2000)

 

      657.195

 

NOTES OF DECISIONS

 

      The amount set by claimant as a minimum acceptable salary in her customary occupation indicated she was not actively seeking and unable to obtain suitable work. Fojardo v. Employment Div., 20 Or App 390, 532 P2d 29 (1975)

 

      “New work” presupposes absence of employer-employee relationship or any attachment of claimant to profferred job. Barrier v. Employment Div., 29 Or App 387, 563 P2d 1230 (1977); Cret v. Employment Dept., 146 Or App 139, 932 P2d 560 (1997)

 

      This section applies only to situation where unemployed person refuses job offer on ground that pay, hours or other conditions are substantially below those prevailing in area for similar work. Vail v. Employment Division, 30 Or App 365, 567 P2d 129 (1977), Sup Ct review denied

 

      657.200

 

NOTES OF DECISIONS

 

      Individual is “directly interested” in labor dispute when individual’s wages, hours or conditions of work will be affected favorably or adversely by outcome. Scoggins v. Morgan, 11 Or App 502, 503 P2d 509 (1972)

 

      When claim is challenged, claimant has at least burden of going forward with evidence until claimant makes prima facie case of requalifying. Scoggins v. Morgan, 11 Or App 502, 503 P2d 509 (1972)

 

      The matter of claimant’s “direct interest” in labor dispute is question of fact. Scoggins v. Morgan, 11 Or App 502, 503 P2d 509 (1972)

 

      This section does not violate equal protection clause, Ore. Const. Art. I, §20. Scoggins v. Morgan, 11 Or App 502, 503 P2d 509 (1972)

 

      Claimant whose work is integrated with that of strikers is prima facie disqualified as member of a class. Scoggins v. Morgan, 11 Or App 502, 503 P2d 509 (1972)

 

      An agreement which imposed a duty on an employer to refrain from retaliating against union members choosing to honor a picket line did not affect the members’ eligibility for unemployment compensation. McKinney v. Employment Div., 21 Or App 730, 537 P2d 126 (1975)

 

      Claimants involved in a “labor dispute” are requalified for compensation if they have no “community of interest” with the striking workers. McIntire v. Employment Div., 24 Or App 67, 544 P2d 173 (1976)

 

      To qualify for unemployment compensation while picketing continues a claimant who has been permanently replaced must further show that (1) he has unilaterally abandoned the strike and (2) he has affirmatively sought reemployment. Colee v. Employment Div., 25 Or App 39, 548 P2d 167 (1976)

 

      Substantial evidence supported the appeals board’s conclusion that the returning strikers continued unemployment was not “due to a labor dispute” but was caused by the fact that their employer no longer had any work available. Skookum Co. Inc., v. Employment Div., 276 Or 303, 554 P2d 520 (1976)

 

      Where waitress-assistant manager left work because employer was unresponsive to her complaints about unsatisfactory food handling and unclean cooking and service facilities, it was error for Employment Board to fail to decide whether there was labor dispute within meaning of this section. Bierly v. Employment Div., 44 Or App 629, 606 P2d 691 (1980)

 

      There was not sufficient evidence to support Employment Appeals Board order that claimants were not entitled to unemployment benefits because they were unemployed “due to a labor dispute.” Cropley v. Employment Division, 72 Or App 93, 694 P2d 1025 (1985), Sup Ct review denied

 

      Claimants, disqualified by this section for participating in labor dispute, were no longer disqualified after union vote to terminate strike and dispute. Foy Martin Sheet Metal v. Employment Div., 77 Or App 454, 713 P2d 662 (1986)

 

      This section does not include members of all locals of same international union as members of same “class.” James E. Frick, Inc. v. Employment Div., 101 Or App 188, 790 P2d 33 (1990)

 

      Even though claimant has obtained other interim, temporary employment after leaving struck employer, this provision precludes individual from receiving unemployment benefits when striking, if person still claims employment rights by union agreement or otherwise. Nicolai-Morgan Products Co. v. Employment Div., 102 Or App 578, 795 P2d 598 (1990), Sup Ct review denied

 

      Where collective bargaining agreement was breached by employer’s unilateral reduction in wages, union members on strike in response to reduction were not disqualified from receiving unemployment benefits. Roseburg Forest Products Co. v. Employment Div., 313 Or 301, 835 P2d 889 (1992)

 

      Participation of class members in labor dispute prevents claimant requalification for benefits as of week of participation, but does not act to retroactively deny benefits. Cret v. Employment Dept., 146 Or App 139, 932 P2d 560 (1997)

 

      657.205

 

NOTES OF DECISIONS

 

      Where claimant, who was not eligible for retirement, elected to take accrued retirement benefits in lump sum upon leaving work, neither her own nor her employer’s contribution to retirement fund could be deducted against her unemployment benefits. Employment Division v. Yamhill County, 46 Or App 823, 613 P2d 493 (1980)

 

      Claimant receiving lump sum payment of retirement benefits and transferring it into qualifying IRA was not disqualified from receiving unemployment compensation under this section. McKean-Coffman v. Employment Div., 312 Or 543, 824 P2d 410 (1992)

 

      657.215

 

NOTES OF DECISIONS

 

      Employment Division is not obligated to issue guidelines for its staff and the Board to follow in determining appropriate periods of disqualification under this section. Cook v. Employment Div., 47 Or App 437, 614 P2d 1193 (1980), Sup Ct review denied

 

      657.221

 

NOTES OF DECISIONS

 

      Assurance of public employment is reasonable even if it is subject to availability of funds and consequent effect of a reduction-in-force provision of union contract. Zeek v. Employment Div., 65 Or App 515, 672 P2d 349 (1983)

 

      It was within Employment Appeal Board’s responsibility to determine that traditional academic year is an academic year within meaning of this section, even though it replaced a 12-month school year, and that petitioner, therefore, was assured of returning to work in a “similar capacity.” Zeek v. Employment Div., 65 Or App 515, 672 P2d 349 (1983)

 

      This section, which limits payment of compensation to non-instructional school employees during regularly scheduled school vacations, does not require denial of benefits to employee who has lost full-time position and is performing sporadic part-time work both before and after holiday period. Kautz v. Employment Div., 87 Or App 241, 742 P2d 622 (1987)

 

      Claimant, school employee, was ineligible to receive unemployment benefits during regular school recess where she was employed in noninstructional capacity immediately before recess and was reasonably assured of same work after recess. Employment Division v. Currin, 89 Or App 433, 749 P2d 609 (1988)

 

      “In an institution” means “in an educational institution or an institution of higher education.” Multnomah Education Service Dist. v. Emp. Div., 119 Or App 138, 849 P2d 558 (1993)

 

      Outdoor School, operated by education service district, was educational institution. Multnomah Education Service Dist. v. Emp. Div., 119 Or App 138, 849 P2d 558 (1993)

 

      Assurance that sporadic work would again be available in following academic year did not disqualify claimant from benefits during summer recess because benefits were based on prior employment. Hutchinson v. Employment Div., 126 Or App 717, 870 P2d 847 (1994). But see Salem-Keizer School Dist. #24J v. Employment Dept., 137 Or App 320, 904 P2d 1082 (1995)

 

      657.265

 

NOTES OF DECISIONS

 

      The applicant’s decision not to have mail forwarded does not excuse a failure to file timely notices of appeal. Anderson v. Employment Div., 24 Or App 503, 546 P2d 779 (1976)

 

      Part-time college instructor, who was found ineligible for benefits under ORS 657.155 because of insufficient availability for work, waived notice of appeal under this section where notice of hearing listed eligibility under ORS 657.155 as issue and parties litigated issue without objection. Kovach v. Employment Division, 35 Or App 609, 582 P2d 460 (1978)

 

      Where evidence established that only seven days elapsed between mailing date of notice of Employment Appeals Board hearing and hearing and that claimant failed to receive notice because out of town on bona fide job search, claimant as matter of law established good cause for failure to appear at hearing. Bursell v. Employment Div., 71 Or App 729, 694 P2d 558 (1984)

 

      657.269

 

NOTES OF DECISIONS

 

      Before request for hearing upon eligibility decision can exist, there must be underlying decision to appeal or upon which to request hearing. Kroetch v. Employment Dept., 289 Or App 291, 409 P3d 60 (2017)

 

      657.270

 

NOTES OF DECISIONS

 

      Telephone hearing constituted “fair hearing” under this section. Babcock v. Employment Division, 72 Or App 486, 696 P2d 19 (1985)

 

      657.275

 

NOTES OF DECISIONS

 

      Under pre-1999 version of statute, Employment Appeals Board may not sustain denial of benefits on grounds not alleged at hearing before administrative law judge. Johnson v. Employment Dept., 177 Or App 464, 34 P3d 716 (2001)

 

      657.280

 

NOTES OF DECISIONS

 

      Under existing administrative rule, the review of the Employment Appeals Board was de novo on the record made before the referee. Stevenson v. Morgan, 17 Or App 428, 522 P2d 1204 (1974)

 

      657.282

 

NOTES OF DECISIONS

 

      The substantial evidence standard, used under this section in judicial review of Board findings, established burden of proof by preponderance of evidence. Cook v. Employment Div., 47 Or App 437, 614 P2d 1193 (1980), Sup Ct review denied

 

      Order of Employment Appeals Board that claimants were not entitled to receive unemployment benefits because unemployment was “due to labor dispute” was not supported by substantial evidence. Cropley v. Employment Division, 72 Or App 93, 694 P2d 1025 (1985), Sup Ct review denied

 

      Petition for review of order of Employment Appeals Board disqualifying petitioner from unemployment benefits filed more than 30 days after order was dismissed as untimely, despite subsequent issuance of “notice of overpayment.” Danz v. Employment Division, 96 Or App 97, 771 P2d 649 (1989)

 

      657.290

 

NOTES OF DECISIONS

 

      Once the division makes a decision based on the general conditions of eligibility enumerated in ORS 657.155, it is precluded from reversing that determination on any of those grounds, however, it is free to reconsider and make a new determination on a new ground or issue or on relevant new facts. Lovendahl v. Employment Div., 26 Or App 665, 554 P2d 611 (1976), Sup Ct review denied

 

      Division can amend eligibility decisions only on the two grounds mentioned in this section and administrative rule attempting to expand authority to amend is invalid. Employment Div. v. Smith, 64 Or App 33, 666 P2d 1369 (1983)

 

      Filing of request for reconsideration within 30 days of EAB’s decision tolled statute, and claimant then had 30 days from date of denial of reconsideration in which to file petition for judicial review. Mascorro v. Employment Div., 70 Or App 531, 689 P2d 1326 (1984)

 

      Where Employment Appeals Board withdrew its original order denying unemployment benefits to claimant, whom employer had discharged after random drug test revealed evidence of marijuana in claimant’s system, and replaced original order with amended order allowing benefits, withdrawal and replacement was “correction of previous error of fact or law” and was authorized by this section. Philomath Forest Products Co. v. Emp. Div, 86 Or App 678, 741 P2d 912 (1987)

 

      657.310

 

NOTES OF DECISIONS

 

      Where weekly claim forms provided by Employment Division asked claimant to report income-producing work done during reporting period, claimant did not make material misrepresentation in not reporting assisting wife on farm, because he received no remuneration. Shaffer v. Employment Division, 33 Or App 537, 577 P2d 85 (1978)

 

      There was substantial evidence to support finding that petitioner was not unemployed during weeks in question and, under this section, he was required to repay benefits received even though he claimed compensation received was for his son’s benefit. Cook v. Employment Div., 47 Or App 437, 614 P2d 1193 (1980), Sup Ct review denied

 

      Restitution is criminal sanction and not intended to be equivalent of civil award and, although defendant satisfied restitution ordered as part of sentence on conviction for theft involving unlawful obtainment of unemployment benefits, that determination did not collaterally estop plaintiff, administrator of Employment Division, from bringing civil action for recovery of unlawfully obtained benefits because issue resolved in criminal case was not same as issue to be resolved in civil case. Thorne v. Gay, 92 Or App 251, 758 P2d 380 (1988)

 

      Decision regarding liability for overpayment “has become final” for purposes of allowing Employment Department to seek repayment notwithstanding that ruling regarding existence of misrepresentation is on appeal. Employment Dept. v. Clark, 187 Or App 431, 67 P3d 991 (2003)

 

      657.315

 

NOTES OF DECISIONS

 

      Civil action is sole means available for Employment Division to recover erroneous payment of benefits. Johnson v. Employment Div., 67 Or App 710, 680 P2d 386 (1984)

 

      657.325

 

NOTES OF DECISIONS

 

      Claimant should not be denied benefits under this section or ORS 657.176 unless referral is actually made by division, claimant understands referral is being made and referral is to suitable work for claimant. Frank v. Employment Div., 57 Or App 646, 646 P2d 70 (1982)

 

      Although there may be option to promulgate rules or issue orders, assistant director must provide for consistent interpretation and application of broad terms of statute. Trebesch v. Employment Division, 300 Or 264, 710 P2d 136 (1985)

 

      657.471

 

NOTES OF DECISIONS

 

      Relief is available to base year employer only if employee left voluntarily for reasons not attributable to employer. Johnson v. Employment Division, 124 Or App 77, 861 P2d 1032 (1993)

 

      “Job prerequisite required by law or administrative rule” refers to requirement that is preliminary to performing particular job and with which compliance is readily ascertainable. VavRosky MacColl Olson Busch & Pfeifer PC v. Employment Department, 212 Or App 174, 157 P3d 312 (2007)

 

      Adherence to rules of professional conduct for attorneys is not “job prerequisite required by law or administrative rule.” VavRosky MacColl Olson Busch & Pfeifer PC v. Employment Department, 212 Or App 174, 157 P3d 312 (2007)

 

      Where former employee lost part-time employment and filed in same month for unemployment benefits, then began part-time employment with employer-petitioner six months later, employee’s second-year benefits may not be charged to petitioner. Hooton, Wold & Okrent, LLP v. Employment Department, 283 Or App 776, 391 P3d 858 (2017)

 

      657.480

 

NOTES OF DECISIONS

 

      Employment Division is not precluded by res judicata from reexamining its original determination that employer is successor-in-interest to a prior employer, under ORS 657.676, if reconsideration is restricted to clerical or computational errors. Jefferson Street Holding Co. v. Employment Div., 42 Or App 427, 600 P2d 928 (1979)

 

      Where original employer conceded in Court of Appeals that it was not relieved of liability for payroll tax deficiencies by transfer to successor employer though referee concluded liability passed to successor employer, only remaining fact question was date on which business was transferred. Employment Div. v. Brown, 57 Or App 642, 646 P2d 73 (1982)

 

      Referee properly held that withdrawal of partner from law partnership and assumption of business by remaining partners is a “transfer” within meaning of this section so as to subject new entity to reevaluation of its experience rating because business was formerly conducted by one employing entity is now conducted by two separate entities. Joseph, Baberer & Carpenter v. Emp. Div., 85 Or App 606, 737 P2d 628 (1987), Sup Ct review denied

 

      657.505

 

NOTES OF DECISIONS

 

      Corporation and person acting solely as corporate director are not in employer-employee relationship. Necanicum Investment Co. v. Employment Department, 345 Or 138, 190 P3d 368 (2008)

 

ATTY. GEN. OPINIONS: School districts expenditure of funds set aside for potential unemployment insurance liability for operating the district, (1976) Vol 38, p 304

 

      657.506

 

NOTE: Repealed as of April 28, 2009

 

NOTES OF DECISIONS

 

      Under version of this section in effect in 1980 and 1981, contracts which provide only that leader of group of musicians agrees to assume all payroll taxes and liabilities do not meet requirements for shifting employment tax liability from hirer of group to leader. The Flame, Inc. v. Employment Division, 69 Or App 701, 687 P2d 1118 (1984)

 

      Because contract between nonprofit employing unit and musician is not conclusive evidence that musician is independent contractor, nonprofit is employer unless musician qualifies as independent contractor under ORS 657.040. Oregon Festival of American Music v. Employment Department, 204 Or App 478, 130 P3d 795 (2006)

 

ATTY. GEN. OPINIONS: Validity of this section, determining employer of musicians’ group, (1972) Vol 35, p 1306

 

      657.515

 

NOTES OF DECISIONS

 

      Where nonprofit religious organization engaged in work for profit, subjecting itself to unemployment tax liability, interest on amount due ran from time subject employment occurred rather than from time division affirmatively declared that employment was subject to taxation. Shiloh Youth Revival Center v. Emp. Div., 44 Or App 81, 605 P2d 704 (1980)

 

      657.665

 

ATTY. GEN. OPINIONS: Use of division’s client records by another departmental division, (1974) Vol 37, p 186

 

      657.676

 

NOTES OF DECISIONS

 

      Employment Division is not precluded by res judicata from reexamining its original determination that employer is successor-in-interest to prior employer, under this section, if reconsideration is restricted to clerical or computational errors. Jefferson Street Holding Co. v. Employment Div., 42 Or App 427, 600 P2d 928 (1979)

 

      Where nonprofit religious organization requested and received information regarding Employment Division’s regulations on unemployment tax exemptions, there was no official determination barring division under this section from reconsidering organization’s tax-exempt status. Shiloh Youth Revival Center v. Emp. Div., 44 Or App 81, 605 P2d 704 (1980)

 

      657.683

 

NOTES OF DECISIONS

 

      Under this section, employer-ministry had burden of proving that it came within exemption for services performed in employ of “church,” pursuant to ORS 657.072. Vic Coburn Evangel. Assoc. v. Emp. Div., 35 Or App 655, 582 P2d 51 (1978), Sup Ct review denied

 

      Petitioner did not satisfy its burden of proof that Employment Division’s assessment was incorrect by merely showing that division may have included out-of-state employees in its assessment. West Coast Truck Lines v. Emp. Div., 54 Or App 562, 635 P2d 1033 (1981), Sup Ct review denied

 

      Where unemployment tax assessment order is remanded following judicial review, hearing officer retains sole authority to act for Employment Department regarding order. Kaib’s Roving R.Ph. Agency, Inc. v. Employment Dept., 182 Or App 481, 50 P3d 1193 (2002)

 

      657.684

 

NOTES OF DECISIONS

 

      Where unemployment tax assessment order is remanded following judicial review, hearing officer retains sole authority to act for Employment Department regarding order. Kaib’s Roving R.Ph. Agency, Inc. v. Employment Dept., 182 Or App 481, 50 P3d 1193 (2002)

 

      657.732

 

(formerly 329.965)

 

NOTE: Repealed as of January 1, 2012

 

ATTY. GEN. OPINIONS: Confidentiality requirements affecting proposed operation of shared information system, (1993) Vol 47, p 1

 

      657.855

 

ATTY. GEN. OPINIONS: Agreement of leader of musicians’ group to pay tax, (1972) Vol 35, p 1306

 

      657.860

 

ATTY. GEN. OPINIONS: Agreement of leader of musicians’ group to pay tax, (1972) Vol 35, p 1306

 

      657.875

 

NOTES OF DECISIONS

 

      The applicant’s decision not to have mail forwarded does not excuse a failure to file timely notices of appeal. Anderson v. Employment Div., 24 Or App 503, 546 P2d 779 (1976)

 

      The time limit stated in ORS 657.471 (7) is not subject to extension under this section. Gilberts v. Employment Div., 29 Or App 597, 564 P2d 1073 (1977)

 

      Terms “good cause” and “a reasonable time” are delegative terms calling for policy judgment by agency. Sayers v. Employment Division, 59 Or App 270, 650 P2d 1024 (1982)

 

      Attorney’s negligent failure to timely file appeal is good cause only where untimely filing would be for good cause if attributed to claimant. McComas v. Employment Dept., 133 Or App 577, 891 P2d 1351 (1995), Sup Ct review denied