Remuneration, control show that driver's friend was worker

In Oregon, a worker is defined as a person who "engages to furnish services for a remuneration, subject to the direction and control of an employer."

Case name: Department of Consumer and Business Services v. Clements, No. A141287 (Or. Ct. App. 12/29/10).

Ruling: The Oregon Court of Appeals concluded that a friend accompanying a truck driver on a job was a worker within the meaning of the workers' compensation law. The court sent the case back to determine whether his work was "casual."

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What it means: In Oregon, a worker is defined as a person who "engages to furnish services for a remuneration, subject to the direction and control of an employer."

Summary: The owner of a commercial trucking business was asked by a friend if he could go along on an interstate trucking job because he was interested in a career in trucking. The owner agreed and paid the friend to reinstate his driver's license before the trip. During the trip, the friend often asked if he could drive, and the owner allowed him to do so as much as 20 to 25 percent of the time. The owner did not pay the friend anything in wages, but he paid for all of the friend's meals, cigarettes, and lodging. On their way back, the friend was driving the truck when it was involved in an accident. Both the owner and friend were seriously injured. The friend filed a workers' compensation claim for his injuries. The Oregon Court of Appeals concluded that the friend was a worker under the workers' compensation law.

The court found substantial evidence that the friend was engaged by the trucking business to give services for remuneration. The friend drove the truck. The owner allowed him to drive and provided payment.

The court also decided that the trucking business had the "right to control" the friend. The owner always had the right to refuse to allow the friend to drive. Before he allowed the friend to drive, the owner made him walk around the truck to look for leaks and make sure the straps on the trailer were tight. The owner provided all of the equipment for the trip. Although he was not paid a wage, the friend received remuneration through food, lodging, and occasional money. There was no written contract or other evidence indicating that the owner had a right to fire the friend.

The court also concluded that the trucking business was a "nonsubject employer." It sent the case back for a determination of whether the friend was a "casual worker."

Read more at the WorkersComp Forum homepage.

February 14, 2011

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