Today, the Oregon Bureau of Labor and Industries issued an advisory opinion concluding that, under Oregon law, Uber drivers are properly classified as employees, not independent contractors. Although to date no case challenging the classification of drivers for Uber or any other transportation network company has been filed with BOLI, the opinion sets out how the agency will approach the question during any future investigation.
Applying the "economic realities" test adopted by courts under the Fair Labor Standards Act, BOLI concluded that Uber drivers "are not operating their own separate businesses with the degree of autonomy one expects with an independent contractor."
Finally, BOLI noted that while Oregon's minimum wage laws exempt "taxicab operators," the term is based on a traditional understanding of a taxicab driver and may not apply to Uber drivers.
Last week the Oregon Court of Appeals filled a gap in state law on long-arm personal jurisdiction. In Swank v. Terex Utilities, Inc., the court’s focus was ORCP 4D, which provides grounds for personal jurisdiction when an injury within the state arises from an act or omission outside the state. In Swank, plaintiff was injured when a crane owned by his employer collapsed. Plaintiff claimed that out-of-state defendant Manitex was negligent in conducting a retrofit campaign to address a known defect in the crane. Manitex disputed that it was subject to personal jurisdiction in Oregon.
To support long-arm jurisdiction, ORCP 4D provides that, in addition to the in-state injury, there must be evidence that the defendant had some contact with the state. That contact can include defendant’s solicitation or service activities under ORCP 4D(1), or use within the state of products manufactured or serviced by defendant under ORCP 4D(2).
Addressing an issue of first impression, the Court of Appeals held that there must be a link between the injury to plaintiff and defendant’s direct contacts with the state. Judge Armstrong, writing for the court, stated that to comport with due process standards, plaintiff’s claim “must arise out of or relate to at least one of the defendant’s in-forum contacts” listed in ORCP 4D(1) and (2).
Accordingly, defendant’s general sales and solicitations to customers in Oregon did not support personal jurisdiction because the personal injury to plaintiff did not arise from those contacts. However, plaintiff’s claim did relate to and arise from defendant’s efforts to retrofit the defective cranes in Oregon. On that basis, defendant was subject to personal jurisdiction.