Updated on July 16, 2021
On July 15, 2021, the Oregon Department of Consumer and Business Services, Workers’ Compensation Division (WC), published this notice:
The text says:
Oregon law uses a two-step process when determining if a person is entitled to workers’ compensation coverage.
The first step is determining whether the person is a “worker,” which is defined by law as a person who performs services for pay and is subject to the direction and control of an employer. Independent contractors generally do not qualify as workers because they are free from direction and control
[…] translators and interpreters who qualify as “workers” may be entitled to workers’ compensation coverage.
The federal framework for determining whether a worker is an employee or not is set by the IRS and the Department of Labor.
The National Law Review gave a summary of the Department of Labor’s standards on July 19, 2021
This is the link to the IRS page (Independent Contractor or Employee?)
This Oregon link gives further definition to who is an employee and who is a contractor. State of Oregon: Independent Contractors – Employee or Independent Contractor?
A worker who provides services for remuneration generally will be considered an employee by the courts and state regulatory agencies, unless that worker meets the criteria required of an “independent contractor” (or other exception) with the emphasis falling on the word “independent.”
You should also note that there are a number of considerations which are not determinative in deciding whether a worker is an independent contractor:
1. The creation or use of a business entity, such as a corporation or a limited liability company, by an individual for the purpose of providing services does not, by itself, establish that the individual provides services as an independent contractor.
2. A contract in which the worker is assigned the label of “independent contractor.”
3. Payment to the worker is reported by way of a Form 1099 rather than a Form W2.
The following links may help interpreters and translators determine their status. This material was distributed by a speaker from WC at a conference for translators and interpreters. It was distributed at an OSTI conference and later at an OHCIA conference.
What is an Independent Contractor?
State Agency Criteria for Independent Contractors
Employers’ Supplemental Tax Guide
Oregon’s Independent Contractor Laws
State Agency Criteria for Independent Contractors
The following text is copied from the Oregon Revised Statutes on the definition of Independent Contractors in Oregon. Text in italics is my commentary.
ORS 670.600 text.
Independent contractor defined
(2) As used in ORS chapters 316, 656, 657, 671 and 701, independent contractor means a person who provides services for remuneration and who, in the provision of the services:
(a) Is free from direction and control over the means and manner of providing the services, subject only to the right of the person for whom the services are provided to specify the desired results;
Examples of direction and control:
- saying exactly where and at what time the interpreting service must be provided.
- giving the interpreter a phone for interpreting
- requiring the use of a particular software for translation
(b) Except as provided in subsection (4) of this section, is customarily engaged in an independently established business;
(c) Is licensed under ORS chapter 671 or 701 if the person provides services for which a license is required under ORS chapter 671 or 701; and
(d) Is responsible for obtaining other licenses or certificates necessary to provide the services.
Interpreters and translators are typically responsible for obtaining their own certifications.
(3) For purposes of subsection (2)(b) of this section, a person is considered to be customarily engaged in an independently established business if any three of the following requirements are met:
(a) The person maintains a business location:
Examples of things that do not qualify as a business location:
- A laptop in a corner of the living room
(A) That is separate from the business or work location of the person for whom the services are provided; or
(B) That is in a portion of the persons residence and that portion is used primarily for the business.
(b) The person bears the risk of loss related to the business or the provision of services as shown by factors such as:
(A) The person enters into fixed-price contracts;
(B) The person is required to correct defective work;
Making corrections to our translation work when the client requires it qualifies, because we are taking time off from other paying work to make things right.
In the case of interpreting, the risk we take is simply that we may never see that client again. Every interpreting appointment could be your last interpreting appointment with that client.
(C) The person warrants the services provided; or
(D) The person negotiates indemnification agreements or purchases liability insurance, performance bonds or errors and omissions insurance.
(c) The person provides contracted services for two or more different persons within a 12-month period, or the person routinely engages in business advertising, solicitation or other marketing efforts reasonably calculated to obtain new contracts to provide similar services.
Having business cards, engaging in some kind of advertising of our services, etc., would qualify.
Working with direct clients does count. So does working for nonprofits, the state, and an Indian tribe. See http://www.oregonlaws.org/ors/657.048.
(d) The person makes a significant investment in the business, through means such as:
(A) Purchasing tools or equipment necessary to provide the services;
We provide our own tools to provide the services.
(B) Paying for the premises or facilities where the services are provided; or
(C) Paying for licenses, certificates or specialized training required to provide the services.
We take care of our own training and licensing at our own cost and on our own time, taking time off from paying clients.
(e) The person has the authority to hire other persons to provide or to assist in providing the services and has the authority to fire those persons.
Language companies typically do not want us to subcontract our work to other people when we are not able to fulfill our contract.