BREWER, J.
Employer May Trucking Company petitions for judicial review of an order of the Employment Appeals Board (EAB) determining that claimant is eligible for unemployment benefits. Employer contends that claimant is not eligible for unemployment benefits because the services that he performed for employer fall within an exemption for "for-hire carriers" under ORS 657.047(1)(b). The facts are not in dispute; the parties' arguments concern whether EAB correctly interpreted and applied the pertinent statutes and related administrative rules. Accordingly, our review of that question is for errors of law. ORS 657.282; ORS 183.482(8)(a). For the reasons set out below, we reverse and remand for reconsideration.
Claimant was employed as a long-haul truck driver for employer beginning in 2007. In February 2008, claimant and employer executed a lease agreement and an "independent contractor agreement" pursuant to which claimant leased from employer a truck with employer's business logo on it, leased the truck back to employer, and then used the truck only to haul goods for employer. Claimant's actual duties were essentially identical both before and after the agreement was executed. Claimant's wife subsequently became seriously ill and moved to a nursing facility. As a consequence, claimant became solely responsible for the care of their 13-year-old
Employer does not challenge the determination that claimant left work for good cause. Rather, employer asserts that ORS 657.047(1)(b) precludes an award of employment benefits in this case because it is a "for-hire carrier" and claimant was a "person that leases their equipment to a for-hire carrier and that personally operates, furnishes and maintains the equipment and provides service thereto." ORS 657.047 provides in part:
EAB rejected employer's argument that ORS 657.047 precluded an award of unemployment benefits. In particular, EAB relied on OAR 471-030-0038(1)(a) (12/19/04), which provides:
EAB reasoned that the fact that employer is a "for-hire carrier" under ORS 657.047 was not dispositive of whether claimant had performed "work" for employer and thus was not disqualified from unemployment benefits under ORS 657.176.
Employer argues on judicial review that EAB misconstrued ORS 657.047 and related statutes. The Employment Department responds that EAB correctly interpreted and applied ORS 657.176 and OAR 471-030-0038, and that ORS 657.047 is not pertinent here.
In interpreting a statute, our task is to determine the legislature's intent by examining the text of the statute in context, as well as, if necessary, legislative history and applicable canons of statutory construction. State v. Gaines, 346 Or. 160, 171-72, 206 P.3d 1042 (2009). We turn first to the basic statutory definitions and provisions in ORS chapter 657, which pertains to unemployment insurance. ORS 657.015 defines "employee" as any person "employed for remuneration or under any contract of hire, written or oral, express or implied, by an employer subject to this chapter in an employment subject to this chapter." (Emphasis added.) "Employer," in turn, is defined as "any employing unit which employs one or more individuals in an employment subject to this chapter." ORS
ORS 657.040(1) provides:
ORS 657.043 through 657.094 contain numerous exceptions, indicating that "employment" for purposes of ORS chapter 657 does not include, for example, certain agricultural employment, some types of domestic and child care work, product demonstrators, officials at sporting events, and numerous other things — among them, the "for-hire carrier" provision at issue in this case, ORS 657.047.
ORS 657.155(1)(f) makes an "unemployed individual" eligible to receive unemployment benefits if "[t]he individual is qualified for benefits under ORS 657.150." ORS 657.150 indicates that benefits are to be determined by "taking into account the individual's work in subject employment in the base year," and it specifies a minimum amount of wages earned or hours worked in "subject employment" and a formula for determining base year wages. (Emphasis added.) Under ORS 657.176, an individual may be disqualified from the receipt of benefits if the department determines that the individual was discharged or suspended for misconduct, voluntarily left work without good cause, or for various other reasons.
According to employer, those provisions, when construed together, indicate that an individual may be entitled to receive unemployment compensation if he or she was an "employee" as defined in ORS 657.015, that is, the individual must be employed "by an employer subject to this chapter in an employment subject to this chapter." Employer reasons that, because ORS 657.047(1)(b) exempts from the definition of "employment" transportation performed by a person such as claimant who leases his equipment to a for-hire carrier and personally operates it, claimant was not engaged in "employment subject to this chapter" as required by ORS 657.015. It follows, employer urges, that, regardless of whether ORS 657.176 disqualifies claimant from receiving benefits, he is ineligible to receive benefits because he is not otherwise qualified to receive them.
The department asserts that EAB correctly concluded that a determination of whether an individual is disqualified from receiving benefits under ORS 657.176 has nothing to do with whether that person is an "employee" under ORS 657.015, was engaged in subject "employment" under ORS 657.030, or fell within one of the numerous exceptions listed in ORS 657.040 to 657.094. The department notes that both the definitions of "employee" and "employer" apply to the chapter "unless the context requires otherwise," ORS 657.015(1); ORS 657.025(1), and that the context here indicates that an individual may not be denied unemployment benefits under ORS 657.176 based on the application of those definitions. In particular, the department notes that ORS 657.176 does not refer to "employees" who have left "employment" but, rather, requires the department to determine "whether an individual is subject to a disqualification as a result of a separation, termination, leaving, resignation, or disciplinary suspension from work." (Emphasis added.) Consistently with its understanding that the provision in ORS 657.176 for disqualification from employment benefits is not limited by the statutory definitions of "employer" and "employee," the department has promulgated OAR 471-030-0038(1)(a). That rule provides, as noted above, that, for purposes of ORS 657.176, an "employment relationship exists even in circumstances where the work performed is not subject employment as set forth in ORS Chapter 657," unless the claimant qualifies as an independent contractor.
The problem that we perceive with the department's position is that it treats ORS 657.176 as the only statute that governs the determination whether a person is eligible to receive unemployment benefits. Viewing the statutory framework as a whole, we reach a
Thus, contrary to the department's position, a determination of eligibility for benefits cannot be made solely by reference to whether an "individual" has performed "work" for purposes of ORS 657.176; such a determination also requires consideration of the "individual's work in subject employment." ORS 657.150 (emphasis added). That, in turn, means that the definition of employment in ORS 657.030, as well as the exclusions from that definition in ORS 657.040 to 657.094, must be considered in determining whether the individual is eligible for benefits.
Our conclusion comports with our previous decision in Employment Div. v. Peddicord, 125 Or.App. 113, 865 P.2d 384 (1993). In Peddicord, the issue was whether the claimant was ineligible to collect unemployment benefits because he had earned insufficient wages during the base year. The claimant had earned more than $900 in employment with an employer, and the question was whether an additional $105 that he had received as a building inspector from LFC Nationwide could be included to "satisfy the $1,000 minimum [base year wages] necessary to qualify for benefits." Id. at 115, 865 P.2d 384. EAB included the $105, noting that, with respect to the services that the claimant had provided to LFC, he was not an "independent contractor" for purposes of ORS 657.040; EAB did not address whether LFC Nationwide was an "employer." Id. at 116, 865 P.2d 384. We disagreed with that approach:
Id.
Although the precise issue in Peddicord differed from the one here, the rationale of our decision there applies equally to this case. In order to determine whether a claimant is eligible to receive unemployment benefits, it is necessary to determine whether the claimant engaged in subject "employment" for an "employer," as those terms are defined in ORS chapter 657. In Peddicord, the dispositive issue was whether LFC Nationwide was an "employer." Here, in contrast, the parties implicitly acknowledge that employer is, in fact, an employer for purposes of ORS chapter 657, and employer asserts that it qualifies as a "for-hire carrier" under ORS 825.005(7). Thus, the dispositive issue here is whether claimant's services for employer are excluded from "employment" under ORS 657.047(1)(b) because he performed those services for a "for-hire carrier" and he is a "person that leases [his] equipment to a for-hire carrier and * * * personally operates, furnishes and maintains the equipment[.]" That question must be resolved in order to determine whether claimant is qualified for benefits under ORS 657.155 and ORS 657.150. ORS 657.176, by contrast, concerns only whether a claimant is disqualified from receiving benefits due to discharge for misconduct, or for having left work, for example, without good cause.
EAB's methodology in this case is inconsistent with the foregoing understanding about how the statutes work together. In its initial decision, EAB stated:
On reconsideration, EAB readopted its earlier decision and further explained that it interpreted the provision in OAR 471-030-0038(1)(a) that an "employment relationship exists even in circumstances where the work performed is not subject employment as set forth in ORS chapter 657" to mean that "even a separation from non-subject employment can be disqualifying." EAB also opined, in the first instance on reconsideration, that employer's contention that ORS 657.047 was at issue in this case was
In response to the order on reconsideration, employer supplemented the record with documentation that it had, in fact, made such a challenge. The department thereafter asserted that the only issue in this case is whether claimant was disqualified for benefits under ORS 657.176, and not "whether claimant had a valid claim for benefits under ORS 657.266(1)." It is not clear whether the department meant to posit that, as a matter of law, employer is precluded from raising the issue concerning claimant's "qualification" (as opposed to "disqualification") for benefits because the type of hearing held in this case simply does not apply to that issue, or whether the department meant to assert that, as a matter of procedural history, that issue was not adequately raised in this proceeding.
To the extent that the department meant to assert that the issue was not raised, we disagree. The department's initial determination in this case indicated not only that claimant voluntarily left work for good cause — an issue clearly covered by ORS 657.176 — but it also indicated that claimant was "employed" by employer on certain dates, and it concluded that "benefits are allowed." That is, the initial determination encompassed not only a determination that claimant was not "disqualified" under ORS 657.176, but also that he had been "employed" by employer and was "qualified" to receive benefits. Employer sought review of that decision, raising only two issues: whether claimant's services for employer were excluded from the definition of "employment" under the "for-hire carrier" provision ORS 657.047(1), and whether claimant was an independent contractor so that his services for employer were excluded from the definition of employment under ORS 657.040. Employer did not challenge the determination under ORS 657.176 concerning whether claimant had "good cause" for voluntarily leaving work.
Additionally, evidence was adduced at the hearing that the department not only had
Thus, we are left to understand that the department meant to assert, as a matter of law, that the application of ORS 657.047 cannot be raised in this type of hearing but, instead, must be litigated in a different proceeding. The department cites no authority for that proposition, and our review of the pertinent statutes leads us to conclude otherwise. Under ORS 657.266, the department must, promptly on receipt of a claim for benefits, "determine the total amount of wages paid to the claimant during the base year and whether or not such amount is sufficient to qualify the claimant for benefits," and give the employer notice of potential charges to the employer's account. Under ORS 657.267, the department must "make a decision to allow or deny the claim." That statute provides, in part, that, "if the claim is denied, the written notice must include a statement of the reasons for denial, and if the claim is denied under any provision of ORS 657.176," the notice must include other specified materials. ORS 657.267(1). That is, ORS 657.267 contemplates that benefits may be denied under ORS 657.176 or for other reasons. ORS 657.270(1) indicates that, "[w]hen a request for hearing upon the claim has been filed, as provided in ORS 657.266 to 657.269," a hearing must be held. (Emphasis added.) ORS 657.270(4) provides:
(Emphasis added.)
Those statutes do not require the type of bifurcated proceedings that the department appears to envision. That is, ORS 657.270 did not require employer to request a hearing with respect to an allowance of benefits pursuant to ORS 657.267 and then request a separate hearing to challenge the notice of potential charges that it received pursuant to ORS 657.266, and litigate the identical issue in two proceedings.
In sum, EAB reasoned in this proceeding that (1) claimant's entitlement to benefits could be determined solely by reference to ORS 657.176 and OAR 471-030-0038(1)(a), and (2) employer was precluded from raising the issue of whether claimant's services to it were excluded from the definition of "employment" under ORS 657.047 and, thus, claimant was ineligible for benefits. EAB was incorrect in both respects. As explained above, ORS 657.176 and OAR 471-030-0038(1)(a) pertain to disqualification from benefits in some circumstances.
Reversed and remanded for reconsideration.
