All four criteria must be satisfied for the test to be met, and the alleged employer bears the burden of proof. Broadway Cab LLC v. Employment Dept. , 358 Or. 431, 443, 364 P.3d 338 (2015). In this case, the dispute over whether the IBOs are independent contractors boils down to the requirement in subsection (2)(b): whether ACN proved that its IBOs were "customarily engaged in an independently established business."
In reviewing an ALJ's final order, we review legal conclusions for errors of law and factual determinations for substantial evidence. ORS 183.482(8)(a) and (c); Broadway Cab LLC v. Employment Dept., 358 Or 431, 437-38, 364 P3d 338 (2015). As ACN does not argue that the ALJ's findings were unsupported by substantial evidence, we begin our review by reciting the following facts consistent with the ALJ's findings, and, as needed, consider other uncontested facts to determine whether the ALJ committed errors of law.
Although the definitions in that chapter are somewhat circular, generally, an employer must pay unemployment insurance taxes on wages paid to employees who are engaged in employment. See Broadway Cab LLC v. Employment Dept. , 358 Or. 431, 433, 364 P.3d 338 (2015) (discussing statutorily defined terms). Often, litigation under ORS chapter 657 turns on whether a worker is an employee or an independent contractor, for whom no unemployment taxes are owed.
In reviewing an ALJ's final order, we review legal conclusions for errors of law and factual determinations for substantial evidence. ORS 183.482(8)(a) and (c) ; Broadway Cab LLC v. Employment Dept., 358 Or. 431, 437-38, 364 P.3d 338 (2015). The ALJ made extensive findings of fact, which are largely undisputed by the parties.
DEQ asserts that “a review of this court's administrative law cases supports the conclusion that five years is sufficient time to fully litigate such a case” as this one. In support, the department cites Broadway Cab LLC v. Employment Dept. , 358 Or. 431, 364 P.3d 338 (2015) ; OR–OSHA v. CBI Services, Inc. , 356 Or. 577, 341 P.3d 701 (2014) ; and Noble v. Dept. of Fish and Wildlife , 355 Or. 435, 326 P.3d 589 (2014), each of which took approximately four years to fully litigate a challenge to an administrative agency decision.None of those cases involved a challenge to an order in other than a contested case, however.
ORS 419B.116(5)(c) is plainly written in the conjunctive and unambiguously requires intervenors to prove each of the four subparagraphs (A) to (D). See Broadway Cab LLC v. Employment Dept. , 358 Or. 431, 443, 364 P.3d 338 (2015) (explaining that because the elements of the disputed statute were conjunctive, the petitioner had the burden to establish each of those criteria); National Maintenance Contractors v. Employment Dept. , 288 Or App 347, 352, 406 P.3d 133 (2017), rev. den. , 362 Or. 508, 424 P.3d 722 (2018) (same). That is, a party seeking intervention must prove by a preponderance of the evidence each of those four statutory requirements; the four requirements cannot be balanced against each other, such that more weight on the best interests of the child could make up for an unpersuasive showing on "the existing parties cannot adequately present the case." Turning to appellants second statutory argument, we understand appellants to take the position that a determination of "adequacy" under ORS 419B.116(5)(c)(D) involves a subjective determination about which party can make the better presentation of the best interests of the child.
We review an agency's legal conclusions—including its determination as to which standard of proof applies—for legal errors. See Broadway Cab LLC v. Employment Dept. , 358 Or. 431, 437-38, 364 P.3d 338 (2015). Nearly 50 years ago, we stated in Bernard , a dental license revocation case: "It is elementary that fraud or misrepresentation is never presumed and that even in a civil action the burden is on the person claiming it to establish its existence by clear, satisfactory and convincing evidence."
”The statute's requirements are conjunctive, meaning that all three criteria must be satisfied. Broadway Cab LLC v. Employment Dept. , 358 Or. 431, 443, 364 P.3d 338 (2015) ; Avanti Press v. Employment Dept. Tax Section , 248 Or.App. 450, 456, 274 P.3d 190 (2012). As noted, the ALJ determined that the owner-operators were not independent contractors and upheld the department's assessments.