McClusky v. City of North Bend

Under ORS 659A.001(4)(a), it is the one who reserves the right to control who is the employer, and not the agent acting on behalf of the person or entity who reserves the right to control.

Appellant appealed a summary judgment dismissal on a claim for unlawful employment discrimination and unlawful retaliation. On appeal, Appellant assigned error to the trial court’s grant of summary of judgment to the Respondent based on the issue of whether the Respondent was an “employer” of the Appellant. Respondent argued that the factors for consideration in assessing the right to control cannot point to more than one employer at the same time because an employer can control their employees through an agent, and an agent is not an employer who could be held liable under ORS chapter 659A. Under ORS 659A.001(4)(a), it is the one who reserves the right to control who is the employer, and not the agent acting on behalf of the person or entity who reserves the right to control. The Court held that because Respondent reserved the right to control the Appellant and was their employer for purposes under ORS chapter 659A, the trial court erred to grant summary judgment to Respondent and to deny Appellant’s cross-motion. Reversed and remanded.