October 29, 2015
by Sarah Ewing

Applicant Injured on way to Orientation is not a Subject Worker

Ewing, Sarah_160x222In a recent Oregon Workers’ Compensation Board case, the Board found an applicant who was injured on her way to orientation on the employer’s premises was not a covered worker.  In Mary K. Meyers, 67 Van Natta 1725 (2015), claimant applied for a telemarketing position, completed a written application and an interview.  The employer asked her to come in for an orientation and paid training.  When she was entering the employer’s offices, a worker exiting the office hit claimant with the door, causing her to fall and fracture her hip.

SAIF denied the claim and claimant appealed.  The ALJ agreed with SAIF, determining claimant was not a subject worker because, at the time of her injury, she only had the possibility of future employment, rather than an agreement with the employer to provide services for compensation.  Claimant appealed.

The employer testified it “wasn’t a done deal” until an applicant reviewed and signed the orientation paperwork.  Only then would the person move on to paid training.  The claimant argued the employer expected her to complete I-9 and W-2 forms and this constituted an acknowledgement by the employer that she was considered “hired.”

The Board agreed with the ALJ and furthered the analysis by looking at whether claimant and the employer had an implied agreement under the ORS 656.005(30) definition of “worker.”  This was not an implied agreement.  The employer testified claimant’s position was contingent on her completing the pre-employment requirements of the orientation process.  Claimant had not worked, had not received compensation, and had not filled out the orientation paperwork.  Because claimant came to the orientation to further the possibility of employment, rather than acting at the employer’s direction, claimant was not a worker and no implied contract had been formed.  A link to the case is here.

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