Montana Code 19-20-307. Establishing independent contractor status
19-20-307. (Effective July 1, 2024) Establishing independent contractor status. (1) (a) An individual working in a position reportable to the retirement system is presumed to be a common law employee of the employer and not an independent contractor.
Terms Used In Montana Code 19-20-307
- Common law: The legal system that originated in England and is now in use in the United States. It is based on judicial decisions rather than legislative action.
- Employer: means :
(a)the state of Montana;
(b)a public school district, as provided in 20-6-101 and 20-6-701;
(c)the office of public instruction;
(d)the board of public education;
(e)an education cooperative;
(f)the Montana school for the deaf and blind, as described in 20-8-101;
(g)the Montana youth challenge program, as defined in 10-1-101;
(h)a correctional facility, as defined in 41-5-103;
(i)the Montana university system;
(j)a community college; or
(k)any other agency, political subdivision, or instrumentality of the state that employs a person who is designated a member of the retirement system pursuant to 19-20-302. See Montana Code 19-20-101
- Individual: means a human being. See Montana Code 19-20-101
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Member: means a person who has an individual account in the annuity savings account. See Montana Code 19-20-101
- Position reportable to the retirement system: means a position in which an individual performs duties that would entitle the person to active membership in the retirement system under the provisions of 19-20-302. See Montana Code 19-20-101
- retiree: means a person who is considered in retired member status under the provisions of 19-20-810. See Montana Code 19-20-101
- Service: means the performance of duties that would entitle the person to active membership in the retirement system under the provisions of 19-20-302. See Montana Code 19-20-101
(b)Until the status of an individual working in a position reportable to the retirement system is conclusively established to be that of an independent contractor, the individual must be reported to the retirement system as an active member or working retiree, as appropriate, not as an independent contractor.
(2)(a) An employer who asserts that an individual working in a position reportable to the retirement system is an independent contractor shall conclusively establish that the individual is an independent contractor and not a common law employee of the employer by:
(i)a written determination prepared by an attorney, an employment or human resources professional, or another individual who is qualified to make worker status determinations;
(ii)an order of a court of competent jurisdiction; or
(iii)internal revenue service form SS-8.
(b)(i) An individual making the determination must provide with their written determination their full name, professional designations, business name, business address, and business telephone number.
(ii)The written determination or order must comprehensively address the internal revenue service criteria related to the facts and circumstances of the specific worker in the specific position at issue and must provide a reasoned discussion of each criterion and its application to the specific facts and circumstances of the work and the position, not merely provide a conclusory statement of finding.
(iii)An independent contractor exemption certificate by the Montana department of labor and industry must meet all of the requirements of this subsection (2).
(3)Any costs incurred to conclusively establish the independent contractor status of an individual working in a position reportable to the retirement system, as specified in this section, must be the sole responsibility of the employer.