This rule has been repealed.

This rule has been transferred.

This rule has been transferred.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been transferred.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(2) "Handicapped trainee" or "trainee" means an individual whose earning capacity is impaired by age or physical or mental deficiency or injury, and who is receiving or is scheduled to receive on-the-job training in industry under any vocational rehabilitation program administered by the Veterans Administration or an authorized vocational rehabilitation agency operation pursuant to the Vocational Rehabilitation Act.

(3) "State Agency" shall mean the "Department of Social and Rehabilitation Services.

(4) "Institutions" means that state institution engaged in the custody and caring for of the worker or trainee.

(5) State institution is an institution operated by the State of Montana.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been transferred.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been transferred.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(1) "Administrator" means the administrator of the Employment Standards Division, Montana Department of Labor and Industry. The commissioner of Labor and Industry has delegated to the administrator the functions vested in the commissioner.

(2) "Amusement or recreational area" means a location that is characterized as being, or immediately adjacent to, a destination location such as a national park, ski area, or vacation resort area.

(3) "Amusement or recreational establishment" means businesses with locations at an amusement or recreational area, such as the concessionaires at amusement parks, resorts, and ski areas. The term does not include food services or hospitality establishments located in the area, other than direct concessionaires of the primary amusement or recreational area operator.

(4) "Direct and close supervision" means a qualified and experienced person supervising the student-employee and continually available when the student-employee is working to supervise, give direction, and check the work of the student-employee.

(5) "Division" means the Employment Standards Division of the Montana Department of Labor and Industry.

(6) "Establishment" refers to a distinct physical place of business rather than to an entire business or enterprise which may include several separate places of business.

(7) "Independent contractor" means an individual working under an independent contractor exemption certificate provided for in 39-71-417, MCA.

(8) "Nonprofit" means a nonprofit corporation as defined in Title 35, chapter 2, MCA.

(9) "Organized camp" means a camp which:

(a) provides a sustained experience with a creative recreational and educational opportunity in a group living setting in the outdoors; and

(b) uses trained leadership and the resources of the natural surroundings to contribute to each camper's mental, physical, social, and spiritual growth.

(10) "Qualified and experienced person" means a journey-worker level employee or equivalent highly skilled employee, in the same occupation as the student-employee and who supervises the student-employee.

(11) "Religious or educational conference center" is a meeting center providing for religious, educational and leadership growth experiences for youth or adults.

(12) "Safety instruction" means a minimum of 10 hours of offsite safety instruction, such as an OSHA 10 class, in addition to onsite safety instruction directly related to the occupation of the student-employee.

(13) "Seasonal" means seven months or less.

(14) "Student" means an individual who is attending an accredited school, college or university and is employed on a part-time basis.

(1) For the purposes of wage and hour laws, a person with a disability receiving services of a personal assistant or an immediately involved representative of the disabled person, such as a parent or guardian, is not the employer of the personal assistant despite controlling the selection, management, and supervision of the personal assistant if:

(a) the personal assistant is providing services to the disabled person pursuant to 53-6-145, MCA, and rules adopted by the department of public health and human services implementing that statute; and

(b) the personal assistant is the employee of another person or entity that exercises an employer's control over the personal assistant, including employee discipline and termination.

(1) To ease disparity between state and federal requirements, and make it easier for employers and employees to understand the wage and hour provisions applicable to bona-fide executive, administrative, professional employees, and persons employed in an outside sales capacity, the commissioner finds that it is appropriate that Montana harmonize its treatment of those employees under state wage and hour laws with the federal treatment of those same classes of persons under the Fair Labor Standards Act, 29 USC 201, et seq. The department adopts and incorporates by reference the following sections of the Code of Federal Regulations, October 27, 2023, edition: 

(a) 29 CFR part 541, subparts A, B, C, D, F, G, and H.

(2) Copies of the CFR regulations incorporated by reference are available at https://erd.dli.mt.gov/labor-standards/administrative-rules.

(1)  To ease disparity between state and federal requirements and clarify the practices and policies that may guide the department's administration and enforcement of Montana wage and hour law, the department adopts and incorporates by reference the following sections of the Code of Federal Regulations, October 27, 2023, edition. These provisions provide examples describing the most frequently occurring situations and questions regarding hours worked in wage and hour regulation. 

(a) 29 CFR 785.5, 785,6, and 785.8; and 

(b) 29 CFR 785.11 through 785.48, except not adopt 29 CFR 785.39, which is replaced with the following:

(i) Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly worktime when it cuts across the employee's workday. The employee is simply substituting travel for other duties. The time is not only hours worked on regular working days during normal working hours but also during the corresponding hours on nonworking days. Thus, if an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday the travel time during these hours is worktime on Saturday and Sundays as well as on the other days. Regular meal period time is not counted.

(2) CFR regulations incorporated by reference are available at https://erd.dli.mt.gov/labor-standards/administrative-rules.

(1) To ease disparity between state and federal requirements and clarify the practices and policies that may guide the department's administration and enforcement of Montana wage and hour law, the department adopts and incorporates by reference the following sections of the Code of Federal Regulations, October 27, 2023, edition. These provisions provide examples describing the most frequently occurring situations and questions regarding wage payments in wage and hour regulation. 

(a) 29 CFR 531.2; 

(b) 29 CFR 531.3;

(c) 29 CFR 531.6(a) and (c);

(d) not adopt 29 CFR 531.6(b), which is replaced with the following:

(i) A collective bargaining agreement shall be deemed to be "bona fide" when it is made with a labor organization certified by the National Labor Relations Board, or which is the certified representative of the employees under the provisions of the National Labor Relations Act, as amended, or the Railway Labor Act, as amended, or the Montana Collective Bargaining for Public Employees Act, or the Montana Collective Bargaining for Nurses Act.

(e) 29 CFR 531.26, 29-32, 33(b), and 35;

(f) 29 CFR 547.0 through 547.2;

(g) 29 CFR 549.0 through 549.3; and

(h) 29 CFR 776.5 and 776.6.

(2) CFR regulations incorporated by reference are available at https://erd.dli.mt.gov/labor-standards/administrative-rules.

(1) To ease disparity between state and federal requirements and clarify the practices and policies that may guide the department's administration and enforcement of Montana wage and hour law, the department adopts and incorporates by reference the following sections of the Code of Federal Regulations, October 27, 2023, edition. These provisions provide examples describing the most frequently occurring situations and questions regarding overtime compensation in wage and hour regulation. 

(a) 29 CFR 548;  

(b) 29 CFR 778.5;

(c) 29 CFR 778.101 through 106;

(d) 29 CFR 778.108 through 121;

(e) 29 CFR 778.200 through 214;

(f) 29 CFR 778.215 through 217(c)(1), and 217(d);

(g) 29 CFR 778.218 through 225;

(h) 29 CFR 778.301 through 315;

(i) 29 CFR 778.318 through 333;

(j) 29 CFR 778.400 through 421;

(k) 29 CFR 778.500 through 503; and

(l) 29 CFR 778.600 and 601.

(2) CFR regulations incorporated by reference are available at https://erd.dli.mt.gov/labor-standards/administrative-rules.

(1) To ease disparity between state and federal requirements and clarify the practices and policies that may guide the department's administration and enforcement of Montana wage and hour law, the department adopts and incorporates by reference the following sections of the Code of Federal Regulations, October 27, 2023, edition. These provisions provide examples describing the most frequently occurring situations and questions regarding employer record keeping in wage and hour regulation. 

(a) 29 CFR 516.1 through 516.8, except not adopt 29 CFR 516.6, which is replaced with the following: 

(i) Supplementary basic records: Each employer required to maintain records under this part shall preserve for a period of at least three years:

(A) Basic employment and earning records. From the date of last entry, all basic time and earnings cards or sheets on which are entered the daily starting and stopping time of individual employees, or of separate work forces, or the amounts of work accomplished by individual employees on a daily, weekly, or pay period basis (for example, units produced) when those amounts determine in whole or in part the pay period earning or wages of those employees; and

(B) Wage rate tables. From their last effective date, all tables or schedules of the employer which provide the piece rates or other rates used in computing straight-time earnings, wages, or salary, or overtime computation;

(ii) Order, shipping, and billing records. From the last date of entry, the originals or true copies of all customer orders or invoices received, incoming or outgoing shipping or delivery records, as well as all bills of lading and all billings to customers (not including individual sales slips, cash register tapes or the like) which the employer retains in the usual course of business operations;

(iii) Records of additions to or deductions from wages paid: Each employer who makes additions to or deductions from wages paid shall preserve for at least three years from the date of last entry:

(A) Records of individual employee accounts for total additions to or deductions from wages paid each pay period; and

(B) All records used by the employer in determining the original cost, operating and maintenance cost and depreciation and interest charges, if such costs and charges are involved in the additions to or deductions from wages paid.

(b) 29 CFR 516.25 through 516.27; and

(c) not adopt 29 CFR 516.30, which is replaced with the following:

(i) Learners, apprentices, students, student-employees, or workers with disabilities employed under special certificates as provided in 39-3-406, MCA.

(A) Items required. With respect to persons employed as learners, apprentices, student-employees, messengers, or full-time students employed outside of their school hours in any retail or service establishment or workers with disabilities at special minimum hourly rates under special certificates pursuant to 39-3-406, MCA, employers must maintain and preserve records containing the same information and data required with respect to other employees employed in the same occupations.

(B) Segregation or designation on payroll and use of identifying symbol. Employers must also segregate on payroll or pay records the names and required information and data with respect to those employed under Special Certificates. A symbol or letter before each name must indicate the person is a "learner," "apprentice," "student-employee," "messenger," "student," or "worker with disabilities" employed under a Special Certificate.

(2) CFR regulations incorporated by reference are available at https://erd.dli.mt.gov/labor-standards/administrative-rules.

(1) A tip is a sum presented by a customer as a gift or gratuity in recognition of some service performed. It is to be distinguished from payment of a charge, if any, made for the service. Whether a tip is to be given, and its amount, are matters determined solely by the customer, and generally the customer has the right to determine who shall be the recipient of the gratuity.

(a) In addition to cash sums presented by customers which an employee keeps, tips received by an employee include, amounts paid by bank check or other negotiable instrument payable at par and amounts transferred by the employer to the employee pursuant to directions from credit customers who designate amounts to be added to their bills as tips.

(b) Tips are the employees' to keep and may not be used by the employer to make up any part of the employees' wage.

(2) A service charge includes any arbitrary fixed charge added to the customer's bill by an employer in lieu of a tip, no matter what it is labelled (i.e., service charge, setup fee, house fee, service fee, labor charge, etc.).

(a) Absent a valid tip pool agreement, a service charge must be distributed equally among nonmanagement employees involved in food preparation or service, or a related service. Equal distribution must be among those workers who performed services during the particular shift or event where the service charge was earned and must be distributed on a pro rata basis.

(b) A valid tip pool agreement may be created by management for the distribution of a service charge. The tip pool agreement is valid for the purpose of distribution of service charges so long as it distributes all service charge monies to nonmanagement employees.

(c) A service charge may not be utilized to make up any part of an employees' wage.

(3) Where tips or service charges are charged on a credit card and the employer must pay the credit card company a percentage on each sale, the employer may pay the employee the tip, less that percentage. The employer must keep records of all such deductions.

(1) A single individual may stand in the relation of an employee to two or more employers at the same time under the Montana Minimum Wage and Overtime Compensation Act, since there is nothing in the law which prevents an individual employed by one employer from also entering into an employment relationship with a different employer. A determination of whether the employment by the employers is to be considered joint employment or separate and distinct employments for purposes of the law depends upon all the facts in the particular case. If all the relevant facts establish that two or more employers are acting entirely independently of each other and are completely disassociated with respect to the employment of a particular employee, who during the same workweek performs work for more than one employer, each employer may disregard all work performed by the employee for the other employer (or employers) in determining his own responsibilities under the law. On the other hand, if the facts establish that the employee is employed jointly by two or more employers, i.e., that employment by one employer is not completely disassociated from employment by the other employer(s) , all of the employee's work for all of the joint employers during the workweek is considered as one employment for purposes of the law. In this event, all joint employers are responsible, both individually and jointly, for compliance with all of the applicable provisions of the law, including the overtime provisions, with respect to the entire employment for the particular workweek. In discharging the joint obligation each employer may, of course, take credit toward minimum wage and overtime requirements for all payments made to the employee by the other joint employer or employers.

(2) Where the employee performs work which simultaneously benefits two or more employers, or works for two or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist in situations such as:

(a) Where there is an arrangement between the employers to share the employee's services, as, for example, to interchange employees, or,

(b) Where one employer is acting directly or indirectly in the interest of the other employer (or other employers) in relation to the employee, or,

(c) Where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the

other employer.

As used in this subchapter, the following definitions apply, unless the context of the rule clearly indicates otherwise:

(1) "Adverse decision" means a decision by the department that is not favorable to the party requesting review.

(2) "Claim" or "complaint" means:

(a) a complaint alleging non-compliance with a statute or administrative rule under the jurisdiction of the department;

(b) a request for an audit of an employer's payroll records; or

(c) a field investigation by the department of an employer's payroll.

(3) "Day" means a calendar day.

(4) "Determination" means a decision by the department on the merits of a claim, providing the amount of wages and penalty owed by an employer to an employee.

(5) "Hearing" means a contested case per Title 2, chapter 4, part 6, MCA.

(6) "Mediation" is the process described by 26-1-813, MCA.

(7) "Penalty" means the statutory penalty provided by 18-2-407 and 39-3-206, MCA, assessed by the department against the employer and paid to the employee in addition to any wages owed.

(8) "Redetermination" means an informal review by the department, based on new or additional information supplied by a party receiving an adverse determination.

(9) "Send" or "sent" means the department's method of providing an official decision, determination, redetermination, or other notification to an affected person, party, or entity, and includes but is not limited to regular, certified, or electronic mail, or personal service.

(1) Time periods for acts required by these rules will exclude the first day and include the last day, unless the last day falls on a Saturday, Sunday, or legal holiday. In that event, the period runs until the end of the next regular workday, which is not a Saturday, Sunday, or legal holiday. 

(2) All claims, complaints, requests, responses, and documents required or allowed to be submitted to the department: 

(a) may be submitted in person, by regular mail, electronically (e-mail), by facsimile (fax), or via online portal when available; and

(b) are considered filed with the department on the date the department receives them.

(3) Submissions received after 11:59 p.m. mountain time will have a filing date of the next regular workday.

(4) Parties must ensure that submissions are timely received by the department. Failure, malfunction, or unavailability of electronic equipment does not excuse a party from the requirements of timely filing.

(5) Only one copy of an e-mail or fax submission must be filed even if multiple copies otherwise would be required.

(1) The department will review complaints, claims, or other information received to enforce Montana's wage laws. 

(2) The department may conduct investigations without filed complaints, including spot-check inspections of payroll and personnel records, and interviews to ensure compliance with wage laws.   

(3) The department will review prevailing wage complaints to determine if the work is subject to federal prevailing wage laws, and if so, will advise the complainant to contact the U.S. Department of Labor.

(1) Following the expiration of an employer's response time, the department will issue a determination of the wages and penalty owed, if any. 

(2) The determination will incorporate any decision of the department's independent contractor central unit regarding the employment status. 

(3) The department will send a copy of the determination to each party or attorneys of record.

(4) Failure of an employer to timely respond to a claim or complaint may result in the entry of a determination adverse to the employer.

(5) A party receiving an adverse determination may request either a redetermination or a hearing.

(1) A party alleging untimely or non-receipt of notice of a claim, determination, or hearing has the burden of proving the party should be granted relief. The party seeking relief must present a preponderance of evidence to rebut the statutory presumption in 26-1-602, MCA, that a letter duly directed and mailed was received in the regular course of the mail.           

(2) Once a judgment is issued by a district court concerning a decision, any request for relief must be directed to the district court by a party (not the department on behalf of a party) per the Rules of Civil Procedure and be in the form required by the district court.

(1) The department will notify all involved parties of a wage claim or complaint. 

(2) Employers must respond and provide any requested information by the date specified in the notice.  

(a) If requested prior to the response deadline, the department may grant additional response time for good cause shown.

(b) Failure to timely respond may result in a decision adverse to the employer.

(3) If a response alleges the wage claimant is an independent contractor, the working relationship will be analyzed.

(4) If a complaining party fails to provide requested information to the department within specified time frames, the department may dismiss the complaint.

(1) A party receiving an adverse decision may request a redetermination. 

(a) Redeterminations are limited to issues other than employment status.  

(b) Parties disagreeing with an employment status decision must raise the issue in the request for redetermination to preserve the issue for a hearing per ARM 24.16.4022.

(2) Redetermination requests must be:

(a) received within 15 days of the date the decision is sent; and

(b) include new or additional information relevant to the disputed issue(s) for the department to consider.

(3) The department will issue a redetermination and send a copy to the parties.

(4) The department will only issue one redetermination for each party receiving an adverse decision.

(1) A party receiving an adverse decision may request a contested case hearing within 15 days from the date the decision or redetermination is sent. 

(2) Hearing requests must include the names and contact information for the requesting and opposing parties.

(3) For timely, complete requests, the department will first conduct mediation as provided by ARM 24.16.4025. If mediation does not fully resolve the dispute, any unresolved issues will be resolved through contested case proceedings in accordance with Title 2, chapter 4, part 6, MCA.

(1) Mediations are conducted in accordance with the provisions of 26-1-813, MCA. 

(2) The department shall appoint a mediator and notify the parties of the appointment. 

(3) The mediator shall contact the parties to establish the mediation procedures and set a time for the mediation.

(4) Mediation must be completed within 45 days from the date the notice of mediator appointment is sent unless all parties and the mediator agree to an extension, or the case is withdrawn.

(5) Following mediation, the mediator shall issue a report as follows:

(a) If mediation resolved the dispute, the report will provide the agreement terms for approval by the parties. 

(b) The mediator shall provide appropriate settlement notice, signed by the parties, if such notice is required to dispose of remaining issues.

(c) If mediation does not fully resolve the dispute, the report will provide the parties the opportunity to request a contested case hearing for any unresolved issues in accordance with Title 2, chapter 4, part 6, MCA. Requests for hearing must be received by the department within ten days from the date the mediator's report is sent.

(d) The mediator may issue a noncooperation report when a party refuses to participate or otherwise comply with the mediation.

(6) As permitted by 2-4-603, MCA, mediation may also be requested by parties to a case at any later time prior to full and final judgment.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

As used in this subchapter, the following definitions apply, unless the context of the rule clearly indicates otherwise:

(1) "Adverse decision" means a decision by the department that is not favorable to the party requesting review.

(2) "Claim" or "complaint" means:

(a) a complaint alleging non-compliance with a statute or administrative rule under the jurisdiction of the department;

(b) a request for an audit of an employer's payroll records; or

(c) a field investigation by the department of an employer's payroll.

(3) "Commissioner" has the same meaning as provided by 2-15-1701, MCA.

(4) "Day" means a calendar day.

(5) "Department" has the same meaning as provided by 2-15-1701, MCA.

(6) "Determination" means a decision by the department on the merits of a claim, including the wages and penalty owed by the employer to the employee.

(7) "Employ" has the same meaning as provided by 39-3-201, MCA.

(8) "Employee" has the same meaning as provided by 39-3-201, MCA.

(9) "Employer" has the same meaning as provided by 39-3-201, MCA.

(10) "Hearing" means a contested case per Title 2, chapter 4, part 6, MCA.

(11) "Mediation" is the process described by 26-1-813, MCA.

(12) "Penalty" means the statutory penalty provided by 39-3-206, MCA, assessed by the department against the employer and paid to the employee in addition to any wages owed.

(13) "Redetermination" means an informal review by the department, based on new or additional information supplied by a party receiving an adverse determination.

(14) "Wages" has the same meaning as provided by 39-3-201, MCA.

(2) For the purpose of construing 39-3-205 , MCA, any reason that an employer gives when firing an employee constitutes firing the employee "for cause."

(3) For the purpose of construing 39-3-205 , MCA, payment of wages is considered to be "immediate" if the wages are paid to the employee by the earlier of the close of business or four hours from the time the employee is notified that the employee has been discharged. Payment of wages is also considered to be "immediate" if the employer mails to the employee a check or money order for the wages, and the envelope containing the payment is postmarked the same day as the discharge. If payment is made by mail, however, and there is a dispute over when the payment was made, the employer bears the burden of proof to show that payment was timely mailed. Such proof may include, but is not limited to, a receipt issued by the United States postal service showing that the envelope addressed to the employee was mailed on that date.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(1) Only disputes regarding the employment status of an individual for wage claim purposes, including whether that individual is acting as an independent contractor, shall be forwarded by the department to the Independent Contractor Central Unit (ICCU) for a decision pursuant to ARM Title 24, chapter 35, subchapters 2 and 3.

(2) To be considered an independent contractor for wage claim purposes, the individual must hold and be working under an independent contractor exemption certificate pursuant to 39-71-417, MCA, where such is required. When an individual is not required to hold an independent contractor exemption certificate, the test for determining whether an individual is acting as an independent contractor for wage claim purposes is that found at ARM 24.35.202.

(3) An individual required to hold and work under an independent contractor exemption certificate pursuant to 39-71-417, MCA, who does not is an employee for wage claim purposes.

(4) An independent contractor is not an employee, as defined by 39-3-201 and 39-3-402, MCA, and, therefore, is not subject to wage and hour provisions.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(1) Upon a determination that wages and/or penalties are due, the department will advise the employer regarding the method of payment and require the payment:

(a) in either the department's or the claimant's name; and

(b) by money order, certified check, or other negotiable instrument.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(1) In cases where the wages claimed are paid by the employer either before or after receipt of the initial letter commencing the claim and prior to the issuance of a determination, no penalty will be imposed unless any of the special circumstances described in ARM 24.16.7556 apply.

(2) In cases where payment made either before or after receipt of the first letter does not resolve the claim and a determination is made finding that additional wages are due, a penalty will be calculated only on the balance determined still due to the employee, unless any of the special circumstances described in ARM 24.16.7556 apply.

(3) Money paid pursuant to a determination or redetermination will not be disbursed prior to the running of appeal periods unless the department is notified in writing that payment resolves the claim.

(4) Money paid pursuant to a determination but paid under protest or in other than free and clear manner will be deposited in the department trust account pending disposition. Payments made in this manner may be subject to the full penalty allowed in 39-3-206, MCA.

(a) the employer fails to provide information requested by the department and/or does not cooperate in the department's investigation of the wage claim;

(b) there is substantial credible evidence that the employer's payroll records are falsified or intentionally misleading;

(c) the employer has previously violated similar wage and hour statutes within three years prior to the date of filing of the wage claim; or

(d) the employer has issued an insufficient funds paycheck.

(2) Exceptions may be made in instances where the employee has failed to provide records or information necessary for the employer to make final payroll calculation and issue the final paycheck.

(3) The maximum penalty is mandatory under the above circumstances and may be reduced only upon the written mutual agreement of the parties and the department.

(1) For determinations involving minimum wage and overtime that are filed on or after October 1, 1993, penalties are calculated as follows:

(a) a penalty equal to 110% of the wages determined to be due to the employee will be imposed in all determinations issued by the department; but

(b) if none of the special circumstances of ARM 24.16.7556 apply the department will reduce the penalty to 55% of the wages determined to be due provided the employer pays the wages found due in the time period specified in the determination as well as a penalty equal to 55% of that amount.

(2) The penalty calculated according to this rule may be reduced only upon the mutual agreement of the parties and the department.

(3) Claims for minimum wage and overtime filed against employers covered by provisions of the Fair Labor Standards Act will be subject to the penalty provisions of that Act.

(a) a penalty equal to 55% of the wages determined to be due to the employee will be imposed in all determinations issued by the department; but

(b) the department will reduce the penalty to 15% of the wages determined to be due if the employer pays the wages found due in the time period specified in the determination as well as a penalty equal to 15% of that amount.

(2) If a claim involves any of the special circumstances of ARM 24.16.7556, the department will impose the maximum penalty allowed by law.

(3) The penalty calculated according to this rule may be reduced only upon the mutual agreement of the parties and the department.

This rule has been transferred.

This rule has been transferred.

This rule has been transferred.

This rule has been transferred.

This rule has been transferred.

This rule has been transferred.

This rule has been transferred.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.