24.35.202    DECISIONS REGARDING EMPLOYMENT STATUS

(1) Subject to ARM 24.35.203, when the ICCU or another unit of the department evaluates an individual's employment status, the department shall apply a two-part test to determine whether an individual is an independent contractor or an employee. The department shall evaluate:

(a) whether the individual is and shall continue to be free from control or direction over the performance of the services, both under contract and in fact; and

(b) whether the individual is engaged in an independently established trade, occupation, profession, or business.

(2) To determine whether a hiring agent exerts control over an individual, the department shall evaluate:

(a) direct evidence of right or exercise of control;

(b) method of payment;

(c) furnishing of equipment; and

(d) right to fire.

(3) To determine the employment status of an individual, the department may:

(a) review written contracts between the individual and the hiring agent;

(b) interview and obtain statements from the individual, co-workers, and the hiring agent;

(c) obtain statements from third parties;

(d) examine the books and records of the hiring agent;

(e) review filing status on income tax returns;

(f) perform onsite visits; and

(g) make any other investigation necessary to determine employment status.

(4) Decisions regarding employment status must comply with the criteria for an independent contractor found at 39-71-417, MCA, as well as with existing law on partnership, joint ventures, and other employment entities.

(5) Initial determinations regarding employment status may be issued by any unit of the department or by the Department of Revenue. Initial determinations of employment status by the department are binding on the parties unless a party disputes the determination, pursuant to ARM 24.11.2407 or 24.16.7527.

(6) ICCU "decisions" regarding employment must be called "decisions" and are separate and distinct from both initial determinations of the department and "orders" defined at ARM 24.29.205.

(7) ICCU decisions regarding employment status are binding on the department and on any other agency which elects to be included as a member of the department's ICCU, subject to the limitations contained in ARM 24.35.205(3). This does not include any agency which is merely appearing before the ICCU as a party in an employment status case (for example the state compensation insurance fund), and has not elected to be included as a member of the ICCU.

(8) The department may apply its decisions regarding employment status to similarly situated individuals.

 

History: 39-3-202, 39-3-403, 39-51-301, 39-51-302, 39-71-203, 39-71-417, MCA; IMP, 39-3-208, 39-3-209, 39-3-210, 39-51-201, 39-51-203, 39-71-415, 39-71-417, 39-71-418, MCA; NEW, 1996 MAR p. 1676, Eff. 7/1/96; AMD, 2005 MAR p. 1511, Eff. 8/12/05; AMD, 2010 MAR p. 1608, Eff. 7/16/10; AMD, 2018 MAR p. 720, Eff. 4/14/18.