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| Montana Administrative Register Notice 24-16-379 | No. 23 12/10/2021 | |
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BEFORE THE DEPARTMENT OF LABOR AND INDUSTRY OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On January 4, 2022, at 10:00 a.m., the Department of Labor and Industry (department) will hold a public hearing via remote conferencing to consider the proposed amendment, adoption, and repeal of the above-stated rules. There will be no in-person hearing. Interested parties may access the remote conferencing platform in the following ways: a. Join Zoom Meeting, https://mt-gov.zoom.us/j/81945306451, Meeting ID: 819 4530 6451; or b. Dial by telephone, +1 406 444 9999 or +1 646 558 8656, Meeting ID: 819 4530 6451. The hearing will begin with a brief introduction by department staff to explain the use of the videoconference and telephonic platform. All participants will be muted except when it is their time to speak.
2. The department will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice. If you require an accommodation, contact the department no later than 5:00 p.m., on December 28, 2021, to advise us of the nature of the accommodation that you need. Please contact Misty Knight, Employment Relations Division, P.O. Box 8011, Helena, Montana 59604-8011; telephone (406) 444-7720; facsimile (406) 444-4140; Montana TTD (406) 444-5549; or e-mail [email protected].
3. GENERAL REASONABLE NECESSITY STATEMENT: In support of the Governor's Red Tape Relief Initiative, the Department of Labor and Industry (department) is conducting comprehensive reviews of the department's administrative rules. This review focuses on updating rules to current standards and procedures, and eliminating unnecessary, redundant, and overburdensome regulations. Other changes replace out-of-date terminology for current language and processes, and amend rules and catchphrases for accuracy, consistency, simplicity, better organization, and ease of use for customers and staff. The department determined it is reasonably necessary to amend six rules, repeal 27 rules, and adopt nine new rules to consolidate and standardize terminology and processes in the area of wage and prevailing wage claims, complaints, investigations, and appeals. Noting that the majority of these rules have not been revisited or amended in a decade, these changes will also address the various and potentially confusing appeal methods across several regulatory programs. Further, the streamlined new rules will increase department efficiencies by standardizing timelines and requirements for the same processes. Authority and implementation citations are being amended to accurately reflect all statutes implemented through the rules and provide the complete sources of the department's rulemaking authority. Therefore, the department is amending and repealing rules and adopting nine new rules to align with the Red Tape Relief Initiative. The proposed new rules will standardize wage claim/complaint terminology, procedures, and timelines across several department programs and locate the provisions in a new, focused subchapter of the Administrative Rules of Montana (ARM). Where additional specific bases for a proposed action exist, the department will identify those reasons immediately following that rule.
4. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:
24.16.7506 DEFINITIONS 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 (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) remains the same but is renumbered (4). (6) through (8) remain the same but are renumbered (7) through (9). (13) remains the same but is renumbered (14).
IMP:
REASON: The department is amending this rule and ARM 24.17.103 to align with definitions proposed in NEW RULE I and facilitate the use of standardized procedures for wage and prevailing wage claims, complaints, investigations, and appeals across several department programs as proposed in NEW RULES I through IX.
24.16.7535 PAYMENT OF WAGES AND PENALTIES (1) (a) in either the department's or the claimant's name (b) by money order, certified check, or other negotiable instrument.
IMP: 39-3-201,
REASON: The department is amending this rule to simplify, clarify, and update the rule's language.
24.17.103 DEFINITIONS As used in this subchapter, the following definitions apply, unless the context of the rule clearly indicates otherwise: (1) remains the same. (2) "Adverse decision" means a decision by the department (3) and (4) remain the same. (5) "Commissioner" (6) remains the same. (7) (a) a (b) a (c) a field investigation by the department of an employer's payroll on a public works contract job. (8) remains the same. (9) "Department" (10) "Determination" means a decision by the department on the merits of a claim, (11) through (15) remain the same. (16) " (17) "Mediation" is the process described by 26-1-813, MCA. (18) through (20) remain the same but are renumbered (19) through (21). (22) through (24) remain the same but are renumbered (23) through (25).
AUTH: 18-2-409, 18-2-431, 39-3-202, MCA IMP: 18-2-402, 18-2-403, 18-2-409, 18-2-411, 18-2-422, 39-3-201,
REASON: See REASON for ARM 24.16.7506.
24.33.475 DISPUTE RESOLUTION PROCESS (1) A person (2) The hearing will be conducted as a contested case (4) A party may appeal the hearing officer's decision to the unemployment insurance appeals board (UIAB) within ten days of the date the decision was sent. (5) A party may appeal a board decision by requesting judicial review per 39-51-2410, MCA.
AUTH: 2-4-201, 39-9-103, 39-9-212, MCA IMP: 2-4-603, 39-9-212, 39-9-401, MCA
REASON: It is reasonably necessary to amend (1) by allowing registered construction contractors and home inspectors 15 days to request a hearing following an adverse decision from the department. This change will standardize the timeline for hearing requests with other department programs such as independent contractor registration and wage and hour claims, which are both set in statute. There exists no statutory time for construction contractors' or home inspectors' appeals. Further amendments remove specific address, web site, and contact information to eliminate the need to amend the rule every time this information changes. The department is adding (4) and (5) to clearly set forth the later appeal processes as established in statute.
24.35.205 BINDING NATURE OF ICCU DECISIONS REGARDING EMPLOYMENT STATUS (1) Unless appealed following mediation (2) Neither the department nor any other agency (3) remains the same.
AUTH: 39-3-202, 39-3-403, 39-51-301, 39-51-302, 39-71-203, 39-71-417, MCA IMP: 39-3-212, 39-3-407, 39-51-1109, 39-71-415, 39-71-417, MCA
REASON: The department is amending this rule to simplify, clarify, and update the rule's language, and align with the standardized procedures of NEW RULES I through IX.
24.35.206 MEDIATION AND APPEAL OF
AUTH: 39-3-202, 39-3-403, 39‑51‑301, 39‑51-302, 39-71-203, 39-71-417, MCA IMP:
REASON: The department is amending this rule to simplify, clarify, and update the rule's language, and align with the standardized procedures of NEW RULES I through IX. Further amendments remove specific address, web site, and contact information to eliminate the need to amend the rule every time this information changes.
5. The proposed new rules are as follows:
NEW RULE I DEFINITIONS 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.
AUTH: 18-2-409, 18-2-431, 39-3-202, 39-3-403, MCA IMP: 2-4-603, 18-2-407, 18-2-409, 18-2-423, 18-2-424, 39-3-206, 39-3-207, 39-3-209, 39-3-210, 39-3-211, 39-3-216, 39-3-407, MCA
NEW RULE II TIME PERIODS – SUBMITTING DOCUMENTS TO THE DEPARTMENT (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.
AUTH: 2-4-201, 18-2-409, 18-2-431, 39-3-202, 39-3-403, MCA IMP: 2-4-201, 18-2-407, 18-2-409, 18-2-423, 18-2-424, 39-3-206, 39-3-207, 39-3-209, 39-3-210, 39-3-216, 39-3-407, MCA
NEW RULE III WAGE COMPLAINTS AND INVESTIGATIONS (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.
AUTH: 2-4-201, 18-2-409, 18-2-431, 39-3-202, 39-3-403, MCA IMP: 2-4-201, 18-2-407, 18-2-409, 18-2-423, 18-2-424, 39-3-206, 39-3-207, 39-3-209, 39-3-210, 39-3-211, 39-3-216, 39-3-407, MCA
NEW RULE IV DETERMINATIONS (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.
AUTH: 2-4-201, 18-2-409, 18-2-431, 39-3-202, 39-3-403, MCA IMP: 2-4-201, 2-4-603, 18-2-407, 18-2-409, 18-2-423, 18-2-424, 39-3-206, 39-3-207, 39-3-209, 39-3-210, 39-3-211, 39-3-216, 39-3-407, MCA
NEW RULE V REQUEST FOR RELIEF IF NOTICE NOT RECEIVED (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.
AUTH: 2-4-201, 18-2-409, 18-2-431, 39-3-202, 39-3-216, 39-3-403, MCA IMP: 2-4-201, 18-2-407, 18-2-409, 39-3-207, 39-3-209, 39-3-210, 39-3-216, 39-3-407, MCA
NEW RULE VI RESPONSES (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.
AUTH: 2-4-201, 18-2-409, 18-2-431, 39-3-202, 39-3-403, MCA IMP: 2-4-201, 18-2-407, 18-2-409, 18-2-423, 18-2-424, 39-3-206, 39-3-207, 39-3-209, 39-3-210, 39-3-211, 39-3-216, 39-3-407, MCA
NEW RULE VII REDETERMINATIONS (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 [NEW RULE VIII]. (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.
AUTH: 2-4-201, 18-2-409, 18-2-431, 39-3-202, 39-3-403, MCA IMP: 2-4-201, 2-4-603, 18-2-407, 18-2-409, 18-2-423, 18-2-424, 39-3-206, 39-3-207, 39-3-209, 39-3-210, 39-3-211, 39-3-216, 39-3-407, MCA
NEW RULE VIII HEARING REQUESTS (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 [NEW RULE IX]. 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.
AUTH: 2-4-201, 18-2-409, 18-2-431, 39-3-202, 39-3-403, MCA IMP: 2-4-201, 2-4-603, 18-2-407, 18-2-409, 39-3-206, 39-3-207, 39-3-209, 39-3-210, 39-3-211, 39-3-216, 39-3-407, MCA
NEW RULE IX MEDIATION (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.
AUTH: 2-4-201, 18-2-409, 18-2-431, 39-3-202, 39-3-216, 39-3-403, MCA IMP: 2-4-201, 2-4-603, 18-2-407, 18-2-409, 39-3-206, 39-3-207, 39-3-209, 39-3-210, 39-3-211, 39-3-216, 39-3-407, MCA
6. The rules proposed to be repealed are as follows:
24.16.7503 PURPOSE
24.16.7514 COMPUTATION OF TIME PERIODS
24.16.7517 ELECTRONIC FILINGS
IMP: 39-3-202, 39-3-211, 39-3-403, 39-3-407, MCA
24.16.7519 WAGE COMPLAINTS AND INVESTIGATIONS
24.16.7521 FILING A CLAIM
24.16.7524 EMPLOYEE'S FAILURE TO PROVIDE INFORMATION
IMP: 39-3-210, MCA
24.16.7527 EMPLOYER RESPONSE TO CLAIM
IMP: 39-3-209, 39-3-210, 39-3-407, MCA
24.16.7531 DETERMINATION
24.16.7534 REQUEST FOR REDETERMINATION
IMP: 39‑3‑209, MCA
24.16.7536 MEDIATION PROCEDURES
AUTH: 39-3-202, MCA
24.16.7537 REQUEST FOR FORMAL HEARING
IMP: 39-3-216, MCA
24.16.7541 DEFAULT ORDERS AND DISMISSALS
IMP: 39-3-216, MCA
24.16.7544 REQUEST FOR RELIEF IF MAIL IS NOT RECEIVED
IMP: 39-3-216, MCA
24.17.814 COMPUTATION OF TIME PERIODS
IMP: 18-2-403, 18-2-407, 18-2-423, MCA
24.17.817 FACSIMILE FILINGS
IMP: 18-2-403, 18-2-407, 18-2-423, MCA
24.17.821 FILING COMPLAINTS
IMP: 18-2-403, 18-2-407, 18-2-423, 39-3-201, 39-3-207, 39-3-209, 39-3-210, 39-3-211, MCA
24.17.822 JURISDICTIONAL REVIEW
IMP: 18-2-403, 18-2-407, 18-2-423, 39-3-201, 39-3-209, 39-3-210, 39-3-211, MCA
24.17.824 REQUESTING PARTY'S FAILURE TO PROVIDE INFORMATION
IMP: 18-2-403, 18‑2-407, 18-2-423, 39-3-201, 39-3-209, 39-3-210, 39-3-211, MCA
24.17.827 EMPLOYER RESPONSE TO COMPLAINT
AUTH: 18-2-423, 18-2-431, 39‑3-202, MCA IMP: 18-2-403, 18-2-407, 18-2-423, 18-2-424, 39-3-201, 39-3-209, 39-3-210, 39-3-211, MCA
24.17.829 DEPARTMENT REVIEW OF EMPLOYER RECORDS
IMP: 18-2-403, 18-2-407, 18-2-423, 18-2-424, 39-3-201 through 39-3-216, MCA
24.17.831 DETERMINATION
IMP: 18-2-403, 18-2-407, 18-2-423, 39-3-201 through 39-3-216, MCA
24.17.834 REQUEST FOR REDETERMINATION
IMP: 18-2-403, 18-2-407, 18-2-423, MCA
24.17.837 REQUEST FOR FORMAL HEARING
AUTH: 18‑2‑431, 39-3-202, MCA IMP: 18-2-403, 18-2-407, 18-2-423, 39-3-216, MCA
24.17.838 MANDATORY, NONBINDING MEDIATION
IMP: 39-3-216, MCA
24.17.841 DEFAULT ORDERS AND DISMISSALS
IMP: 18-2-403, 18-2-407, 18-2-423, 39-3-212, 39-3-216, MCA
24.17.844 REQUEST FOR RELIEF IF MAIL IS NOT RECEIVED
IMP: 18-2-403, 18-2-407, 18-2-423, MCA
24.17.847 APPEAL OF FORMAL HEARING
IMP: 18‑2‑403, 18-2-407, 18-2-423, 39-3-216, MCA
7. Concerned persons may present their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to Misty Knight, Employment Relations Division, P.O. Box 8011, Helena, Montana 59604-8011; facsimile (406) 444-4140; or e-mail [email protected], and must be received no later than 5:00 p.m., January 7, 2022.
8. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request, which includes the name and e-mail or mailing address of the person to receive notices and specifies the particular subject matter or matters regarding which the person wishes to receive notices. Such written request may be mailed or delivered to the contact person in paragraph 2 above or may be made by completing a request form at any rules hearing held by the agency.
9. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.
10. Pursuant to 2-4-111, MCA, the department has determined that the rule changes proposed in this notice will not have a significant and direct impact upon small businesses.
11. Department staff has been designated to preside over and conduct this hearing.
Certified to the Secretary of State November 30, 2021.
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A directory of state agencies is available online at http://www.mt.gov/govt/agencylisting.asp.
For questions about the organization of the ARM or this web site, contact [email protected].
