Current through Register Vol. 6, March 22, 2024
(1) An individual is an employee and not an
independent contractor if the hiring agent controls or retains the right to
control the way the individual renders services. The following factors serve as
general guidelines when the department evaluates whether control exists:
(a) the individual is required to follow
written or oral instructions concerning when, where, or how work is to be done.
Although some individuals, because of skill or expertise, work without
receiving instructions, they may still be employees if the employer has the
right to give instructions on work performance;
(b) the success or continuation of a business
depends in great part upon the services performed by the individual;
(c) the hiring agent directs the hiring,
supervising, or payment of the individuals assistants;
(d) the relationship between the individual
and the hiring agent is on a frequent, recurring basis, even if irregular or
part time;
(e) the individual is
required to perform services at certain established times;
(f) the work is performed on the business
premises or jobsite of the hiring agent. This factor is especially important if
the work could be performed elsewhere;
(g) the hiring agent requires, or has the
right to require, the individual to perform services in a certain manner, or in
a certain order or sequence;
(h)
the hiring agent requires the individual to submit oral or written
reports;
(i) the individual is paid
based on the time spent doing the work rather than a payment for a completed
project or end result;
(j) the
individual is paid or reimbursed for travel or other business-related
expenses;
(k) the hiring agent
furnishes the facilities, tools, materials, or other equipment to the
individual;
(l) the individual may
be discharged at the will of the hiring agent, including the right to discharge
for the failure to follow specified rules or methods. A union contract or
statute which restricts the right of discharge does not indicate a lack of
control;
(m) training is provided
to the individual by the hiring agent;
(n) the individual does not realize a profit
or suffer a loss as a result of the services performed;
(o) the individual is prohibited or
restricted from working for others or is required to devote primary attention
to the hiring agent;
(p) the
individual has signed an overly broad noncompetition clause in a contract with
a hiring agent; or
(q) other
factors that indicate control of the individual by the hiring agent.
(2) The above factors are weighed
and evaluated depending on the circumstance of each case. A combination of
these factors may indicate control or the right to control. Service performed
by an individual for pay is considered to be employment until it is shown to
the satisfaction of the department that the individual is an independent
contractor.
39-3-202,
39-3-403,
39-51-301,
39-51-302,
39-71-203,
39-71-417,
MCA; IMP,
39-3-201,
39-51-201,
39-51-203,
39-51-204,
39-71-417,
39-71-418,
MCA;