Current through Register Vol. 6, March 22, 2024
(1) To be an
independent contractor, an individual must be engaged in an independently
established trade, occupation, profession, or business. The following factors
serve as general guidelines when the department evaluates whether an
independently established business exists:
(a) the individual has a place of business
separate from the hiring agent's place of business;
(b) the individual supplies substantially all
of the tools, equipment, supplies, or materials necessary to perform the
services;
(c) the individual pays
all expenses associated with performing the services, and is not reimbursed by
the hiring agent;
(d) the
individual has two or more effective contracts to perform services for several
different hiring agents;
(e) the
individual is paid based on a billing statement or invoice at completion of the
services;
(f) the individual
performs the services under a written contract that requires complete or
partial payment after a certain amount of work is performed, and the contract
terminates after a definite time period;
(g) the individual advertises services in
telephone books, newspapers, or other media;
(h) the individual files federal or state
business tax forms;
(i) the
individual has the required customary licenses, registrations, or permits to
maintain a business;
(j) the
individual may realize a profit or suffer a loss from performing the services
for the hiring agent. This factor may be shown if the individual:
(i) hires or pays assistants to perform the
services;
(ii) performs the
services at facilities owned or leased by the individual;
(iii) has continuing or recurring liabilities
associated with performing the services; or
(iv) agrees to perform specific jobs for
prices agreed upon in advance and pays expenses associated with the performance
of the services;
(k) the
individual has an independent contractor exemption certificate;
(l) the individual may not end the
relationship at will without incurring liability. An independent contractor
agrees to complete a specific job, is responsible for its completion, and may
be subject to liability for failing to complete the job in accordance with
agreed upon specification;
(m) the
individual is not prohibited or restricted from working for others;
or
(n) another factor that
indicates the existence of an independently established trade, occupation,
profession, or business.
(2) The department shall evaluate and weigh
the above factors for each case. A combination of these factors may indicate
that the individual is customarily engaged in an independently established
trade, occupation, profession, or business. 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;