2023 Montana Code Annotated › Title 39. Labor › Chapter 71. Workers' Compensation › Part 4. Coverage, Liability, and Subrogation › 39-71-417. Independent contractor certification

39-71-417. Independent contractor certification.
(1) (a) (i) Except as provided in subsection (1)(a)(ii), a person who regularly and customarily performs services at a location other than the person's own fixed business location shall apply to the department for an independent contractor exemption certificate unless the person has elected to be bound personally and individually by the provisions of compensation plan No. 1, 2, or 3.
(ii) An officer or manager who is exempt under 39-71-401(2)(r)(iii) or (2)(r)(iv) may apply, but is not required to apply, to the department for an independent contractor exemption certificate.
(b) A person who meets the requirements of this section and receives an independent contractor exemption certificate is not required to obtain a personal workers' compensation insurance policy.
(c) For the purposes of this section, "person" means:
(i) a sole proprietor;
(ii) a working member of a partnership;
(iii) a working member of a limited liability partnership;
(iv) a working member of a member-managed limited liability company; or
(v) a manager of a manager-managed limited liability company that is engaged in the work of the construction industry as defined in 39-71-116.
(2) The department shall adopt rules relating to an original application for or renewal of an independent contractor exemption certificate. The department shall adopt by rule the amount of the fee for an application or certificate renewal. The application or renewal must be accompanied by the fee.
(3) The department shall deposit the application or renewal fee in an account in the state special revenue fund to pay the costs of administering the program.
(4) (a) To obtain an independent contractor exemption certificate, the applicant shall swear to and acknowledge the following:
(i) that the applicant has been and will continue to be free from control or direction over the performance of the person's own services, both under contract and in fact; and
(ii) that the applicant is engaged in an independently established trade, occupation, profession, or business and will provide sufficient documentation of that fact to the department.
(b) For the purposes of subsection (4)(a)(i), an endorsement required for licensure, as provided in 37-47-303, does not imply or constitute control.
(5) (a) An applicant for an independent contractor exemption certificate shall submit an application under oath on a form prescribed by the department and containing the following:
(i) the applicant's name and address;
(ii) the applicant's social security number;
(iii) each occupation for which the applicant is seeking independent contractor certification; and
(iv) other documentation as provided by department rule to assist in determining if the applicant has an independently established business.
(b) The department shall adopt a retention schedule that maintains copies of documents submitted in support of an initial application or renewal application for an independent contractor exemption certificate for a minimum of 3 years after an application has been received by the department. The department shall, to the extent feasible, produce renewal applications that reduce the burden on renewal applicants to supply information that has been previously provided to the department as part of the application process.
(c) An applicant who applies on or after July 1, 2011, to renew an independent contractor exemption certificate is not required to submit documents that have been previously submitted to the department if:
(i) the applicant certifies under oath that the previously submitted documents are still valid and current; and
(ii) the department, if it considers it necessary, independently verifies a specific document or decides that a document has not expired pursuant to the document's own terms and is therefore still valid and current.
(6) The department shall issue an independent contractor exemption certificate to an applicant if the department determines that an applicant meets the requirements of this section.
(7) (a) When the department approves an application for an independent contractor exemption certificate and the person is working under the independent contractor exemption certificate, the person's status is conclusively presumed to be that of an independent contractor.
(b) A person working under an approved independent contractor exemption certificate has waived all rights and benefits under the Workers' Compensation Act and is precluded from obtaining benefits unless the person has elected to be bound personally and individually by the provisions of compensation plan No. 1, 2, or 3.
(c) For the purposes of the Workers' Compensation Act, a person is working under an independent contractor exemption certificate if:
(i) the person is performing work in the trade, business, occupation, or profession listed on the person's independent contractor exemption certificate; and
(ii) the hiring agent and the person holding the independent contractor exemption certificate do not have a written or an oral agreement that the independent contractor exemption certificate holder's status with respect to that hiring agent is that of an employee.
(d) A person without an independent contractor exemption certificate is rebuttably presumed to be an independent contractor when:
(i) the person represents to a hiring entity or individual in writing that the person has an independent contractor exemption certificate;
(ii) the person provides the hiring entity or individual a forged or otherwise fraudulent independent contractor exemption certificate; or
(iii) the person's independent contractor exemption certificate expires while the person is working under the contract and prior to full performance of the contract, for a period not to exceed 120 days following the expiration of the certificate.
(e) The department shall utilize the considerations set forth in subsections (4)(a)(i) and (4)(a)(ii) for any evaluation conducted under subsection (7)(d).
(8) Once issued, an independent contractor exemption certificate remains in effect for 2 years unless:
(a) suspended or revoked pursuant to 39-71-418; or
(b) canceled by the independent contractor.
(9) If the department's independent contractor central unit denies an application for an independent contractor exemption certificate, the applicant may contest that decision as provided in 39-71-415(2).
History: En. Sec. 1, Ch. 448, L. 2005; amd. Sec. 4, Ch. 117, L. 2007; amd. Sec. 2, Ch. 340, L. 2007; amd. Sec. 1, Ch. 120, L. 2009; amd. Sec. 2, Ch. 200, L. 2011; amd. Sec. 1, Ch. 224, L. 2023.