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(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.

History: 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; 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.

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