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(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.

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, 2003 MAR p. 2550, Eff. 11/14/03; AMD, 2005 MAR p. 1511, Eff. 8/12/05; AMD, 2010 MAR p. 1608, Eff. 7/16/10.

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