19-20-307. (Effective July 1, 2024) Establishing independent contractor status. (1) (a) An individual working in a position reportable to the retirement system is presumed to be a common law employee of the employer and not an independent contractor.

(b) Until the status of an individual working in a position reportable to the retirement system is conclusively established to be that of an independent contractor, the individual must be reported to the retirement system as an active member or working retiree, as appropriate, not as an independent contractor.

(2) (a) An employer who asserts that an individual working in a position reportable to the retirement system is an independent contractor shall conclusively establish that the individual is an independent contractor and not a common law employee of the employer by:

(i) a written determination prepared by an attorney, an employment or human resources professional, or another individual who is qualified to make worker status determinations;

(ii) an order of a court of competent jurisdiction; or

(iii) internal revenue service form SS-8.

(b) (i) An individual making the determination must provide with their written determination their full name, professional designations, business name, business address, and business telephone number.

(ii) The written determination or order must comprehensively address the internal revenue service criteria related to the facts and circumstances of the specific worker in the specific position at issue and must provide a reasoned discussion of each criterion and its application to the specific facts and circumstances of the work and the position, not merely provide a conclusory statement of finding.

(iii) An independent contractor exemption certificate by the Montana department of labor and industry must meet all of the requirements of this subsection (2).

(3) Any costs incurred to conclusively establish the independent contractor status of an individual working in a position reportable to the retirement system, as specified in this section, must be the sole responsibility of the employer.