Kiss Your Worker's Compensation Protections Goodbye When You Sign an Independent Contractor’s Exemption Certificate.

Under Section 39-71-401, MCA, all employers and employees are covered under Montana’s Workers’ Compensation Act. However, Section 39-71-401, MCA includes exceptions to this general rule. The exceptions expanded over the years and include an exemption of any worker carrying an “independent” contractor exemption certificate.  

Section 39-71-118, MCA, defines an employee or worker as: 

each person in this state, including a contractor other than an independent contractor who is in the service of an employer, as defined by 39-71-117, under any appointment or contract of hire, expressed or implied,  oral or written.  The terms include aliens and minors, whether lawfully or unlawfully employed, and all of the elected and appointed paid public officers and officers and members of boards of directors of quasi-public or private corporations, except those officers identified in 39-71-401(2), while rendering actual service for the corporations for pay.

Although this definition may seem broad, the exceptions set out under Section 39-71-401 cover no fewer than twenty-six types of employment that are not covered.  The exceptions have been even further broadened by the Montana state legislature.  The Montana legislature decided to allow individuals to opt out of the workers’ compensation system by obtaining an independent contractor exemption certificate.  Possession of a valid independent contractor’s exemption certificate issued by the Montana Department of Labor and Industry creates a presumption that the holder is an independent contractor and not an employee.  For all intents and purposes, this allows anyone in the construction trades to opt out of the workers’ compensation system.

Work in the United States and Montana has changed significantly over the past 100 years.  Automation and the relocation of industrial work overseas caused changes in our workforce.  Although Montana has one of the highest rates of on the job deaths, the number of serious injuries occurring on the job decreased dramatically from the time of the great bargain between employers and employees.  There is a legitimate question as to whether Montana needs the workers’ compensation system at all.  Plummeting benefits cause the entire community to bear the burden of injured workers.  A lack of accountability for employers and employees makes the no-fault system seem outdated, and the end of the quid pro quo allowing employees to sue employers for unsafe work sites may be the best thing Montana can do.