UBE Seminar August 1, 2013 Montana Employment Law

Montana Statutes Title 39: Labor Chapter 2 : The Employment Relationship Chapter 3: Wages and Wage Protection Chapter 4: Hours of Labor And many more…

Workforce Drug and Alcohol Act, , through -211, MCA Unless testing is mandated by another specific law, only certain applicants and employees may be tested for controlled substances and alcohol. The person must be engaged in “performance, supervision or management of work in a hazardous work environment, security position, position affecting public safety or fiduciary position.” (4), MCA. The employer must have a written testing policy that meets statutory qualifications , MCA.

Other Limitations Montana employers cannot require lie detector tests as a condition of employment , MCA. Employers must pay for any medical examinations required as a condition of employment , MCA. With some exceptions, employers cannot discriminate based upon use of a lawful product like alcohol or tobacco during non-working hours , MCA.

At-Will Doctrine At common law, employees that do not have a written employment contract for a specified term were subject to the “at-will” doctrine. Either the employer or the employee could terminate the employment relationship at any time, without having to specify a reason. Subject to other laws and regulations, such as discrimination laws, whistle-blowing laws, etc.

Montana Wrongful Discharge Act In 1987, Montana adopted the Wrongful Discharge from Employment Act (“WDEA”), MCA et seq. Unique among states, the WDEA initially claimed to preserve the “at-will” concept, but at the same time defined situations where a termination of employment is wrongful, giving rise to a claim for wrongful discharge against the employer. In 1999, the Montana Supreme Court determined that the two concepts were mutually exclusive, and ruled that the WDEA impliedly repealed the at-will doctrine.

Wrongful Discharge Defined A discharge is wrongful if: (1) it was in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy; (2) the discharge was not for good cause and the employee had completed the employer's probationary period of employment; or (3) the employer violated the express provisions of its own written personnel policy. Handbooks are not contracts under Montana law, but employers must follow their own policies.

Probationary Period An employer may terminate an employee during the employee’s probationary period without having to establish good cause for the termination. Mont. Code Ann. § (2)(b) provides a six-month probationary period if an employer has not established a specific probationary period at the time of hire. Employees may not be discharged, even during the probationary period, in retaliation for refusing to violate public policy or reporting a violation of public policy (a), MCA.

Good Cause MCA Section (5) defines "good cause" to mean “reasonable job-related grounds for dismissal based on: a failure to satisfactorily perform job duties, disruption of the employer's operation, or other legitimate business reason.”

Limited Remedies The WDEA pre-empts any other basis for a wrongful discharge claim, such as tort or implied contracts. The WDEA limits a terminated employee’s remedies for wrongful discharge to recovery of damages, not to exceed four years of lost wages and benefits. The employee has a duty to mitigate.

Procedural Requirements An action under the WDEA must be filed within 1 year after the date of discharge , MCA. If employer has an appeal procedure, gives it to the discharged employee within 7 days of discharge, and the employee fails to use it, the claim is barred (3), MCA.

Exemptions from WDEA The WDEA does not apply: to a discharge that is subject to any other state or federal statute (such as federal or state discrimination laws), to employees covered by a written collective bargaining agreement, or to employees who have a written employment agreement for a specific term , MCA.

Written Explanations for Termination In Montana, an employee has the right to request a written explanation from her employer setting forth the reasons for her discharge. MCA The employee, in requesting this statement, must advise the employer of the possibility that the statements provided may be used in litigation.

Blacklisting Blacklisting of an employee is prohibited. MCA Misdemeanor An employer may not prevent or attempt to prevent, by word or writing of any kind, a discharged employee from obtaining employment with any other person. An employer may provide a truthful statement of the reason for discharge to any person to whom the discharged employee has applied for employment. MCA Punitive damages Misdemeanor

Wages and Hours Montana’s laws are stricter than the federal Fair Labor Standards Act (FLSA). State minimum wage ($7.80/hr) exceeds federal minimum wage ($7.25/hr) and is re-evaluated once a year , MCA. Certain employments are limited to 8-hour days , through -112, MCA.

Payment of Final Wages , MCA When an employee voluntarily leaves employment, wages are due on the next scheduled pay day for the period in which the employee was separated, or 15 calendar days, whichever occurs first. When the employer terminates the employment, all the unpaid wages of the employee are immediately due and payable (within four hours or end of the business day, whichever occurs first) unless the employer has a written personnel policy that extends the time for payment of final wages to the employee's next regular payday (but no later than 15 days from the date of separation)

Vacation, Sick Leave In Montana, an employer is not required to provide paid vacation or sick leave. But if an employer elects to provide these benefits, any accrued and unpaid vacation or sick leave benefits are treated the same as wages, and must be paid to the employee within the time frames specified in the previous slide. No “use it or lose it”

Independent Contractors True independent contractors are exempt from minimum wage and overtime laws, as well as workers’ compensation, unemployment, etc. Montana’s worker compensation laws require a person who regularly and customarily performs services at a location other than the person's own fixed business location to apply to the Department of Labor & Industry for an independent contractor exemption certificate , MCA. nContractorTaxLiscensure.pdf nContractorTaxLiscensure.pdf The burden is on the person employing the worker to make sure she is really an independent contractor.

The Montana Human Rights Act MCA, et. seq Employers may not discriminate “because of race, creed, religion, color, or national origin or because of age, physical or mental disability, marital status or sex when the reasonable demands of the position do not require an age, physical or mental disability, marital status or sex distinction.” , MCA. Two categories not listed under federal law (1) creed (2) marital status (includes married, divorced or single)

Procedures Complaint must be filed with the Department of Labor and Industry within 180 days of last discriminatory act , MCA. Must go through the administrative process before a claim may be brought in court. Punitive damages are not available. Supervisors can be held individually liable (11), MCA.

Montana Maternity Leave Act , -311, MCA. Employer cannot terminate an employee because of her pregnancy. Employer must grant a “reasonable leave of absence for the pregnancy.” Does not have to be paid leave, but employee is entitled to use sick leave/vacation benefits otherwise available. Employers may not require a mandatory leave for an “unreasonable length of time.” Must reinstate the employee at the end of a “pregnancy-related leave” to her original job or an equivalent position unless circumstances have so changed that it is impossible. There is no mandatory leave for new fathers (but see discussion of marital status discrimination above.)

Employee’s Right to Privacy Montana employees have a right to privacy in their employment files, personnel records, lifestyle. Neither employer nor employee can record conversations without the knowledge of the other person , MCA.

Safe Place to Work , MCA Employers must provide safe places to work. This includes preventing damages to mental health as well as physical harm. Must “purchase, furnish, and require the use of health and safety devices, safeguards, protective safety clothing, or other health and safety items, including but not limited to air masks, hardhats, and protective gloves, that may be required by state or federal law.”

Clean Indoor Air Act , et. seq MCA Smoking is prohibited in workplaces, even if only one worker.

Medical Marijuana , MCA Employers do not have to accommodate the use of medical marijuana in the workplace. Employer can include “in any contract a provision prohibiting the use of marijuana for a debilitating medical condition.” Employees may not bring a claim against an employer for wrongful discharge or discrimination because of use of medical marijuana.

Covenants not to Compete Disfavored. Discussed in Contract section.