Independent Contractor: Elements: Independent Business

Wild v. Montana State Compensation Fund, 2003 MT 115 Where a roofer finished up a couple of jobs for which he had contracted, then worked exclusively for the alleged employer, neither seeking nor performing work for other individuals, he was not engaged in an independently established trade, occupation, profession or business and did not meet the second step of the Supreme Court's IC test, even though he held an IC exemption issued by the DOL.

Northwest Publishing v. Montana Department of Labor and Industry, 256 Mont. 360, 846 P.2d 1030 (1993) Traveling salespeople were not engaged in an independently established trade, occupation, profession or business to meet the "B" portion of the AB test of independent contractor status. "Notwithstanding the trend in recent years for people in many occupations to prefer the term ‘profession' to ‘occupation,' the employer's argument boils down to an assertion that because sales is a recognized occupation or profession involving marketable skills, it has met the "B" part of the test. Accepting such a premise would equate the "B" test with merely rendering services in the course of an occupation, as is already separately required in the first clause of the statute." Possessing a saleable skill is not the equivalent of being engaged in an independently established business, trade, or occupation.

Johnson v. Montana Department of Labor and Industry, 240 Mont. 288, 783 P.2d 1355 (1989) "B" portion of AB test of independent contractor status was met where worker was in carpentry/construction business and homeowner who hired him for remodeling work was a food broker who sells groceries for a living.

Solheim v. Tom Davis Ranch, 208 Mont. 265, 677 P.2d 1034 (1984) Trucker operated independent business where he had his own trucking company for nearly ten years before job at issue, describes himself as "independent trucker," files his own incomes taxes as a self-employed individual, has his own logo bearing his name, pays his own insurance and license fees on his own truck, generally does not work for pay on an hourly or weekly basis, and works for people other than the rancher now claimed as employer.

MONTANA WORKERS' COMPENSATION COURT DECISIONS

Colmore v. UEF/Forgey [3/4/04] 2004 MTWCC 22 Where a claimant hires on to do work for another, his expressed desire to go into business for himself is not sufficient to establish that he is engaged in an independent business for purposes of the B part of the Independent Contractor test where his expression of intent has gone no further, he has not purchased equipment essential to establishing a new business, he has no other jobs, and obtained the job at issue by indicating he was unemployed and needed work. (Note: WCC affirmed in part, and reversed in part, on other grounds in Colmore, et al. v. Uninsured Employers' Fund, 2005 MT 239.)

Thoreson v. Uninsured Employers' Fund [6/28/00] 2000 MTWCC 40 Where worker was not engaged in independently established business and had not been engaged in the line of work for which he was hired by this employer, he was not an independent contractor. Note: Affirmed in nonciteable decision 2002 MT 6.

Fliehler v. UEF [6/01/01] 2001 MTWCC 29 Where worker was not engaged in independently established business and had not been engaged in the line of work for which he was hired by this employer, he was not an independent contractor. Note: Affirmed in Fliehler v. Uninsured Employers' Fund, 2002 MT 125.