Seasonal Employment

Employment: Seasonal Employment

Leigh v. Montana State Fund [12/21/10] 2010 MTWCC 37 An ongoing, multi-year relationship in which the claimant is periodically terminated and rehired is part of the “employment history with the employer” as set forth in § 39-71-123(3)(b), MCA. It therefore must be taken into account in determining a seasonal employee’s average weekly wage.

Leigh v. Montana State Fund [12/21/10] 2010 MTWCC 37 Although in Brodie v. Liberty Northwest Ins. Co., 2001 MTWCC 30, this Court interpreted § 39-71-123(3)(b), MCA, to preclude consideration of wages a claimant earned prior to a termination, the statute’s language simply requires that the calculation accurately reflects the claimant’s employment history with the employer. An ongoing, multi-year relationship in which the claimant is periodically terminated and rehired is certainly part of the “employment history,” and Brodie fails to take into account the Montana Supreme Court’s decision in Gregory v. Michael Bailey & Sons Logging, 255 Mont. 190, 194, 841 P.2d 525, 527-28 (1992), in which the court concluded that the pre-termination history must be taken into account.

Leigh v. Montana State Fund [12/21/10] 2010 MTWCC 37 Where sporadic seasonal work is at issue, it is reasonable to calculate on a larger scale than four pay periods. Fairness demands that sporadic, seasonal employment be determined in a way which accurately reflects the claimant’s employment history with the employer as dictated by § 39-71-123(3)(b), MCA. Relying on § 39-71-123(3)(a), MCA, for determining average weekly wage in a seasonal employment situation is unreasonable and unfair. Gregory v. Michael Bailey & Sons Logging, 255 Mont. 190, 194, 841 P.2d 525, 527-28 (1992). Notwithstanding this Court’s bench ruling to the contrary in Brodie v. Liberty Northwest Ins. Co., 2001 MTWCC 30, an ongoing, multi-year relationship in which a worker is periodically terminated and rehired is part of the “employment history with the employer.”