Employment: Temporary Employees

C. Loney Concrete Construction, Inc. v. ERD, UEF [8/15/97] 1998 MT 230 Supreme Court holds that WCC correctly interpreted the definition of temporary employee within section 39-71-116(24), MCA (1991). WCC correctly refused to consider the 1995 Montana Legislature's amendment to the definition of temporary worker where the transaction at issue occurred when 1991 law was applicable. As is well-settled, the law in existence at the time of the action in question is controlling in workers' compensation matters. The WCC correctly determined that a temporary worker employed to meet the an "emergency or short-term workload" within the 1991 statute is hired for a workload that "is greater than the normal workload and exists for a matter of weeks or at most a few months." The Supreme Court agreed that substantial evidence supported the DOL determination that some workers were not temporary workers where they were core workers consistently serving daily business functions, such as job supervision, bookkeeping and providing the minimum number of concrete workers to meet baseline level of job activity.

C. Loney Concrete Construction, Inc. v.RD, UEF [8/15/97] 1997 MTWCC 47 In this second appeal of this case, a concrete contractor challenges the second determination of the Department of Labor that none of the contractor's workers meet the definition of "temporary worker" in section 39-71-116(24), MCA (1991). Careful reading of the hearing officer's decision indicates that he found the evidence as to some employees inconclusive and resolved the status of those workers based on the contractor's failure to prove they were temporary workers. This analysis improperly shifted the burden of proof to the contractor. As to other workers, the record supports the hearing officer's conclusion they were baseline and not temporary workers. As held in the prior appeal, the phrase "emergency or short-term" within section 39-71-116(24), MCA (1991) means as follows: emergency contemplates something unforseen and unexpected, requiring immediate action; short-term contemplates a workload which is greater than a normal workload and exists for a matter of weeks or at most a few months. The hearing officer erroneously concluded that the contractor must include an expected need for short-term employees in his overall volume of business and insure an average number of such employees. As held previously, workers furnished for short-term overloads, either for a specific time, or to work on a specific short-term project until completion, may be considered temporary employees so long as they are not furnished on an indefinite basis. The hearing officer's affirmation of the DOL cease and desist order was proper because the contractor was operating with some non-temporary employees, but the DOL findings are reversed with regard to specific employees.

Dahl v. UEF, [5/2/00] 2000 MTWCC 25 On remand from the Supreme Court, which held that companies receiving workers from temporary employment agencies must maintain their own WC coverage and cannot rely on their temporary agency to provide coverage, the WCC held that section 39-71-116(29), MCA (1993), which defines "temporary worker," was not unconstitutionally vague. On its face, the statute distinguishes between temporary and permanent employees and limits the use of temporary employees to emergency situations or to fill in for permanent employees on leave. This definition is comprehensible as applied to employees at issue.

Dahl v. UEF, 1999 MT 168. Workers used to meet a company's baseline needs and working continuously and consistently for a company are not temporary employees within section 39-71-116(29), MCA (1993). Where section 39-71-401(1), MCA (1993), requires an employer to elect to be bound by the provisions of compensation plan No. 1, 2, or 3, an employer may not rely upon a workers' compensation policy purchased by a company furnishing employees and providing bookkeeping services such as issuing of payroll checks and paying employment taxes if the workers in question are in fact employees and not temporary workers. If a company has employees but does not itself carry workers' compensation insurance, the employer is uninsured under section 39-71-501, MCA (1993) if it does not itself carry workers' compensation insurance.

Dahl, d/b/a Big Sky Concrete v. UEF [5/12/98] 1998 MTWCC 39 Statutory requirements are satisfied where a workers' compensation policy covered the workers, even though the policy was purchased by an employment agency and not the entity for whom the workers were performing work. [Note: WCC reversed on this issue in Dahl v. Uninsured Employers' Fund, 1999 MT 168.]