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Read online @ B A K K E N O I L B I Z . C O M / d i g i t a l - j o u r n a l 25 (406) 443-6820 ➤ continued, pg 61 tractors and the issuance of ICECs to clarify who is actually operating as an independent contractor. The law now requires indepen- dent contractors either to have an ICEC or purchase workers' compensation coverage on themselves. To be conclusively presumed to be an independent contractor, the Depart- ment of Labor and Industry must approve an application for an ICEC, and the worker must be working under the ICEC. To be "working under" the ICEC, the worker must be perform- ing one of the occupations listed on the ICEC, and the employer and independent contrac- tor must not have a written or oral agreement that the independent contractor's status is that of an employee. However, the Depart- ment may investigate the working relation- ship at any time, and it may suspend or re- voke an ICEC and assess fines against either the independent contractor or the employer for violations of the law. So, how does an employer tell if a worker is an independent contractor under Montana law? An independent contractor is a worker who has an ICEC and meets the following con- ditions: He or she: A. Has been and will continue to be free from control or direction over the performance of ser- vices, both under the contract and in fact; and B. Is engaged in an independently estab- lished trade, occupation, profession, or business, and acknowledges no coverage under the workers' compensation law. If your new worker satisfies this "AB" test, then he or she is presumptively an indepen- dent contractor under Montana law, and you are not required to provide workers' compen- sation insurance for him or her in the event of an on-the-job injury. NORTH DAKOTA LAW In North Dakota, like in Montana, a worker and employer may not simply agree that their relationship is an independent contrac- tor relationship. Employers in North Dakota must evaluate 20 objec- tive characteristics to determine whether a worker qualifies as an independent contrac- tor. The North Dakota Department of Labor and Human Rights may verify the independent contractor status of future or existing work relationships in the state, but, unlike Mon- tana, such verification is not mandatory prior to recognizing a worker as an independent contractor. If the worker is recognized as an independent contractor in North Dakota and has received a verification from the Department, but at a later date is found actually to be an em- ployee, the employer may not be required to pay taxes, premiums, or wages, other than those required by the employment contract, unless the employer has willfully and inten- tionally entered into the relationship to avoid unemployment compensation taxes, workers' compensation premiums, or wages.

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