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What are the requirements relating to advertising open positions?
It is unlawful for an employer or employment agency to print or circulate or cause to be printed or circulated a statement, advertisement, or publication or to use an employment application that expresses, directly or indirectly, a limitation, specification, or discrimination as to sex, marital status, age, physical or mental disability, race, creed, religion, color, or national origin, or an intent to make the limitation, unless based on a bona fide occupational qualification (49-2-303(1)(c), MCA).
In addition, an entity doing business in Montana may not induce, influence, persuade, or engage workers to change from one place to another in the state through or by means of deception, misrepresentation, or false advertising concerning the kind or character of the work, the sanitary or other conditions of employment, or the existence of a strike or other trouble pending between the employer and the employees at the time of or immediately before the engagement. Employers must state in any advertisement, proposal, or contract for the employment of workers that there is a strike, lockout, or other labor trouble at the place of the proposed employment when in fact a strike, lockout, or other trouble actually exists at that place. Failure to do so is considered false advertisement and misrepresentation for which the affected worker may seek damages (39-2-303, MCA).
What can employers do with regard to background checks and inquiries?
(a) Criminal records and arrests
Employers cannot ask applicants or employees about arrests, but can ask about criminal convictions (Mont. Admin. R. 24.9.1406).
(b) Medical history
Montana has no general genetic testing law that would prohibit employer inquiries into medical history or genetic traits.
(c) Drug screening
Montana’s Workforce Drug and Alcohol Testing Act, 39-2-205-211, MCA, sets forth the requirements for a qualified drug and alcohol testing program. Before testing, an employer must establish a written testing policy that includes certain information, such as:
- a description of the applicable legal sanctions under federal, state, and local law for the unlawful manufacture, distribution, possession, or use of a controlled substance; and
- the employer's standards of conduct that regulate the use of controlled substances and alcohol by employees.
Permissible reasons for testing include pre-employment, random, reasonable suspicion, post-accident, and follow-up testing.
(d) Credit checks
Montana has its own equivalent to the federal Fair Credit Reporting Act which governs obtaining and using consumer reports, including credit reports that are obtained from a consumer reporting agency (31-3-101-153, MCA). Employers obtaining credit reports to be used for employment purposes must comply with the requirements of this law, including its notice and adverse action notification provisions.
Montana does not otherwise have a law restricting how employers may use credit reports.
(e) Immigration status
Employers are prohibited from knowingly employing aliens not lawfully authorized to accept employment. Violations can result in a $300 fine. In addition, the Montana Department of Labor or a person harmed by a violation may sue to enjoin the employer from violating this statutory provision and seek other appropriate relief (39-2-305, MCA).
(f) Social media
By statute (39-2-307, MCA), Montana prohibits an employer, or an employer's agent, from requiring or requesting an employee or job applicant to:
- disclose a user name or password for the purpose of allowing the employer or employer's agent to access a personal social media account of the employee or job applicant;
- access personal social media in the presence of the employer or employer's agent; or
- divulge any personal social media or information contained on personal social media.
Certain exceptions apply when an investigation is underway and the information requested of the employee is necessary to make a factual determination.
Polygraph tests are prohibited. Specifically, an employer cannot require a person to take a polygraph test or any form of mechanical lie detector test as a condition for employment or continued employment (39-2-304, MCA).
Off-duty use of lawful products (e.g., food, beverages and tobacco) is protected. Employers cannot make employment decisions based on an employee’s use of lawful products while off duty. Exceptions include if the employee’s use of a lawful product affects his or her ability to perform job-related responsibilities, affects the safety of other employees, or conflicts with a bona fide occupational qualification that is reasonably related to the employee’s job. In addition, this restriction does not apply to non-profit organizations with a primary purpose of discouraging the use of the lawful product, or if the employment relationship is defined by a professional service contract that authorizes the employer to limit the use of certain products. Further, employers will not violate the law if they believe that their actions are permissible under an established substance abuse or alcohol program or policy, professional contract, or collective bargaining agreement (39-2-313, MCA).
Wage and hour
What are the main sources of wage and hour laws in your state?
Title 39 Labor, Chapter 3, Wages and Wage Protection of the Montana Code, as well as Rule 24.16, Wages and Hours, Administrative Rules of Montana.
What is the minimum hourly wage?
As of January 1 2016, Montana’s minimum wage is $8.05 per hour. The Montana Department of Labor and Industry reviews the minimum wage on an annual basis and increases the minimum wage if the Consumer Price Index has increased. The state minimum wage for businesses whose gross annual sales are $110,000 or less, and which are not covered by the federal Fair Labor Standards Act, is $4 per hour.
No tip credit may be applied to lower the minimum wage paid to tipped employees.
What are the rules applicable to final pay and deductions from wages?
When an employee is terminated for cause and laid off, all wages due must be paid immediately, unless the employer has a pre-existing written policy that extends the time for the payment of final wages. Under a written policy, final wages on termination of employment may be delayed until the next payday for the period in which the separation occurred, or delayed by 15 calendar days, whichever occurs first.
When an employee quits or resigns, all wages due must be paid on the next scheduled payday for the period in which the employee was separated, or 15 calendar days later, whichever occurs first.
Generally, deductions from wages are lawful only for the following:
- deductions which the employer is required to make by law (e.g., federal and state taxes, social security, or a garnishment order); and
- deductions for board, lodging, or other incidentals for the benefit of the employee. It is recommended that agreements for these types of deductions be made in writing.
If an employee is discharged because of an allegation of theft of property or funds connected to the employee’s work, the employer may withhold from the employee’s final paycheck an amount equal to the value of the theft if the employee agrees in writing to the withholding, or the employer files a report of the theft with local law enforcement within seven business days of the separation of employment. If withholding in conjunction with filing a charge, should no charges be filed in court for the alleged theft within 30 days of filing of a report with local law enforcement, wages become due and payable upon the expiration of this 30-day period.
Aside from the exceptions, employers cannot withhold pay from an employee’s paycheck for, among other things, the return of keys, uniforms or tools, or for damages, shortages, or mistakes.
Hours and overtime
What are the requirements for meal and rest breaks?
Montana does not require that employers provide meal or rest breaks. If an employer chooses to provide a meal period, it will not be considered paid time if the meal period is 30 minutes or longer and the employee is completely relieved from duty. If rest breaks are provided, they generally are considered as paid time.
What are the maximum hour rules?
Employers generally require employees to work overtime and may discipline or terminate those employees who do not perform duties or hours as assigned. Exceptions exist for employees in certain occupations where daily work hours are restricted as follows:
- eight hours for operators of hoisting engines in or at mines, unless relieving a sick employee, or for unforeseen causes (39-4-101, MCA);
- eight hours for the operator or attendant of a motor bus, except in emergencies (employees must be allowed 12 hours of rest between shifts) (39-4-102, MCA);
- eight hours in underground mines or diggings (e.g., tunnels), except in emergencies (39-4-103, MCA);
- eight hours for employees working in strip mines, except in emergencies (39-4-104, MCA);
- eight hours per day, and 48 hours per working week, for employees in retail stores, excluding registered pharmacists and pharmacist assistants (39-4-105, MCA);
- nine hours for telephone operators, unless relieving a sick employee, or for unforeseen causes (39-4-106, MCA);
- eight hours for employees of cement plants or quarries, except in emergencies (39-4-109, MCA);
- eight hours for employees of sugar refineries, except in emergencies (39-4-110, MCA);
- eight hours per day (in 12 consecutive hours) and 48 hours per working week in commercial eating establishments, unless relieving sick employees, or other unforeseen causes and emergencies – employees must also receive 12 consecutive hours off duty (39-4-111, MCA); and
- eight hours per day (in 12 consecutive hours) and 48 hours per working week in public amusements – employees must also receive 12 consecutive hours off duty (39-4-112, MCA).
Unless otherwise exempt, a minor who is 14 or 15 years of age has maximum hour restrictions.
For overtime purposes, non-exempt employees must be paid time and a half of their regular rate of pay for any time worked over 40 hours in the employer’s seven-day working week.
How should overtime be calculated?
Non-exempt employees must be paid time and a half of their regular rate of pay for any time worked over 40 hours in the employer’s seven-day workweek.
If an employee is paid solely on the basis of a single hourly rate, then the hourly rate is his or her regular rate. For overtime work, the employee must be paid, in addition to straight time hourly earnings, a sum determined by multiplying half of the hourly rate by the number of hours worked in excess of 40 in the week.
If an employee is paid on a piece-rate basis, the employee’s regular rate of pay is calculated by adding together his or her total earnings for the working week from piece rates and all other sources (e.g., production bonuses), divided by the number of hours worked in the week. To calculate overtime pay, the pieceworker must be paid, in addition to the total weekly earnings, a sum equivalent to half of this regular rate of pay multiplied by the number of hours worked in excess of 40 in the week.
If a non-exempt employee is paid on a weekly salary basis, the regular hourly rate of pay, on which time and a half must be paid, is calculated by dividing the salary by the number of hours that the salary is intended to compensate.
If an employee, in a single working week works at two or more different types of work for which different rates of pay apply, the employee’s regular rate of pay, on which time and a half must be paid, is the weighted average of such rates.
Additional examples of computing overtime pay may be found at Mont. Admin. R. 24.16.2512.
What exemptions are there from overtime?
Exemptions from overtime include employees covered by the Fair Labor Standards Act white collar exemptions, certain domestic employees, certain farm, ranch, and agriculture employees and other narrow exemptions.
What payroll and payment records must be maintained?
Employers must maintain the following payroll records for every non-exempt employee for a minimum of three years:
- full name and identifying symbol or number, if used in place of name on any time, work, or payroll records;
- home address, including zip code;
- date of birth;
- sex and occupation;
- time of day and day of week on which the employee’s working week begins;
- regular hourly rate of pay, and length of pay period;
- hours worked each workday and total hours worked each workweek;
- total daily or weekly straight-time earnings;
- total weekly overtime pay;
- total additions to or deductions from wages paid each pay period;
- total wages paid each pay period; and
- date of payment and the pay period covered.
Required records for bona fide executive, administrative, and professional employees to be kept for a minimum of three years include the first to fifth items and tenth to twelfth items on the above list, and the basis on which wages are paid (e.g., $500 per month).