(1) The unemployment insurance division of the Department of Labor and Industry adopts and incorporates the organizational structure and description of general duties and responsibilities set out and explained in chapter 1 of this title. The division strives to provide services in a courteous and efficient manner, within the parameters of federal and state law.

(2) The rules in this chapter were drafted and are administered by the unemployment insurance division. However, to avoid confusion if the department is reorganized or the unemployment insurance division is renamed, the rules refer to the "department" as a whole.

(3) The address and contact numbers for the department's main office in Helena are as follows:

Unemployment Insurance Division

Montana Department of Labor and Industry

1315 East Lockey Street

P.O. Box 8020

Helena, MT 59604-8020

Telephone: (406) 444-3555

Fax: (406) 444-2993

Montana Relay Service at 711

e-mail: contact links are included on the unemployment insurance web page at: http://uid.dli.mt.gov

(4) Contact numbers for unemployment insurance bureaus are as follows:

(a) Helena Claims Processing Center: (406) 444-2545;

(b) Billings Claims Processing Center: (406) 247-1000;

(c) Contributions Bureau Switchboard: (406) 444-3834; and

(d) Benefits Bureau Switchboard: (406) 444-3783.

(5) The Unemployment Insurance Internet Application for filing a benefit claim (UI4U) is at: http://ui4u.mt.gov.

(6) The unemployment insurance web portal for registering, filing, and paying employer taxes is at: http://uieservices.mt.gov.

This rule has been repealed.

(a) ARM 1.3.102; and

(b) ARM 1.3.203 through 1.3.210.

(2) The department further adopts the following rules only to the extent such rules do not conflict with the hearing rules in subchapter 3 of this chapter:

(a) ARM 1.3.211 through 1.3.216;

(b) ARM 1.3.218 through 1.3.220;

(c) ARM 1.3.222 through 1.3.231; and

(d) ARM 1.3.233.

(3) ARM 1.3.217, 1.3.221, and 1.3.232 have not been adopted because the rules of evidence and civil procedure are not binding in hearings on unemployment insurance matters.

This rule has been repealed.

In addition to the terms defined in 39-51-201 through 39-51-205, and 39-51-1121, MCA, the following definitions apply to this chapter, unless context or a particular rule provides otherwise:

(1) "Additional claim" means a claim that is reactivated as provided in ARM 24.11.445(2) following one or more separations from insured work occurring subsequent to the filing of an initial claim or of a prior additional claim.

(2) "Adjudicate" means to make a determination, redetermination, or decision relative to an issue that exists on a claim.

(3) "Agent state" means any state from or through which an individual files an interstate claim for benefits against another state.

(4) "Appeal" means a request by an interested party aggrieved by a determination, redetermination, or decision for a review of the determination, redetermination, or decision at the next higher level of review.

(5) "Base period employer" means an employer from whom a claimant earned wages for insured work during the base period of the claim.

(6) "Calendar quarter" means any one of the following quarters in a year:

First - January, February, March

Second - April, May, June

Third - July, August, September

Fourth - October, November, December

(7) "Child" as used in 39-51-2111, MCA, means an individual under the age of 18, including an emancipated minor, or an adult with a disability who is dependent upon parent(s) or guardian(s) for food, shelter, living expenses, and other necessities.

(8) "Claim," as used in this chapter and in Title 39, chapter 51, MCA, unless the context or language clearly indicates otherwise, means an initial, additional, or reactivated claim for unemployment insurance benefits.

(9) "Claimant" means a person who has filed, or is in the process of filing a claim.

(10) "Claims processing center" means the center that provides unemployment insurance claims services to the public.

(11) "Commuter claimant" means an individual who customarily commutes across state lines from a residence in one state to work in a liable state.

(12) "Contribution rate schedule" means the schedule of contribution rates assigned to employers each calendar year based upon the ratio between the trust fund balance as of October 31 and the total wages in employment for the year ending June 30.

(13) "Days" means a specified number of consecutive days, not excluding Saturdays, Sundays, and holidays except as provided in ARM 24.11.206.

(14) "Discharge," as used in 39-51-2303, MCA, means a termination of the work relationship between an employer and a worker initiated by the employer, for reasons other than a lack of work, whether or not in response to some act or omission on the part of the worker.

(15) "Educational credential" means a degree, diploma, certificate, transcript, report, document, letters of designation, marks, appellations, series of letters, numbers, or words which signify, purport, or are generally taken to mean enrollment, attendance, progress, or satisfactory completion of the requirements or prerequisites of a class, course or program of training, instruction, or study.

(16) "Educational institution," as used in 39-51-2108 and 39-51-2307, MCA, means any public, private, or nonprofit academic, vocational, technical, business, professional, or other school (including a home school), college, or university that offers educational credentials and/or educational services.

(17) "Educational service" means a class, course, or program of training, instruction, or study.

(18) "Full-time work" means insured work in which a worker is regularly scheduled to work 40 or more hours per week.

(19) "Good cause" means reasonably compelling circumstances which did not result from any act or omission on the part of the person or business entity claiming good cause and which could not be overcome by reasonable diligence.

(20) "Initial claim" means a request filed by a claimant for a determination of the claimant's potential entitlement to and eligibility for benefits.

(21) "Insured work" means employment, as defined in 39-51-203, MCA, including federal civilian service, federal military service, and services that constitute employment in any other state, but does not include those services enumerated in 39-51-204, MCA.

(22) "Interstate Benefit Payment Plan" means the plan approved by the National Association of State Workforce Agencies (NASWA) under which benefits are payable to unemployed individuals absent from the state (or states) in which benefit credits have accumulated.

(23) "Interstate claimant" means an individual who files an interstate claim for benefits under the unemployment insurance law of a liable state.

(24) "Issue" means any act, circumstance, or condition that has the potential to disqualify or make a claimant ineligible for benefits or to reduce the amount of benefits payable to a claimant.

(25) "Job attached" means a claimant is able and available and has a definite or approximate date of hire or recall to insured work at 30 or more hours per week.

(26) "Labor market area" means an economically integrated geographic area within which individuals can reside and find work within a reasonable distance or can readily change jobs without changing their place of residence.

(27) "Leave of absence" means a cessation of work due to reasons other than an on-the-job injury, requested by the worker and approved by the employer, with an understanding the worker will be returning to work for the employer.

(28) "Leaving work," as used in 39-51-2302, MCA, means:

(a) any permanent, long-term, or indefinite voluntary reduction in a worker's hours of insured full-time work for a particular employer initiated by the worker, whether or not the reduction occurs in response to an act or omission of the employer or is approved by the employer; or

(b) a cessation of employment initiated by the worker, which resulted from the worker's absence from work without an employer-approved leave of absence for:

(i) five or more consecutive work days due to a physical or mental condition, which prevented the worker from performing the essential functions of the job; or

(ii) three or more consecutive work days without the employer's permission for any other reason.

(29) "Liable state" means the state responsible for administering an interstate claim for benefits established by an individual under the law of the liable state.

(30) "Long-term" means that the circumstance in question will or may reasonably be expected to continue to exist substantially unchanged for a period of time exceeding six consecutive weeks.

(31) "Monetary determination" means a determination of a claimant's potential entitlement to benefits based upon the amount and distribution of wages in the claimant's base period.

(32) "Nonmonetary determination" means a decision involving an issue related to a claimant's qualification or eligibility for benefits, independent of claimant's monetary determination of benefits.

(33) "Offset" means the withholding of benefits that would otherwise be payable to a claimant for a compensable week of unemployment in order for the department to recover an overpayment.

(34) "Overpayment" means the amount of benefits paid to a claimant from a state or federal unemployment compensation fund that the liable state subsequently determines the claimant was not entitled to receive by reason of disqualification, ineligibility, or reduction in entitlement under the law of the liable state.

(35) "Participating state" means a state which has subscribed to the interstate reciprocal overpayment recovery agreement.

(36) "Part-time work" means insured work in which a worker is regularly scheduled to work less than 40 hours per week.

(37) "Permanent layoff" means an indefinite termination of the work relationship between an employer and a worker initiated by the employer due only to a lack of work for the worker to perform.

(38) "Recently lived" as used in 39-51-2111(5), MCA, means having lived with the abusive person for a period of time during the 12-month period immediately preceding the date the claimant left insured work or was discharged from insured work due to domestic violence or domestic abuse.

(39) "Recovering state" identifies a state that has received a request from another state to assist in the recovery of a benefit overpayment.

(40) "Reopened claim" means a claim that is reactivated as provided in ARM 24.11.445(2) when there have been no separations from insured work subsequent to the filing of an initial claim or of a prior additional claim.

(41) "Requesting state" means the state that has issued a final determination of benefit overpayment and requests another state to assist in recovering the outstanding balance from the overpaid individual.

(42) "Same work" means an offer by an individual's present employer of the same hours, wages, terms of employment, and working conditions.

(43) "Separation" means any reduction in a worker's hours of insured work for a particular employer.

(44) "Similar work" means work in the same occupation or a different occupation that requires essentially the same skills and knowledge as the worker's current or most recent employment but does not mean identical work.

(45) "State-approved training program" means a program the department determines is reasonably expected to lead to employment for a claimant and meets the criteria outlined by ARM 24.11.475.

(46) "Suitable work" means work the department determines a claimant is reasonably suited to perform by experience, education, or training. Suitable work is further described by ARM 24.11.485.

(47) "Suspension" means an abeyance of the work relationship between an employer and a worker initiated by the employer for disciplinary, investigative, or other reasons not including a lack of work for the worker to perform.

(48) "Temporary layoff" means a suspension of the work relationship between an employer and a worker initiated by the employer due only to a lack of work for the worker to perform and where the employer intends to recall the worker at such time as work becomes available, except for separations from temporary work as defined in ARM 24.11.454A.

(49) "Termination" means either a discharge or a permanent layoff.

(50) "Termination pay" means a payment from an employer to a claimant as the result of discharge or permanent layoff.

(a) Examples of termination pay include:

(i) severance pay;

(ii) separation pay;

(iii) wages in lieu of notice;

(iv) continuation of wages for a designated period of time following cessation of work or other similar payment; and

(v) payments made under an incentive, worker buy-out, or similar plan designed to produce a general or specific reduction in force by inducing workers to leave voluntarily or in lieu of involuntary termination, whether paid in a lump sum or incrementally over any period of time.

(b) Termination pay may include payment for accrued unused vacation, sick leave, or any other leave paid at or after termination from work.

(51) "Transferring state" means the state that transfers wage credits reported for a claimant to the liable state for use in determining the benefit entitlement of the claimant under the law of the liable state.

(52) "Trust fund" means the unemployment insurance fund created in 39-51-401, MCA.

(53) "Union attached" means a claimant is:

(a) able and available for work;

(b) a member in good standing of a labor union that operates an exclusive hiring hall; and

(c) on the out-of-work list at the hiring hall.

(54) "Valid claim" means an initial claim with base period wages of an amount sufficient to qualify the claimant for benefits under 39-51-2105, MCA, or under a comparable law of any other state, and which results in the establishment of a benefit year under 39-51-201, MCA, or under a comparable law of any other state, without respect to whether or not the claimant is otherwise qualified or eligible to receive benefits.

(55) "Valid notice" means a formal, unconditional, specific communication between an individual worker and an employer or authorized agent of an employer that provides notice of the date a worker intends to leave work voluntarily (quit) or notice of the date an employer intends to terminate a worker from employment.

(56) "Voluntary quit" means a worker left work with or without good cause attributable to the employment.

(57) "Wage credits" means the wages reported to a state unemployment insurance program that were paid to an employee.

(58) "Wage credits from another state" means the assignment or transfer of wage credits, under an arrangement under 39-51-504(1), MCA, to Montana or another liable state, pursuant to 20 CFR 609, 20 CFR 616, or 20 CFR 614.

(59) "Waiting week" means a week of total unemployment, as defined by 39-51-2101, MCA, for which a claimant must file a weekly payment request but is not entitled to receive unemployment insurance benefits, pursuant to 39-51-2104, MCA.

(60) "Week claimed" means any week with respect to which a claimant files a weekly payment request for benefits or waiting week credit.

(61) "Week ending date" is the date on which the Saturday of any week falls.

(62) "Week of unemployment" means any week of unemployment, as defined in the law of the liable state in which a valid claim is established.

(63) "Weekly payment request" means the filing by a claimant of a request for benefit payment or waiting week credit for any week within claimant's benefit year.

(64) "Work search contact" means a documented contact by a claimant with an employer or authorized agent that hires workers for work the claimant is qualified for and able to perform, and further described by ARM 24.11.453A.

(65) "Work week" or "week of work" is a week as defined in 39-51-201, MCA, in which the claimant earns wages that are covered by unemployment insurance.

(1) Claimants and employers must respond in a timely manner to all department requests for information. The department shall notify claimants and employers of the established deadline for each submission. When a deadline falls on a Saturday, Sunday, or holiday, the submission may occur no later than the next business day. This rule does not apply to the filing of weekly payment requests under ARM 24.11.443.

(2) Claimants and employers may submit information to the department using the following means:

(a) telephone contact with a customer service representative at the department's claims processing center during the center's published business hours.

(b) mailing a written submission to the department. Submissions by mail of responses to department requests for information must be received by the department (not postmarked) by the established deadline.

(c) e-mail transmission to the file transfer service or the e-mail address designated by the department.

(d) facsimile transmission at the fax number designated by the department.

(3) Claimants and employers are allowed eight days to respond to department requests for information pertaining to a benefit claim. A timely response by mail must be received by the department no later than the established deadline. Each response must identify the person responding and address fully the department's questions.

(4) An employer who, without good cause, provides an untimely or incomplete response to a department request for information may forfeit interested party status and the right to credit for any overpayment, pursuant to 39-51-605, MCA, and ARM 24.11.208 and 24.11.617.

(5) Claimants and employers are allowed ten days to submit a request for an appeal of a determination, redetermination, or decision of an appeals referee relating to a claimant's entitlement to or eligibility for benefits or to an employer's chargeability for benefits. A timely request for an appeal by mail must be received by the department no later than the established deadline. In the absence of an appeal, a determination, redetermination, or decision becomes final ten days after the determination, redetermination, or decision was mailed by the department to the party's last known address.

(6) The department may allow the untimely submission of information or request for an appeal only when the department determines that the claimant or employer had good cause to be untimely.

(7) Any individual may obtain an answer to an inquiry concerning the unemployment insurance program by submitting the inquiry by telephone, facsimile, mail, or e-mail.

(1) A claimant is an interested party to proceedings that adjudicate claimant's eligibility and qualification for unemployment insurance benefits.

(2) The department is an interested party to proceedings that adjudicate any and all issues related to benefit claims and employer tax liability.

(3) Except as provided by 39-51-605, MCA, and ARM 24.11.208, an employer who paid wages to the claimant during the base period is an interested party to proceedings that adjudicate the claimant's separation from employment with that employer. An employer is not an interested party to proceedings that adjudicate nonseparation issues related to a claim.

(4) An employer is an interested party to proceedings that adjudicate the employer's own tax liability, contribution rate, application for refund, subject wages and other tax contribution-related issues.

(5) Any person may provide the department with information relevant to an investigation or determination of a benefit claim or an employer's tax liability. Unless a person is an interested party to a proceeding, the department shall not notify the person of the determination and the person does not have standing to contest the determination.

(6) Only an interested party to an unemployment insurance proceeding has standing to request a redetermination, hearing, or appeal to the Unemployment Insurance Appeals Board.

(7) The department shall provide written notice of a determination, redetermination, hearing, and appeal only to the identified interested parties to a particular proceeding as defined by this rule.

(1) The department shall determine an employer forfeited the right to participate as an interested party in the adjudication of an unemployment insurance claim when the employer:

(a) fails to respond within eight days of a department request for information related to a claimant's wage, employment, separation and eligibility for benefits, in accordance with ARM 24.11.450A; or

(b) fails to provide an adequate response to a relevant and material question regarding a claim for benefits posed by the department.

(2) For the purpose of this rule, "adequate response" means an accurate and complete answer by an employer to each relevant and material question posed by the department. Examples of employer responses, which the department may determine to be inadequate, include, but are not limited to, the following:

(a) answering a relevant and material department question with "not applicable" or "unknown at this time";

(b) failing to submit copies of written employee discipline or details of verbal employee discipline when the employer alleges misconduct;

(c) neglecting to provide a detailed description, upon request, of the final incident that triggered the claimant's separation from employment;

(d) failing to provide written statements by a workplace witness when requested by the department; or

(e) failing to provide a copy of the employer's rule or policy when employer alleges claimant was discharged for violation of the rule or policy.

(3) The department shall provide written notice to the employer of a determination that the employer forfeited the right to participate as an interested party to the adjudication of a claim. Following the employer's forfeiture, the employer may participate as an informational witness only.

(4) An employer may appeal the department's determination in accordance with the procedures of 39-51-2402, MCA, and ARM 24.11.450A.

(5) The employer and the department are the only interested parties to the adjudication of an employer's forfeit of interested party status.

(6) The department may rescind the employer's forfeit of interested party status only when good cause is demonstrated, as defined by ARM 24.11.204. The employer bears the burden of showing good cause for the employer's untimely or inadequate response.

(7) When an employer forfeits interested party status in the adjudication of a particular claim, the employer also forfeits the following:

(a) the right to appeal a department decision regarding the adjudication of that benefit claim; and

(b) the right to credit for a benefit overpayment created by the employer's untimely or inadequate response.

(1) A claimant may designate another person to serve as claimant's agent to communicate with the department on the claimant's behalf. Claimant shall notify the department of the level of authority conferred by claimant on the agent:

(a) Level 1 designation allows the agent to provide information to the department related to the claim for benefits. Agent may respond to department requests for information by telephone or in writing. Agent may request a redetermination or appeal on claimant's behalf;

(b) Level 2 designation allows the agent to file a new claim, reactivate an inactive claim, or file continued claim certifications on the claimant's behalf. Claimant must provide the agent with claimant's Personal Identification Number to allow the agent to access claimant's account; or

(c) Level 3 designation grants the agent authority to act on claimant's behalf as outlined by both (a) and (b).

(2) Before an agent may act on a claimant's behalf, the claimant must complete, sign, and return the agent designation form to the department. The agent designation form specifies the limits of the agent's authority and the time period covered by the designation.

(3) Any action taken or information provided by the agent has the same effect as an action taken or information provided by the claimant.

(4) Claimant may revoke or renew agent designation or alter the level of authorization at any time by notifying the department in writing. Agent designation expires after one year or when a new claim is filed, whichever occurs first.

This rule has been transferred.

This rule has been transferred.

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This rule has been repealed.

(a) If the appeal is of a determination that an individual is an employee rather than an independent contractor, or vice versa, the department shall forward the appeal to the Independent Contractor Central Unit (ICCU) for a decision, in accordance with ARM Title 24, chapter 35.

(2) The notice of appeal must contain reasons for the appeal.

(3) The notice of a benefits appeal must be filed in writing with the department's office in Helena, either in person, by mail, by facsimile, or by e-mail. Benefit appeal forms may be used and are available upon request.

(4) The notice of a tax appeal must be filed in writing with the department's office in Helena, either in person, by mail, by facsimile, or by e-mail.

(2) Upon receiving a notice to appeal a department determination or redetermination on tax matters, the contributions bureau sends a copy of relevant evidence in the administrative record to all interested parties and to the Office of Administrative Hearings, but retains the administrative file.

(3) If the department is an active participant in the administrative hearing, the department's representative at the hearing must receive notices and other hearing documents in the same manner as any other interested party.

(1) A hearing must be scheduled as soon as practical.

(2) Written notice of a tax hearing or pre-hearing conference must be mailed to all interested parties, including the department's representative, at least 20 days before the hearing or conference.

(3) Written notice of a benefits hearing must be mailed to all interested parties at least ten days before the hearing.

(4) A hearing notice must comply with 2-4-601, MCA, stating the date, time, and place of the hearing, legal authority for the hearing and the issues involved in the matter.

(5) The advance notice requirements in (2) and (3) do not apply to rescheduled hearings or rescheduled prehearing conferences, if the parties have been given reasonable notification of the new date and time.

(a) An in-person tax hearing or conference may be scheduled in Helena if a party requests in writing such a hearing either at least 14 days before the scheduled telephone hearing or at the pre-hearing conference.

(b) An in-person benefits hearing or conference may be scheduled in Helena if a party requests in writing such a hearing at least five days before the scheduled telephone hearing.

(2) Before a telephone hearing in tax cases, the following information or documents must be mailed or delivered to the appeals referee and all other parties:

(a) accurate copies of all documentary evidence;

(b) the names, addresses and telephone numbers of all proposed witnesses; and

(c) the telephone numbers where the parties and witnesses may be reached at the time of the hearing.

(3) Telephone numbers may be updated by either party at any time prior to hearing.

(2) At any time, an appeals referee may issue an order or give notice of self-disqualification.

(1) This rule implements 39-51-2407, MCA, by setting forth procedural steps that shall be followed in contested matters involving unemployment insurance benefit determinations.

(2) Benefit hearings are conducted informally, and in such a manner as to ascertain the substantial rights of the parties. All issues relevant to an appeal are considered and passed upon. Any interested party, any witness, under oath, or affirmation, may present pertinent evidence subject to examination by the appeals referee and to cross-examination by any opposing interested parties.

(3) With the consent of the appeals referee, the parties may stipulate in writing the facts of the case. A hearing may nevertheless be held when the appeals referee finds the stipulated facts to be inadequate for decision in the case.

(4) The appeals referee shall conduct the hearing within 30 days of the filing of an appeal, absent clear and convincing evidence that extraordinary circumstances justify delay. The hearing may be postponed upon a party's written or verbal application to the appeals referee. The appeals referee shall deny a request to postpone unless delay is justified by extraordinary circumstances beyond the requesting party's control.

(5) When the appeals referee does not grant a postponement and a party fails to appear at the hearing, the appeals referee shall issue the determination based upon the best available evidence.

(6) The appeals referee may adjourn any hearing for a reasonable period of time, in order to secure all the evidence that is necessary and to be fair to the parties.

(a) determine the issues that must be decided by the appeals referee;

(b) exchange copies of all proposed exhibits and names, addresses, and telephone numbers of all proposed witnesses;

(c) identify possible remedies;

(d) discuss hearing procedures;

(e) hear oral argument on any motions; and

(f) perform any other duties that may facilitate the disposition of the case.

(2) All parties, including the department, are notified of the prehearing conference at least 20 days before the conference is scheduled.

(3) A prehearing order supersedes all other prior pleadings in the matter.

(4) If a party fails to participate in the prehearing conference, or fails to comply with a prehearing order, the appeals referee may impose sanctions upon that party including but not limited to:

(a) dismissal of the case;

(b) default judgment for the opposing party;

(c) limitation of evidence or witnesses at the hearing.

(2) The appeals referee may set the time, place and method of discovery by conference, prehearing order, or otherwise. The appeals referee may enter appropriate orders for violations of discovery orders.

(3) Depositions, interrogatories and answers to them, requests for production of documents and responses to them, and other discovery documents need not be filed with the appeals referee. If a party makes a motion based on discovery documents, the motion must be supported by verified copies or abstracts of the discovery documents.

(4) If a party wants to introduce a product of discovery as part of the administrative record, the party must identify the evidence in a prehearing memorandum or at the prehearing conference.

(5) The use of depositions in lieu of live testimony at a hearing is determined by the Montana Rules of Civil Procedure. If only portions of a deposition are necessary, the appeals referee may order the preparation of excerpts to avoid a bulky record or consideration of irrelevant or prejudicial matters.

(6) Discovery procedures may not be appropriate in many cases. If formal discovery by the parties is considered necessary by the appeals referee, the above procedures may be used.

(a) be in writing and signed by the moving party;

(b) be submitted to the appeals referee before or at the prehearing conference no later than ten days prior to the hearing; and

(c) briefly state the relief asked for and the reasons for the motion.

(2) The moving party must serve a copy of the motion on all other parties and deliver or mail to the appeals referee the original with proof of service.

(3) A party opposing the motion must have a reasonable time to respond to the motion.

(4) The appeals referee may hear oral argument on the motion.

(5) A motion for continuance of a hearing or conference scheduled by an appeals referee may be granted only upon a showing of good and sufficient cause. The motion must indicate whether or not opposing parties object to the continuance. A motion for a continuance filed with the appeals referee within three days of a scheduled hearing or conference will be considered only under extraordinary circumstances.

(2) Rules of evidence are not strictly applied or followed. However, the appeals referee uses those rules as guidelines in determining the relevance, prejudice, or weight of evidence.

(3) All parties have the right to cross-examination of witnesses for a full and accurate disclosure of the facts. Other examination is within the discretion of the appeals referee.

(4) The appeals referee may, at any time, postpone or continue a hearing to secure evidence or information necessary for a fair and complete hearing.

(2) Within ten days after the date of the scheduled hearing, a party who didn't attend the hearing may move for a rehearing. Such a motion may be granted only in extraordinary circumstances.

(2) The appeals referee's decision also contains a notice of the appeal rights of an interested party, stating the time, place, and manner in which an appeal may be made.

(3) The appeals referee's decision is final unless further review is begun under 39-51-2403 and 39-51-2404 , MCA, within ten days after the appeals referee's decision was mailed to the interested party's last known address.

This rule has been repealed.

This rule has been repealed.

(1) The appeals referee may issue subpoenas on the referee's own motion or may issue up to three to an interested party upon request. Subpoenas may be issued for the attendance of witnesses or the production of documents. Subpoenas must be served in the same manner as provided in civil actions.

(2) When an interested party requires more than three subpoenas, the party must file a written request with the Office of Administrative Hearings, which specifies the following:

(a) expected content of evidence or witness testimony;

(b) necessity of the witness' testimony;

(c) refusal of the witness to testify voluntarily; and

(d) how the testimony of each witness differs from the expected testimony of other witnesses.

(3) A requested subpoena will not be issued when the hearing officer determines a subpoena is unduly burdensome or the expected witness testimony will be unnecessarily repetitive or irrelevant.

(4) The appeals referee may enter the appropriate order for failure to comply with the provisions of a subpoena.

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This rule has been repealed.

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This rule has been repealed.

(1) To request a determination of a claimant's eligibility for benefits, the claimant must file an initial claim by using the UI4U web portal at http://ui4u.mt.gov, or calling the claims processing center to request filing assistance. The claimant shall provide such information as the department may require for the proper administration of the claim. The information required from the claimant includes, but is not limited to:

(a) the claimant's name, mailing address, and demographic data;

(b) the claimant's social security number;

(c) whether the claimant is a United States citizen and, if not, the claimant's alien registration permit number;

(d) whether the claimant has an existing benefit year under any state or federal unemployment insurance or unemployment compensation law;

(e) whether the claimant is totally unemployed;

(f) whether the claimant is able to work, available for work and seeking work; and

(g) the names and addresses of all employers for whom the claimant worked in the most recent 18 months, as well as the beginning and ending dates of insured work for each employer and the reasons for the claimant's separation from insured work with each employer.

(2) The department may require the claimant to provide verification, written or otherwise, of any information requested from or provided by the claimant in connection with the claim.

(3) If the department determines that the claimant, having filed an initial claim, has base period wages of an amount sufficient to qualify the claimant for benefits under 39-51-2105, MCA, without respect to whether or not the claimant is otherwise qualified or eligible to receive benefits, the claimant is deemed to have established a "valid claim."

(4) The claim is effective on the Sunday of the week in which the claim is filed and remains in effect until:

(a) the end of the benefit year; or

(b) the claim is cancelled as provided in (6).

(5) The claimant may request that the claim be backdated to an earlier effective date. If the department finds that the claimant had good cause for the delay in filing the initial claim, the claim will be backdated.

(6) A claim may be cancelled if the claimant files a request for cancellation within ten calendar days after the date an initial or revised monetary determination, as provided in ARM 24.11.442, is mailed to the claimant's last known address. The request to cancel the claim must be in writing and be signed by the claimant. A request to cancel a claim received after the time allowed will be granted only if the department finds that the claimant had good cause for the delay in filing the request.

(1) After filing an initial claim, a claimant will receive an initial monetary determination stating whether the claimant has sufficient wages to qualify for benefits.

(a) Base period wages used to establish a monetary determination and a benefit year in any state, including Montana, may not be:

(i) used by this state to establish a second or subsequent monetary determination and benefit year; or

(ii) transferred by this state to another state for the purpose of combining wages and employers as provided by 39-51-504 , MCA.

(b) For the purposes of this rule, base period wages are deemed to be "used" when the base period wages are:

(i) part of the calculation that establishes the monetary amount of benefits payable on the claim;

(ii) the basis for establishing the benefit year of the claim; and

(iii) of an amount sufficient to qualify the claimant for benefits under 39-51-201 (2) or 39-51-2105 , MCA, if the claimant is otherwise eligible to receive benefits with respect to that claim.

(2) The initial monetary determination informs the claimant of:

(a) the department's records of the claimant's base period employer or employers;

(b) the amount of wages reported as having been paid in each of the calendar quarters of the base period;

(c) the potential amount of benefits the claimant may receive in the benefit year; and

(d) the effective date of the claim.

(3) Except for wages as described in (6) , upon the request of a claimant, the department will adjust the distribution of the claimant's base period wages by assigning the wages to the calendar quarters in which the wages were earned rather than to the calendar quarters in which they were paid.

(4) If a claimant's wage records have not been received, and the department has determined that the employer is subject to unemployment tax, the claimant may support the claim by affidavit or documented evidence for the department's consideration in establishing the amount of base period wages.

(5) Generally, only wages actually or constructively paid determine the amount of wages in the claimant's base period. Wages are constructively paid if they are credited to the worker's account or set apart for a worker so that they may be drawn upon by the worker at any time, although not actually in the worker's possession. However, unpaid wages may be considered if a claimant:

(a) completes an affidavit stating:

(i) the name and address of any employer from whom wages are due;

(ii) the amount of unpaid wages; and

(iii) the reasons why the wages have not been paid; and

(b) provides at least one of the following:

(i) a W-2 or 1099 form as required by the internal revenue service;

(ii) a signed statement from the employer affirming the truth of the claimant's affidavit;

(iii) a copy of the employer's schedule of assets and liabilities filed in a bankruptcy proceeding showing the unpaid wage claim;

(iv) a copy of the claimant's wage claim filed with the department, if the department has not dismissed the wage claim; or

(v) a copy of a decision of the department or a court of competent jurisdiction stating that the wages are owed the claimant.

(6) The following payments are wages which are assignable in the following periods:

(a) Payments made for termination of employment in insured work generally known or described as severance pay, separation pay, termination pay, wages in lieu of notice, continuation of wages for a designated period of time following cessation of work, or other similar payment, and payments made under an incentive, worker buy-out, or similar plan designed to produce a general or specific reduction in force by inducing workers to leave voluntarily or in lieu of involuntary termination, whether paid in a lump sum or incrementally over any period of time, are attributable to the quarter in which the separation from work occurred.

(b) Accrued vacation and sick leave paid at or after separation, other than a temporary layoff, are attributable to the quarter in which the separation from work occurred.

(c) Bonus, awards, incentives, rewards, profit sharing, and stocks are attributable to the quarter the payment was issued.

(d) Holiday pay is attributable to the quarter the payment was issued.

(e) Payments received for accrued unused vacation, sick leave, compensatory time or other similar leave when separation has not occurred or during periods of temporary layoff are attributable to the quarter in which the payment was issued. These payments are sometimes also known as a "cash-out" of leave benefits.

(f) Backpay and settlements, in all cases, will be prorated back over the time the payment represents. Only the portion of the payment that is wages which would have been earned, or wages earned and not paid, will be applied to weeks claimed and quarterly wages.

(g) Use of vacation or sick leave, compensatory time or other similar leave paid during the course of employment in insured work, including periods of temporary layoff, for time off from work for vacation, whether voluntary or mandated, sick leave, or other leave with pay is attributable to the quarter the payment was issued.

(h) Royalties, residual payments, and commissions are attributable to the quarter in which the payment was issued.

(7) Except as provided in this rule, the initial monetary determination is final unless a claimant requests revision of the determination within ten days after the determination was mailed. Upon request of the department, the claimant may be required to provide proof of earnings, such as check stubs, W-2 forms, or statements from employers.

(8) A monetary redetermination is final unless a claimant appeals the decision as provided in 39-51-2402 and 39-51-2403 , MCA, within ten days of the date the redetermination was mailed.

(1) After establishing a valid claim for benefits, a claimant must file timely weekly payment requests using the UI4U web portal, unless the claimant is unable to file online. In those instances, the department shall allow the claimant to file weekly payment requests by mail, e-mail, or facsimile using paper forms provided by the department. A claimant may elect to file payment requests each week or to file two payment requests every other week.

(2) Weekly payment requests are timely if filed after the week claimed, and before midnight of the Saturday seven calendar days later.

(3) A claimant must answer fully each question on the weekly payment request form and certify that the claimant's responses are true and accurate to the best of the claimant's knowledge.

(4) When filing weekly payment requests using the UI4U web portal, a claimant must enter the claimant's social security number, birth date, and personal identification number to access the system. The personal identification number must be established by the claimant at the time of filing. The claimant must maintain the confidentiality of the claimant's personal identity number in order to protect the integrity of the claim. The department considers a claimant's personal identification number to be the equivalent of the claimant's signature for the purpose of certifying that the claimant's responses to department questions are true and accurate to the best of the claimant's knowledge.

(5) A claimant must report all hours worked or for which the claimant was paid and gross wages earned for each week for which payment is requested.

(a) Hours worked must be reported for the week that the claimant performed work for an employer or time was credited in lieu of work performed by the claimant, such as holiday pay, or use of vacation, sick, or other paid leave, regardless of whether that use was voluntary or mandatory.

(b) Gross wages earned must be reported for the week in which the claimant worked or was credited for working in lieu of work (including holiday pay, or use of vacation, sick, or other paid leave, regardless of whether that use was voluntary or mandatory. Other types of payments from an employer must be reported as follows:

(i) Termination pay must be reported as wages for the week in which termination occurred.

(ii) A bonus, award, incentive, reward, or profit sharing, whether in cash or in the form of securities, must be reported as wages for the week in which the payment was issued.

(iii) Accrued unused vacation, sick leave, or other leave without a termination from work, commonly referred to as a "cash-out" of accrued leave, must be reported as wages for the week in which the payment was issued.

(iv) When a claimant receives a royalty or residual payment, or payment for a commission, the payment must be reported as earnings for the week in which the payment was issued.

(c) The date payment was issued shall be established by the date printed on a physical check, the date of release of electronic funds transfer, or the date cash was tendered. The department may allow up to 14 calendar days for reporting discrepancies.

(6) A claimant must file timely weekly payment requests during the pendency of a monetary determination, a non-monetary determination, or an appeal to receive benefits or waiting period credit for the intervening week or weeks.

(7) A claimant must complete work search contacts seeking insured work during each week for which claimant requests payment of benefits or waiting week credit, unless the claimant is exempt from this requirement pursuant to ARM 24.11.453A.

(8) The department may allow the untimely filing of a weekly payment request only when the department determines the claimant had good cause for failing to file within the time allowed. If the department determines that no good cause justifies the delay in filing, benefits or waiting week credit must be denied and the claimant may be required to reactivate the claim as provided in ARM 24.11.445.

This rule has been repealed.

(1) A claim for benefits becomes inactive if, for any two consecutive weeks within the benefit year, any of the following occur in any combination:

(a) claimant does not file a weekly payment request; or

(b) claimant files a weekly payment request, but:

(i) indicates that the claimant does not wish to claim benefits;

(ii) reports hours of work equal to or greater than 40;

(iii) reports hours of work equal to or greater than the claimant's established hours typically worked; or

(iv) reports earnings equal to or greater than twice the claimant's weekly benefit amount.

(2) To reactivate an inactive claim, the claimant must:

(a) call the claims processing center during the center's published business hours and request that the claim be reactivated; or

(b) access the department's Internet claim system.

(3) A reactivated claim is effective on the Sunday of the calendar week in which the claimant reactivates the claim. A claimant may request that the department backdate the claim to an earlier effective date. The department may backdate a claim when the department determines that the claimant had good cause for the delay in reactivating the claim.

(4) When reactivating a claim, a claimant must provide information concerning any separation from insured work as provided in ARM 24.11.451.

This rule has been repealed.

(2) A claimant who is excused from registering is not required to actively seek work, but must meet all other eligibility requirements in order to receive benefits. Work registration exceptions are limited to the following common circumstances:

(a) Job attached claimants, as defined in ARM 24.11.452A, must maintain contact with the employer to whom they are attached, and must return to work when requested by the employer.

(b) Union attached claimants, as defined in ARM 24.11.452A, must comply with the union's requirements to be considered a member in good standing and be listed on the union's out-of-work list.

(c) Labor dispute claimants who are unemployed due to a labor dispute may be excused from registering until a determination under ARM 24.11.465A is issued. If benefits are allowed, the claimant must either register for work or must provide sufficient information to the department to qualify for an exception as job attached or union attached within the time period specified in ARM 24.11.452A.

(d) Individuals participating in approved federal training programs under 39-51-2602 , MCA.

(3) Registration exceptions may be granted to other individuals or groups if the department finds the exception to be consistent with the purpose of the unemployment insurance program. Registration exceptions cannot be granted if prohibited by state or federal laws governing certain unemployment insurance programs.

This rule has been repealed.

(1) The department shall adjudicate and issue formal, written determinations and redeterminations on claimant qualification and eligibility for unemployment benefits, which include the reason(s) for claimant's separation from insured work or whether claimant meets the requirements for benefit eligibility throughout the claim benefit period.

(2) The department shall investigate, when necessary, prior to issuing a formal, written determination on claimant's qualification or eligibility for benefits.

(3) Interested parties shall respond to all department requests for information pertinent to an investigation within eight days of the request, unless the delay in responding was for "good cause" as defined in ARM 24.11.204. When a claimant fails to respond within eight days and in the absence of "good cause," the department shall proceed with the adjudication process. When an employer fails to respond within eight days or provides an inadequate response to a relevant and material request for information from the department, the department shall determine the employer forfeited the right to participate in the adjudication of the claim as an interested party and forfeited the right to credit for any benefit overpayment created by the employer's untimely or inadequate response, pursuant to 39-51-605, MCA, and ARM 24.11.208.

(4) The department shall adjudicate qualification issues in the following manner:

(a) When claim information obtained by the department provides a sufficient basis for a fair determination and discloses no essential disagreement between the claimant and employer, the department shall investigate no further and issue an initial determination of claimant's qualification for benefits.

(b) When the information relevant to the issue of qualification obtained by the department from the employer or other sources differs substantially from that furnished by the claimant, the department shall afford the claimant the opportunity to review the information, respond, and submit rebuttal evidence, if any. The department shall consider claimant's response and rebuttal evidence, if any, prior to issuing an initial determination of claimant's qualification for benefits.

(5) The department shall adjudicate challenges to claimant's eligibility to receive benefits in the following manner:

(a) When the department obtains credible information that claimant fails to meet the requirements of benefit eligibility, the department shall investigate promptly by requesting information pertinent to the allegation(s) from claimant and other sources.

(b) The department shall afford claimant the opportunity to review the relevant information obtained by the department, respond, and submit rebuttal evidence, if any. The department shall consider claimant's response and rebuttal evidence prior to issuing a determination regarding claimant's eligibility for benefits. If claimant fails to provide the requested information within the time period designated by (3), the department may determine claimant to be unavailable for work as provided in ARM 24.11.452A.

(6) When a determination holds that a claimant is disqualified or ineligible for benefits due to an act or circumstance that occurred prior to the effective date of an initial, additional, or reopened claim, the department shall deem claimant disqualified or ineligible for benefits as of the effective date of that claim.

(7) When a determination holds that a claimant failed to meet the requirements of benefit eligibility due to an act or circumstance that occurred within the benefit period of a prior or current claim, the department may find claimant liable for repayment of benefits.

(8) The department shall notify all interested parties of the issuance of a determination by providing each a copy of the determination via U.S. mail. The department also shall provide copies of the determination by facsimile transmission and e-mail, upon request.

(9) Within ten days following the date of department mailing of a determination, an interested party may request a redetermination by submitting a request to the department, by telephone, fax, mail, or internet, together with any additional information the party wishes the department to consider. The following exceptions to the ten-day deadline to request a redetermination apply:

(a) a claimant disqualified for benefits by a department determination may submit proof of requalification at any time, pursuant to 39-51-2302, 39-51-2303, or 39-51-2304, MCA; or

(b) a claimant found ineligible for benefits by a department determination may submit proof of restored eligibility at any time, pursuant to 39-51-2104, MCA, and ARM 24.11.452A.

(10) Prior to issuance of a redetermination, the department shall provide any additional relevant information to all interested parties and invite the parties to review, respond, and submit rebuttal evidence, if any, within eight days of the department request for rebuttal. The department shall notify all interested parties of the issuance of a redetermination, per (8).

(11) An appeal of a redetermination may be filed by an interested party by submitting a request for a hearing to the Office of Administrative Hearings by fax, mail, or internet within ten days of the department mailing of the redetermination. The department shall notify the interested parties in writing of the appeal to the Office of Administrative Hearings.

(12) An appeal of the decision of the Office of Administrative Hearings may be filed by an interested party by submitting a request for the appeal to the department by fax, mail, or internet within ten days of the department mailing of the hearing officer's decision. The department shall notify the interested parties in writing of the appeal to the Unemployment Insurance Appeals Board.

(13) A claimant becomes qualified or eligible to receive benefits on the Sunday immediately preceding the date upon which the department receives information that demonstrates claimant's qualification or eligibility, regardless of the time required for claim adjudication.

(1) The department investigates each separation from insured work that occurred during the six weeks immediately preceding the effective date of an initial or an additional claim. The department shall adjudicate all separations that occurred during the six-week period except:

(a) when the claimant separated from insured work with the same employer more than once, the department shall adjudicate only the last separation involving that employer;

(b) when the claimant is being paid their regular wages during an administrative leave; or

(c) where ARM 24.11.454A applies due to a valid notice.

(2) If the claimant did not separate from insured work during the six-week period, the department shall investigate and adjudicate the claimant's most recent separation from insured work that occurred prior to the six weeks immediately preceding the effective date of the claim.

This rule has been repealed.

(1) The department shall use the following criteria to determine whether a claimant is able, available, and actively seeking full-time or part-time work.

(2) A claimant is able to work when the claimant can perform a substantial amount of suitable work in the claimant's labor market area. For the purposes of this rule, a "substantial amount" of suitable work means full-time work, unless:

(a) the majority of the claimant's work weeks in the claim base period were part-time, in which case an amount less than full-time is authorized by the department pursuant to 39-51-2115, MCA;

(b) the claimant has submitted to the department an of assessment of a physical or mental disability from a licensed and practicing health care provider, certified and signed by the provider, of appropriate, less than full-time work hours for the claimant; or

(c) the department has determined that part-time work is the only suitable work in the claimant's labor market area.

(3) The department shall determine a claimant to be available for work when the claimant is willing and able to accept an offer of suitable work for a minimum of three days in a benefit week if those days are normal days of work in the claimant's customary occupation.

(4) The department shall determine a claimant to be actively seeking work when the claimant is making an active, good faith effort to secure insured work during each week for which the claimant requests payment of benefits or waiting week credit.

(5) The department shall determine a claimant to be ineligible for benefits when, without good cause, the claimant:

(a) fails to participate in a scheduled job interview;

(b) fails to provide information requested by the department within eight days of the date of a mailed, faxed, telephoned, or electronic request;

(c) withdraws from the labor market, temporarily or permanently, because of, among other reasons:

(i) a self-imposed limitation, such as an unrealistic wage or hour restriction or refusal to travel, that curtails claimant's ability to seek or accept suitable work;

(ii) a temporarily disabling health condition that prevents claimant from being able to perform suitable work;

(iii) an employer-approved leave of absence; or

(iv) the claimant is residing in, or is traveling to or in a foreign country, which, for the purposes of this rule, means any country other than the United States of America, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, or Canada; or

(v) failure by claimant to actively seek or accept suitable work due to family care-giving obligations, vacation, incarceration, lack of transportation, or any other reason.

(6) The department may determine a claimant to be ineligible for benefits when, without good cause, the claimant failed to provide the department with updated contact information within three days of a change to the claimant's mailing address. Upon receipt of the updated mailing address, the claimant's eligibility must be reinstated by the department.

(7) The department may allow benefits to be paid to a claimant who resides in or travels to a foreign country that has executed a reciprocal agreement with the United States government regarding unemployment insurance.

(8) Except as provided in (a), an eligibility decision for a discharge or a claimant leaving work is effective the week of the last date of work.

(a) If the separating action occurs after the last date of work but prior to the next regularly scheduled shift, the separation is effective the latter of:

(i) the week of the separating act;

(ii) the week the claim was filed or reactivated; or

(iii) the week payment request is filed.

(b) Effective dates of separation decisions concerning valid notice are determined under ARM 24.11.454A.

This rule has been repealed.

(1) The department shall determine a claimant is making an active, good faith effort to secure insured work when the claimant reports at least one valid work search during the week for which payment of benefits or waiting week credit is requested.

(2) A valid work search contact:

(a) requires a claimant to:

(i) directly contact an employer or an authorized agent of an employer who hires workers in the claimant's occupation(s);

(ii) possess the prior work experience, knowledge, skills, and abilities to qualify for the specific job opening;

(iii) complete a job application or submit a resume that enables the employer to contact the claimant to arrange an interview or to commence employment;

(iv) make the work search contact in person, unless the normal method of applying for work in the industry or occupation is submission of an application or resume by mail, internet, or facsimile; and

(v) make a work search contact with a different employer, or if for the same employer, for a different position, for each consecutive week; or

(b) requires a claimant to register for work at a temporary employment agency.

(3) A valid work search does not include:

(a) seeking self-employment;

(b) working as an independent contractor; or

(c) reporting part-time work.

(4) The claimant shall report at least one work search contact to the department in the designated section of the claimant's weekly payment request form, whether filing online, by mail, e-mail, or facsimile. Failure to provide a valid work search contact for a week or failure to answer fully all questions related to a work search contact may result in the denial of benefits.

(5) The claimant shall retain all work search contact information necessary for verification by the department. The department may request the following work search contact information for the claimant's benefit year:

(a) date of the work search contact;

(b) name of the employer;

(c) name of the employer's contact person or employer's web address (URL);

(d) telephone number of employer;

(e) position applied for by claimant;

(f) result of the work search contact;

(g) copy of confirmation of receipt of application or resume by the employer for an online application; and

(h) copy of job advertisement in newspaper or trade magazine, when applicable.

(6) The department may exempt a claimant from the requirement to complete work search contacts and retain work search documentation when the claimant is:

(a) job attached;

(b) union attached; or

(c) engaged in state-approved training, pursuant to ARM 24.11.475 or 24.11.476.

(7) The department may deny benefits and determine that a claimant must pay back previously paid benefits when a claimant fails to:

(a) complete required work search contacts;

(b) fully report work search contacts on weekly payment request forms;

(c) provide documentation of work search contacts upon department request;

(d) participate in the Benefits Accuracy and Measurement audit authorized by ARM 24.11.470; or

(e) participate in the Eligibility Review Program authorized by ARM 24.11.471.

This rule has been repealed.

(1) Following a worker's notice of intent to leave work, the department shall impute the reason for the separation in the following manner.

(a) If a worker's notice of intent to leave work is valid, the department shall consider the worker to have left work voluntarily as of the date identified by the valid notice.

(i) If the employer requires the worker to leave work prior to the worker's intended last day, the worker may qualify for benefits of limited duration, not to exceed four weeks.

(ii) The benefits of limited duration terminate on the date identified in the worker's valid notice, unless the worker shows good cause for leaving work, pursuant to 39-51-2302, MCA.

(iii) Benefits of limited duration occurring at the beginning of a claim will be charged against an employer's account if the employer is a base period employer.

(iv) Benefits of limited duration will not be granted if the employer ended the employment relationship prior to the worker's intended last day due to misconduct committed by the worker after notice was given.

(b) If a worker attempts to retract a valid notice of intent to leave work and the employer does not accept the retraction, the department shall consider the worker to have voluntarily left work.

(c) If a worker's notice of intent to leave work was not valid, the department shall consider the worker to have been discharged by the employer.

(2) Following an employer's notice of intent to terminate a worker, the department shall impute the reason for the separation in the following manner:

(a) when an employer's notice of termination is valid, the department shall consider the worker to have been discharged, regardless of whether the worker left work voluntarily prior to the intended date of termination;

(b) when an employer attempts to retract a valid notice of termination and the worker does not accept the retraction, the department shall consider the worker to have been discharged; or

(c) when an employer's notice of termination is not valid and the worker left solely in response to the invalid notice, the department shall consider the worker to have left work voluntarily.

(3) The department shall consider a worker to have constructively quit employment in the following circumstances:

(a) when an employer discharges a worker for an act or omission that made it impracticable for the employer to utilize the worker's services and the worker knew or should have known that the act or omission would jeopardize the worker's job and likely result in discharge; or

(b) when a worker fails to meet specified conditions of employment, which may include but are not limited to:

(i) failure to meet license or permit requirements for employment; or

(ii) failure to maintain insurability.

(4) When a worker and an employer agree to temporary employment, the department shall consider the worker to have been laid off due to lack of work when:

(a) the worker completes the assigned work;

(b) a previously agreed upon verbal or written contract ends;

(c) the employer no longer has the same work available to the worker; or

(d) the worker has been hired by a client company of the employer as a result of a verbal or written employment agreement.

(1) Pursuant to 39-51-2304, MCA, a claimant is disqualified for benefits if the claimant fails without good cause to:

(a) apply for available and suitable work when directed to do so by the employment office or the department; or

(b) accept an offer of suitable work which the individual is physically able and mentally qualified to perform.

(2) When a claimant is authorized by the department to limit a work search to part-time work, the department may not disqualify the claimant for refusing to apply for or accept full-time work but may disqualify the claimant for refusing to apply for or accept suitable part-time work.

(a) the employer has a written workforce reduction plan or policy that allows an employee to volunteer to be laid off due to a lack of work;

(b) the layoff is due to a lack of work; and

(c) the employer identifies the claimant as an individual subject to the layoff.

(1) The department shall determine a claimant left work with good cause attributable to employment when:

(a) the claimant had compelling reasons arising from the work environment that caused the claimant to leave; and the claimant:

(i) attempted to correct the problem(s) in the work environment; and

(ii) informed the employer of the problem(s) and gave the employer reasonable opportunity to correct the problem(s);

(b) the claimant left work that the department determines to have become unsuitable pursuant to ARM 24.11.485; or

(c) the claimant left work within 30 days of returning to state-approved training, in accordance with ARM 24.11.475.

(2) The term "compelling reasons" as used in this rule includes but is not limited to:

(a) undue risk, as compared to work in similar occupations or industries, of injury, illness, physical impairment, or reasonably foreseeable risks to the claimant's morals;

(b) unreasonable actions by the employer concerning hours, wages, terms of employment or working conditions, including, but not limited to, reductions of 20 percent or more in the claimant's customary wages or hours;

(c) a condition underlying a workers' compensation or occupational disease claim for which liability has been accepted by a workers' compensation insurer. If the condition is one for which liability has not been accepted by the workers' compensation insurer, the department shall independently evaluate the condition to determine whether the condition appears to result from the claimant's employment. If the condition appears to the satisfaction of the department to be work related, the department shall consider the condition to provide a compelling reason for leaving work; or

(d) unreasonable rules or discipline by the employer so severe as to constitute harassment.

(1) The department may determine a claimant who is engaged in self-employment to be eligible for benefits under 39-51-2115, MCA, or ARM 24.11.452A when the claimant is able, available for, and actively seeking suitable insured work and is willing to accept an offer of or a referral to suitable insured work, even if acceptance of the offer of work would require the claimant to forego all or a part of the self-employment venture.

(1) When the department obtains information that leads the department to believe that a claimant, or the claimant's agent, made a false statement or representation, or failed to disclose a material fact in order to obtain or increase benefits, the department shall: 

(a) conduct an investigation;

(b) provide notice to the claimant regarding the information obtained during the investigation;

(c) provide the claimant eight days' time to respond to the information;

(d) issue a determination whether or not benefits were obtained or increased as the result of the false statement or representation, or failure to disclose a material fact;

(e) send written notification of that determination and of the number of weeks of disqualification, if any, imposed pursuant to 39-51-3201, MCA; and

(f) provide appeal rights. The claimant may appeal the determination as to:

(i) the finding that the claimant made a false statement or representation, or failed to disclose a material fact;

(ii) the number of weeks of disqualification imposed; or

(iii) both.

(2) The department shall apply the following when analyzing whether a false statement or misrepresentation was made:

(a) A claimant will be determined to have made a false statement or representation knowing it to be false in order to obtain or increase benefits only upon a finding supported by a preponderance of the evidence that:

(i) the claimant, or the claimant's agent, personally made the statement or representation in question;

(ii) the claimant, or the claimant's agent, knew that the statement or representation was false; and

(iii) the statement or representation was made in connection with the claimant's claim for benefits and was material to a determination of the claimant's benefit entitlement.

(b) Any determination, redetermination, or decision finding that a claimant made a false statement or representation knowing it to be false in order to obtain or increase benefits must specifically cite the evidence in support of each conclusion reached under (2)(a)(i), (ii), and (iii).

(3) The department shall apply the following when analyzing whether there was a failure to disclose a material fact:

(a) A claimant will be determined to have knowingly failed to disclose a material fact in order to obtain or increase benefits only upon a finding supported by a preponderance of the evidence that:

(i) the claimant, or the claimant's agent, had knowledge of the fact in question;

(ii) the fact in question was material to a determination of the claimant's benefit entitlement;

(iii) the claimant, or the claimant's agent, failed to disclose the fact in question; and

(iv) the claimant, or the claimant's agent, knew that the fact in question was required to be disclosed to the department for the proper administration of the claim.

(b) Any determination, redetermination, or decision finding that a claimant knowingly failed to disclose a material fact in order to obtain or increase benefits must specifically cite the evidence in support of each conclusion reached under (3)(a)(i), (ii), and (iii).

(4) The number of weeks of disqualification imposed pursuant to 39-51-3201(1)(a), MCA, is determined as follows:

(a) for each week relative to which a claimant has been determined to have made a false statement or representation, as provided in (2), or failed to disclose a material fact, as provided in (3), not involving a separation from work, two weeks of disqualification are imposed;

(b) for each week relative to which a claimant has been determined to have made a false statement or representation, as provided in (2), or failed to disclose a material fact, as provided in (3), involving a separation from work, six weeks of disqualification are imposed;

(c) an additional eight weeks of disqualification are imposed for each determination, redetermination, or decision, dated within three years of the date of the department's determination under (a) or (b), that imposed a disqualification for any number of weeks pursuant to 39-51-3201(1)(a), MCA; and

(d) any weeks of disqualification imposed as provided in (a) and/or (b) must be imposed for each determination and served consecutively, not concurrently.

(5) A week is counted as a week of disqualification for the purposes of 39-51-3201(1)(a), MCA, only if:

(a) the claimant has filed a weekly payment request for the week;

(b) the claimant is otherwise eligible for and qualified to receive benefits for the week;

(c) the week has not been used to satisfy the waiting period requirement imposed by 39-51-2104(1)(c), MCA; and

(d) the maximum benefit amount for the benefit year in which the week begins, as determined in accordance with 39-51-2204, MCA, has not been exhausted.

This rule has been repealed.

This rule has been repealed.

(1) While misconduct usually occurs during the claimant's normal working hours, "off-duty" conduct may constitute misconduct if it meets the criteria in 39-51-201, MCA, and if such conduct:

(a) significantly and adversely affects the claimant's ability and capacity to perform job duties; and

(b) significantly and adversely affects the employer's business to a substantial degree.

(2) The connection between the misconduct and its effect on the employer's business must be reasonable and discernible. Speculation as to adverse effect upon the employer's business is not sufficient.

(3) The employer must demonstrate by a preponderance of the evidence that the off-duty conduct significantly affected the employment relationship.

(1) A claimant will not be disqualified for benefits under this chapter solely for the reason that the claimant is denied work or continuation of work for refusing to submit to a polygraph test or any form of a mechanical lie detector test, or on the basis of the results of any such test.

(2) A claimant will not be disqualified for benefits under this chapter solely for refusal to submit to drug or alcohol testing required by an employer or prospective employer, or on the basis of the results of such a test, unless the testing procedures fully comply with federal drug and alcohol testing statutes and regulations applicable to private sector workers, or the provisions of the Workforce Drug and Alcohol Testing Act found in Title 39, chapter 2, MCA.

(3) For the purposes of the Workforce Drug and Alcohol Testing Act, an unemployment insurance benefits hearing is a legal action in which the results of a drug or alcohol test may be introduced, provided that the results and testimony about the results are protected from public disclosure.

(a) "Non-professional" means services in other than a professional capacity.

(b) "Professional" means services in an instructional, research or principal administrative capacity.

(i) Individuals who perform services in an instructional capacity include not only those who teach in formal classroom and seminar situations, but also in less formal arrangements, such as tutorial relationships, and those who direct or assist students in research and learning.

(ii) Individuals who perform services in a research capacity include those who direct a research project and those staff directly engaged in gathering, correlating, and evaluating information and making findings.

(iii) Individuals who perform services in a principal administrative capacity include school principals, school superintendents, officers of the institution, the board of directors, business managers, deans, associate deans, university public relations directors, comptrollers, development officers, chief librarians, registrars, and any individuals who, although they may lack official titles, actually serve in a principal administrative capacity.

(c) "Reasonable assurance" means:

(i) as it relates to the probability of performing services in the next academic year or term, that there is a written, oral or implied agreement that the worker will perform services in the same capacity in the next academic year or term. However, reasonable assurance does not exist if the economic terms and conditions are substantially less than the economic terms and conditions of the job in the previous academic year or term.

(A) A worker who performed services in the first of any two academic years or terms for an educational institution is considered to have reasonable assurance of performing services in the same capacity for that educational institution in the second academic year or term, regardless of whether the worker is required to reapply for a position, the worker has advised the institution of the worker's intention not to return to work in the subsequent academic year or term, or the educational institution has advised the worker or the department that employment in the next academic year or term is contingent upon adequate funding or enrollment, unless:

(I) the worker has been given unequivocal notice that the worker will not be rehired for the subsequent academic year or term;

(II) the department determines that there is not a pattern, either as to the particular worker or as to the class of workers to which the worker belongs, of such notice being followed by subsequent reemployment by the educational institution; and

(III) the department determines that there is not substantial evidence of a continuing work relationship between the worker and the educational institution during the period between first and subsequent academic years or terms, including but not limited to, the continuance of employee benefits during the period.

(B) A worker who performed services in the first academic year or term for an educational institution is considered to have reasonable assurance of performing services in the same capacity for another educational institution in the subsequent academic year or term if the worker has been given a bona fide offer, whether or not accepted by the worker, of a specific job in the same capacity as the services performed in the first academic year or term by an individual with the authority to make such an offer on behalf of the educational institution.

(ii) as it relates to the probability of performing services following a customary vacation break or holiday recess, that there is a written, oral or implied agreement that the worker will perform services in any capacity, professional or non-professional, following a customary vacation break or holiday recess. In the absence of substantial evidence to the contrary, a worker who performed services for an educational institution immediately preceding a customary vacation break or holiday recess will be considered to have reasonable assurance of performing services in some capacity for an educational institution in the period immediately following the vacation break or holiday recess.

(d) "Same capacity" means that the work offered is in the class of capacity, either professional or non-professional, of the service performed in the first academic year or term.

(2) A worker who is initially determined not to have reasonable assurance will be denied benefits between academic years or terms and during customary vacation periods and holiday recesses within terms from the point forward that the worker is determined to have subsequently received reasonable assurance.

(3) Workers at educational institutions or educational service agencies who customarily work for the educational institution or educational service agency during the period between academic years or terms or during customary vacation periods or holiday recesses within terms are not subject to the provisions of 39-51-2108 , MCA.

(4) If the claimant's benefits are based on services in a professional capacity and the claimant was previously determined to have reasonable assurance, but continues to be unemployed when school commences, the claimant may be allowed benefits from the date the offer of employment was withdrawn or from the date the claimant was given reasonable assurance if it is determined that the original offer of employment was not a bona fide offer.

This rule has been repealed.

(a) "Grade or class of workers" means:

(i) workers who are members of a particular bargaining unit; or

(ii) workers whose jobs are similar or integrated or who have substantial mutual interests or similarities in wages, hours, and other conditions of work.

(b) "labor dispute" means any controversy concerning terms, tenure, or conditions of work or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of work, regardless of whether the disputants stand in the proximate relation of employer and employee.

(c) "strike" means a concerted cessation of work by workers in an effort to obtain or to resist some change in conditions of work.

(2) A worker is considered to be participating in the labor dispute at the factory, establishment or other premises where the worker was last working that caused a strike, as provided in 39-51-2305 (1) , MCA, if the worker:

(a) is picketing, refusing to cross a picket line, or refusing to report for work; or

(b) is a member of a bargaining unit that voted to authorize the strike.

(3) A worker is considered to be financing the labor dispute at the factory, establishment or other premises where the worker was last working that caused a strike, as provided in 39-51-2305 (1) , MCA, if the worker, or the union of which the worker is a member, has contributed time or money directly or through any special assessment in an attempt to affect the outcome of the labor dispute, further the objectives of the strike, or provide aid or support to the union involved in the labor dispute or to the workers participating in the strike.

(4) A worker is considered to be directly interested in the labor dispute at the factory, establishment or other premises where the worker was last working that caused a strike, as provided in 39-51-2305 (1) , MCA, if:

(a) the labor dispute involves one or more of the terms or conditions of the employment agreement under which the worker was working at the time of the commencement of the strike; or

(b) the resolution of the labor dispute may reasonably be expected to affect the wages, hours, or other workers' conditions of work.

(5) The factors enumerated in (2) , (3) , and (4) are not exhaustive and, therefore, other circumstances not contemplated in this rule may be found by the department to constitute participation in a labor dispute or direct interest in a labor dispute or financing of a labor dispute strike by a worker, if such a finding is supported by a preponderance of the evidence and as a matter of law.

(6) (a) The department will determine that a labor dispute was caused by an employer's violation of law pertaining to collective bargaining, as provided in 39-51-2305 , MCA, if the strike that exists because of the labor dispute is found, by a state or federal agency or court with jurisdiction to make such a finding, to have been, from its inception, an unfair labor practice strike. If the strike is found to have been converted into an unfair labor practice strike, a worker disqualified pursuant to 39-51-2305 (1) , MCA, will remain disqualified until the end of the week during which the conversion is found to have occurred.

(b) The department will determine that a labor dispute was caused by an employer's violation of law pertaining to hours, wages, or other conditions of work if:

(i) the strike that exists because of the labor dispute is found, by a state or federal agency or court with jurisdiction to make such a finding, to have been caused by the employer's violation of state or federal law pertaining to hours, wages, or other conditions of work; or

(ii) the employer is found, by a state or federal agency or court with jurisdiction to make such a finding, to have violated state or federal law pertaining to collective bargaining, hours, wages, or other conditions of work and, in the absence of any finding by the agency or court as to whether the violation was the cause of the strike, the department determines that the violation was the cause in fact and proximate cause of the strike that exists because of the labor dispute.

(7) If no violation of law is found as described under (6) above, a worker disqualified pursuant to 39-51-2305 , MCA, will remain disqualified until the end of the week in which:

(a) (i) the strike is abandoned; and

(ii) the worker, or the union of which the worker is a member, makes an unconditional offer to return to work; or

(b) there has been a complete and bona fide termination of the work relationship between the worker and the employer. The permanent replacement of a striking worker will be considered to constitute a complete and bona fide severance of the work relationship between the worker and the employer only upon a final determination by a state or federal agency or court with jurisdiction to make such a determination that the worker has no rights of reinstatement.

This rule has been transferred.

This rule has been transferred.

This rule has been transferred.

(1) A claimant held ineligible for benefits under 39-51-2111, MCA, may requalify for benefits by immediately leaving the abusive situation.

(2) The department may accept information from the claimant or other agencies, such as law enforcement or domestic violence shelters, documenting that the claimant has left the abusive situation. Documentation may include any of the following:

(a) a statement by the claimant that they have ended the relationship and the furnishing of a new mailing address and the date of the move;

(b) documentation from a law enforcement agency that the abusive individual is incarcerated;

(c) documentation from a domestic violence shelter indicating the claimant has been granted residence at the shelter; or

(d) other evidence, subject to verification by the department, establishing that the claimant has left the abusive situation.

(1) The department operates a quality control program that gathers statistics by investigating claims on a random selection method. The purpose of the quality control program is to identify and recommend solutions to problems in the benefits system. If selected, a claimant must participate in the program to remain eligible for benefits.

(2) This program includes, but is not limited to:

(a) a review of the weekly payment request forms;

(b) a personal interview with the claimant by department personnel; and

(c) verifications of wages, statements, and work search contacts.

(1) The department has established reemployment assistance programs to help individuals return to work. The programs review a claimant's eligibility and provide reemployment services. Any claimant may be selected to participate in one of these programs. Upon selection, the department will send a claimant written notice to report for an appointment at a designated job service office.

(2) A claimant may be denied benefits if the claimant fails to:

(a) report to the job service office at the scheduled time;

(b) notify the office and reschedule the interview; or

(c) comply with appointment requirements.

(1) For purposes of this rule, a "pension" means pension payments, retirement benefits, retirement pay, annuity, or similar periodic payment made to an individual based on previous work. Severance or separation pay is not a "pension" payment.

(2) The department shall reduce a claimant's weekly unemployment benefit by the amount claimant receives or constructively receives from a pension plan that was maintained or contributed to by a base period employer.

(3) When no base period employer contributed to claimant's pension plan, the department shall not reduce a claimant's weekly unemployment benefit by the pension payment.

(4) The department shall presume a claimant made no monetary contribution to claimant's pension plan. A claimant may overcome this presumption by providing written proof to the department demonstrating that claimant made an actual monetary contribution to the pension plan. When a claimant made direct monetary contribution to the pension plan, the department shall not reduce a claimant's weekly unemployment benefit by the pension payment.

(5) The claimant must promptly provide to the department all information requested by the department. Within eight days of claimant's receipt of correspondence from the pension plan administrator concerning claimant's pension entitlement or the amount of claimant's pension payments, claimant must provide the department with copies of the correspondence.

(6) Claimant's base period employer must promptly furnish information related to claimant's pension plan when requested by the claimant, claimant's representative, or the department.

(7) A claimant "constructively" receives a pension payment when:

(a) the claimant or another on behalf of the claimant files an application for pension payments; or

(b) the claimant receives notice from the pension plan administrator of claimant's entitlement to and the amount of pension payments.

(8) The department shall allocate the pension payment, which is actually or constructively received by a claimant, by attributing a fraction of the payment to each week in the following manner:

(a) amount of a monthly pension payment is multiplied by 12 (months) and the result is divided by 52 (weeks);

(b) amount of a quarterly pension payment is multiplied by 4 (quarters) and the result is divided by 52 (weeks); or

(c) amount of an annual pension payment is divided by 52 (weeks).

(9) Social security retirement and social security disability payments are not deductible from unemployment benefits under this rule.

(1) The department may pay benefits to a claimant engaged in a state-approved training program.

(2) The department shall consider the curriculum, facilities, staff and other essentials necessary to insure that a training program has the capacity to achieve the training program's objectives, including appropriate standards and practices regarding satisfactory attendance and performance of trainees. State-approved training programs may include, but are not limited to, the following:

(a) job search workshops;

(b) vocational or technical training, including basic education required as a prerequisite to such training;

(c) vocationally directed academic courses;

(d) job training programs authorized under the Workforce Innovation and Opportunity Act;

(e) training programs designed to upgrade claimant's skills to meet technological or other advances in the claimant's occupational field; or

(f) training programs designed to improve claimant's employability by enhancing claimant's aptitudes or skills for a demand occupation.

(3) The department shall consider the following criteria when determining claimant's qualification for training benefits:

(a) claimant's basic work skills, the lack of which may be demonstrated by a history of repeated periods of unemployment;

(b) claimant's history of recent employment that paid federal or state minimum wage;

(c) claimant's lack of formal vocational training or lack of a marketable degree from an educational institution of higher learning;

(d) the diminished value of claimant's skills in the labor market due to changes in technology or major reductions in the industry in which claimant was employed;

(e) claimant's inability to work in the claimant's customary occupation due to documented, long-term physical or mental disabilities;

(f) claimant's reasonable expectation that training will result in higher wages and more secure employment; and

(g) claimant's reasonable expectation for successful completion of the training program, as demonstrated by:

(i) claimant's interest in and aptitude for the course of study to be pursued; and

(ii) claimant's willingness to commit sufficient time to ensure completion of the training.

(4) For up to 30 days prior to the start of a state-approved training program, the department shall consider a claimant to be in training after the department approves the training application, even though training may not have started.

(5) The department shall not disqualify a claimant under the provisions of 39-51-2302, MCA, when the claimant voluntarily leaves employment within 30 days of resuming participation in a state-approved training program.

(6) Upon the department's written approval of a claimant for a state-approved training program, the department shall notify the claimant of the availability of additional training benefits, pursuant to ARM 24.11.476.

(7) The department shall not charge an experience-rated employer's account, as defined by 39-51-1214, MCA, for benefits paid to a claimant who is qualified to receive benefits under this rule.

(1) "Additional training benefits" are unemployment benefits paid to a claimant who meets the criteria set forth by 39-51-2116, MCA, and is enrolled in a state-approved training program. Additional training benefits become available after claimant has exhausted all regular training benefits approved under ARM 24.11.475.

(2) "State-approved training program" means a program the department determines is reasonably expected to lead to employment for a claimant, as defined by ARM 24.11.475.

(3) The department shall notify claimants of the availability of additional training benefits at the time the department approves claimants' initial unemployment benefits and regular training benefit under ARM 24.11.475. The department encourages claimants to apply to the department for additional training benefits as soon as possible during claimants' benefit year.

(4) To qualify for additional training benefits, claimant must be enrolled in a state-approved training program prior to the end of the benefit year, as defined in 39-51-203, MCA. After the department approves claimant's additional training application, claimant may be considered "in training" for up to 30 days before the start of actual training.

(5) To receive additional training benefits, claimant must remain in good standing with the state-approved training program. The department may require reasonable evidence of claimant's satisfactory training progress, such as reports from training providers and evidence of attendance at training sessions.

(6) The department shall pay additional training benefits for each week that claimant attends training, which include:

(a) breaks within training schedule of less than 30 days; and

(b) partial weeks consisting of at least one day but less than five days of training in one week.

(7) Additional training benefits may not exceed an amount equal to 26 times the claimant's regular weekly benefit amount.

(8) Additional training benefits terminate when the following occurs:

(a) claimant completes the training program;

(b) claimant exhausts the maximum additional training benefits payable;

(c) claimant leaves or is expelled from the training program; or

(d) claimant becomes eligible to file a new, regular unemployment benefits claim at the end of the benefit year.

This rule has been repealed.

(1) For the purposes of this rule, the following definitions apply:

(a) "job prospects" means the likelihood, as determined by the department, of the claimant becoming employed in the claimant's usual occupation in a reasonably short period of time;

(b) "reasonably short period of time" means within four weeks from the end of the week in which a valid claim is filed;

(c) "suitable work," with respect to a claimant whose job prospects are classified as "good," means work which is determined by the department to be suitable under 39-51-2304 , MCA;

(d) "suitable work," with respect to a claimant whose job prospects are classified as "not good," means any work which meets the following criteria:

(i) the work is within the claimant's capabilities;

(ii) the gross average weekly wages for the work exceeds the claimant's extended weekly benefit amount, plus the amount of any supplemental unemployment benefits (as defined in 26 U.S.C. 501(c) (17) (D) of the Internal Revenue Code of 1954, as amended) payable for such week;

(iii) the position does not pay less than the higher of:

(A) the minimum wage provided by section 206(a) (1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206) , as amended, without regard to any exemption; or

(B) any applicable state or local minimum wage;

(iv) the position was offered to the claimant in writing or was listed with an employment office; and

(v) the work would not be determined by the department to be unsuitable under 39-51-2304 (3) , MCA;

(e) "valid claim" means a claim for extended benefits filed by a claimant who is an exhaustee, as defined in 39-51-2501 , MCA, and who meets the qualifying requirements of 39-51-2508 (1) (b) , MCA.

(2) With respect to each claimant who establishes a valid claim for extended benefits, the department will classify the claimant's job prospects as either "good" or "not good" and promptly notify the claimant in writing of its determination. Unless and until the department finds evidence to the contrary, the claimant's job prospects will be deemed to be "not good." The department may, at any time following an initial or subsequent classification and determination of a claimant's job prospects, change the claimant's job prospects classification if it finds that there is sufficient evidence to do so. The department will promptly notify the claimant in writing of its decision to change the classification.

(3) Any employment office located in the claimant's labor market area will refer a claimant who has filed a valid claim for extended benefits to any suitable work which meets the criteria prescribed in this rule.

(1) Claimant shall make a good faith effort to apply for suitable work and shall accept an offer of suitable work. The department shall determine what constitutes suitable work for the claimant and shall expand the definition of suitable work as the period of claimant's unemployment increases.

(2) The department shall allow claimant 13 weeks of paid benefits during which to seek claimant's customary occupation or comparable work to preserve claimant's highest use of skills and earning potential.

(3) To determine whether a claimant is seeking, or has been offered, suitable work, the department shall consider factors including, but not limited to:

(a) prospects for reemployment in claimant's customary occupation or comparable work;

(b) claimant's prior earnings and length of claimant's current unemployment:

(i) during the first half of the benefit entitlement period, work is suitable when it pays the prevailing wage in the locality for claimant's customary occupation or comparable work;

(ii) after 13 weeks of paid benefits, work is suitable when it pays 75 percent of claimant's earnings in prior insured work in claimant's customary occupation; or

(iii) work is not suitable when the offered wage is substantially less favorable to the claimant than the prevailing wage for similar work in the locality;

(c) claimant's prior work experience, training, education, and occupational licensure:

(i) work in related occupations becomes suitable when claimant has no realistic expectation of obtaining employment in an occupation that utilizes claimant's highest skill level; and

(ii) after 13 weeks of paid benefits, suitable work may be in any occupation that claimant worked during the base period or any work claimant can reasonably perform consistent with claimant's past experience, training, and skills;

(d) degree of risk to the claimant's health and safety:

(i) work is not suitable if it presents a risk to claimant's physical or mental health that is greater than the usual risks associated with claimant's customary occupation; or

(ii) work is not suitable if claimant would be required to perform tasks that would cause or substantially aggravate claimant's health problems;

(e) claimant's physical fitness and ability to perform work:

(i) claimant must be able to perform suitable work; and

(ii) work beyond claimant's capacity to perform is not suitable;

(f) working conditions:

(i) work is not suitable that does not pay at least the state or federal minimum wage;

(ii) work is not suitable when the provisions of an employment agreement or physical conditions of work are substantially less favorable than those of similar work in the locality;

(iii) suitable work corresponds with the hours typically worked for similar work in the locality or the hours worked by claimant worked during the base period;

(iv) claimant's convenience or preference for certain work hours does not make otherwise suitable work not suitable;

(v) work may not be suitable when fringe benefits offered, including group health insurance, life insurance, paid personal time off, retirement plans, or severance pay are substantially less favorable than benefits received by claimant during the base period or substantially less than fringe benefits provided for similar work in the locality, whichever is lower;

(vi) work is not suitable when working conditions violate any state or federal law, or the job opening is due to a strike, lockout, or labor dispute; or

(vii) work is not suitable when, as a condition of being employed, claimant is required to join a company union or to resign from or refrain from joining any bona fide labor organization;

(g) part-time work:

(i) when the department has authorized claimant to seek part-time work pursuant to 39-51-2115, MCA, part-time work at the hours authorized by the department may be suitable; or

(ii) when claimant has no recent history of part-time work, such work may be suitable when claimant has been unemployed for an extended period and has no immediate prospect of full-time work;

(h) religious or moral convictions:

(i) claimant may raise a conscientious objection to the department when otherwise suitable work conflicts with a sincerely held religious or moral conviction; and

(ii) claimant bears the burden to show that a conscientious objection to otherwise suitable work is held in good faith; or

(i) distance of available work from the claimant's residence.

(4) Work that was once suitable for claimant may become unsuitable due to circumstances beyond the claimant's or employer's control. When adjudicating a work refusal, pursuant to ARM 24.11.455, or a separation from work, pursuant to ARM 24.11.457, the department shall consider previously suitable work as not suitable when:

(a) claimant has made a good faith effort to comply with licensing requirements or governing regulations but has failed to pass the required course(s) or licensing exam; or

(b) claimant has submitted to the department an individualized determination of work unsuitability due to claimant's physical or mental disability, certified and signed by a health care provider.

(5) Claimant may appeal a department determination of suitable work pursuant to 39-51-2402 and 39-51-2403, MCA. Claimant bears the burden of proof that work is not suitable.

(1) When a claimant files for a week of benefits and reports hours of work equal to or greater than claimant's hours typically worked, the department shall determine that no unemployment exists and pay no benefits for the week.

(2) Failure to accurately report hours and gross wages of insured work may subject the claimant to the penalties of Title 39, chapter 51, part 32, MCA.

(1) A worker is not eligible for benefits while on an employer-approved leave of absence until the leave of absence ends or the worker offers to return to work, whichever occurs first.

(2) A separation from employment as defined in ARM 24.11.204 occurs when either the claimant or the employer determines the claimant is not returning to work for the employer. The separation may be a lay-off if the claimant offers to return to work and no suitable work is available.

(1) A worker is ineligible for benefits during the first two weeks of an unpaid suspension or until the unpaid suspension ends, whichever occurs first. The department shall consider a worker who receives a regular rate of pay during a suspension to be employed.

(2) When an unpaid suspension remains in effect for two weeks, the department shall consider the employer to have discharged the worker.

(3) The department shall determine whether the employer discharged the claimant for misconduct based on evidence provided by the employer, the claimant, and other sources. When the department determines claimant was discharged for reasons other than misconduct, an otherwise qualified individual is eligible for benefits.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(2) Each agent state shall duly report to the liable state in question, each interstate claimant who fails to meet registration or re-employment assistance reporting requirements of the agent state.

(2) For the purposes of this rule, benefit credits are deemed to be unavailable whenever benefits have been exhausted, terminated, or postponed for an indefinite period or for the entire period in which benefits would otherwise be payable, or whenever benefits are affected by the application of a seasonal restriction.

(2) With respect to weeks of unemployment during which an individual is attached to his regular employer, the liable state shall accept as timely any claim which is filed through the agent state within the time limit applicable to such claims under the law of the agent state.

(2) The liable state shall provide interstate claimants with access to information concerning the status of their claims throughout the normal business day.

(2) The agent state's responsibility and authority in connection with the determination of interstate claims shall be limited to the identification of potential issues identified in connection with initial or weeks claimed filed through the agent state and the reporting of relevant facts pertaining to each claimant's failure to register for work or report for re-employment assistance as required by the agent state.

(2) With respect to the time limits imposed by the law of a liable state upon the filing of an appeal in connection with a disputed benefit claim, an appeal made by an interstate claimant shall be deemed to have been made and communicated to the liable state on the date it is received by any qualified officer of the agent state.

(3) The liable state shall conduct hearings in connection with appealed interstate benefit claims. The liable state may contact the agent state for assistance in special circumstances.

This rule has been repealed.

This rule has been transferred.

This rule has been repealed.

This rule has been repealed.

This rule has been transferred.

This rule has been transferred.

This rule has been transferred.

This rule has been transferred.

This rule has been transferred.

(1) Benefit payments are charged to each employer who paid wages to the claimant during the base period. The charge will be based on the percentage of wages the employer paid to the claimant during the base period. For example, if the claimant earned 10 percent of the base period wages working for an employer, that employer would be chargeable for 10 percent of the benefits drawn by the claimant.

(a) If more than one separation of employment exists from the same base period employer, charges or relief of charges will be based on the reason for the most recent separation of employment occurring prior to the effective date of the claim. Any separation of employment occurring after the effective date of a claim will not result in relief of charges on that claim, but may on a subsequent claim, if the reason for separation of employment allows relief of charge.

(b) The department's determination concerning a separation of employment from a base period employer, which subjects the claimant to possible disqualification under provisions of 39-51-2302, 39-51-2303, or 39-51-2305, MCA, will determine if that employer's account will be charged.

(2) An employer has not reduced hours or wages as used in 39-51-1214, MCA, if continued work was available for the same number of hours prior to the date the initial claim was filed as at the time of most recent hire. If the claimant was hired on a part-time basis with no guaranteed hours, no reduction has occurred unless the wages paid or the hours available in the four week period following the filing date of the claim are at least 10 percent less than the wages paid or hours available in the four-week period prior to the filing date of the claim. A reduction for salaried employees is based on a reduction in salary only, not on a reduction in hours.

(3) When the first benefit check is issued, the department mails a "Potential Charge Notice" to the chargeable employer. This notice tells the employer that the benefits paid to the claimant will be charged to the employer's account unless the employer shows that the claimant was fired for misconduct or quit without good cause attributable to employment, pursuant to 39-51-2302 and 39-51-2303, MCA. The explanation of the separation must contain specific details of the separation, including copies of any supporting documents.

(a) As provided in 39-51-1214, MCA, the department reviews the information submitted by the employer and issues a determination notice stating whether the employer should be charged for the claimant's benefits.

(b) An employer has eight calendar days from the date of the notice to respond to the "Potential Charge Notice" and/or "Claim Filing and Potential Charge Notice." If an employer fails to show good cause for delay in responding to either notice, the employer forfeits the right to appeal the department's determination and waives the right to credit for any benefit overpayment that may result, in accordance with ARM 24.11.208.

(c) If the employer provides the department with information that justifies relief of charges, but the employer failed to provide separation information within the time limits of the notice, the department may not relieve the charges to the employer's experience-rated account.

(d) The employer may appeal the department's decision within ten days of mailing the determination as provided in 39-51-2402, MCA.

(4) Within 60 days of the end of each calendar quarter, the department mails to the employer a statement of benefits charged to the employer's account. This statement is the "Quarterly Statement of Benefits Paid" and is for informational purposes only since any appeal must be made from the "Potential Charge Notice" and shows:

(a) the claimant's name and social security number;

(b) the date on which the charges were effective; and

(c) the amount of benefits charged to the employer's account.

(1) The department shall determine an employer forfeited the right to credit for a benefit overpayment whenever the department determines an employer forfeited the right to participate as an interested party and the right to appeal in the adjudication of an unemployment insurance claim, pursuant to 39-51-605, MCA, and ARM 24.11.208.

(2) Unless an employer has forfeited credit for an overpayment pursuant to 39-51-605, MCA, the department immediately credits an experience-rated employer's account if a benefit overpayment occurs. The department shall inform each employer of any credit on the statement of benefits charged to the account.

(3) The employer's account is credited for the amount the account was previously charged for benefits. For example, if the employer was charged for 50 percent of the benefits, the employer would be credited for 50 percent of the overpayment.

(4) Charges to the accounts of governmental entities and employers electing to reimburse the fund will be credited for benefit overpayments in the same manner as experience-rated employers.

(1) Except as provided in ARM 24.11.208, the department shall relieve the charge to an employer's experience-rated account for benefits paid to a claimant who was discharged for misconduct or voluntarily left work without good cause attributable to the employment, in accordance with 39-51-2302 and 39-51-2303, MCA.

(2) The department shall also relieve the charge to an employer's experience-rated account for the benefits paid to a claimant who voluntarily left work for the following reasons:

(a) the department reached an individualized determination that the claimant left work that was unsuitable for the claimant, pursuant to ARM 24.11.485;

(b) the claimant left work within 30 days of resuming a state-approved training program, pursuant to ARM 24.11.475;

(c) the claimant left work or was discharged due to circumstances resulting from domestic violence, sexual assault, or stalking of claimant or claimant's child, pursuant to 39-51-2111, MCA;

(d) the claimant left temporary work, accepted during a period of unemployment, in order to return immediately to work for claimant's regular employer, pursuant to 39-51-2302, MCA;

(e) the claimant left work due to the mandatory military transfer of the claimant's spouse, pursuant to 39-51-2302, MCA; or

(f) the claimant's job was unavailable after claimant was ordered into military service for a period of less than six weeks, pursuant to 39-51-2302, MCA.

(3) The department shall assign the costs of benefits paid to claimants under (2) to the unemployment insurance trust fund.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been transferred.

This rule has been transferred.

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This rule has been transferred.

This rule has been transferred.

This rule has been transferred.

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This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

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This rule has been transferred.

This rule has been transferred.

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This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

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This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(1) Meetings of the Unemployment Insurance Appeals Board, referee's hearings, advisory council meetings, and other meetings involving a significant public interest shall at all times be open to the public.  The following will be deemed of significant public interest to require notice and the availability of a means for public participation in the decision making process of meetings within the division:

(a) The adoption, amendment, or repeal of any regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedures or practice requirements of the division; and

(b) Where the one is of significant public interest or has a significant public impact on previously established standards.  

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(1) Persons desiring information concerning the unemployment insurance program and public participation may contact the Unemployment Insurance Division, P.O. Box 8020, Helena, Montana 59604-8020 or visit the division's web site at www.uid.dli.mt.gov.

(1) Pursuant to the requirements of 20 CFR Part 603, the department shall protect personally identifying information of claimants and employers. Personally identifying information is data that reveals or that could foreseeably be combined with other publicly available information to reveal the name or an identifying particular about an individual, employer, or employing unit.

(2) The department shall bar the disclosure of personally identifying information, except as disclosure is permitted by the informed consent of the identified individual(s) or is required under federal or state law to a public official for use in the performance of official duties or pursuant to a valid subpoena or interagency cooperative agreement.

(3) For the purposes of this rule:

(a) "public official" means an official, agency, or public entity within the executive branch of federal, state, or local government with responsibility for administering or enforcing the law;

(b) "performance of official duties" means the administration or enforcement of law or the execution of the official responsibilities of a federal, state, or local elected official, and includes research related to unemployment insurance law administered by the Legislature or other public officials;

(c) "valid subpoena" means a compulsory legal process by a federal, state, or local official, other than a clerk of court on behalf of a litigant, with authority to obtain personally identifying unemployment insurance information by subpoena under federal or state law; and

(d) "interagency cooperative agreement" means a written data-sharing agreement between the department and a public official.

(4) The department shall require a recipient of personally identifying information to execute a confidentiality agreement with the department to ensure appropriate safeguards against disclosure are maintained, as specified in state and federal law. The department shall require a public official who receives personally identifying information to safeguard the information from redisclosure, unless redisclosure is specifically authorized in writing by the department.

(5) The department shall charge for the cost of any disclosure to a third party other than an "interested party" pursuant to ARM 24.11.207. Costs must be paid in full prior to the release of information. When the disclosure consists of no more than two pages of hard copy information and involves no more than one-half hour of staff time, the department shall make no charge.

(6) Any unauthorized release of protected information will be prosecuted by the department, pursuant to 39-51-603, MCA.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(1) The department shall notify claimants of disqualifications, ineligibilities, and reductions in benefit entitlement that result from:

(a) non-monetary determinations;

(b) appeal decisions, including redeterminations; and

(c) revised monetary determinations.

(2) If a decision or determination described in (1) results in a benefit overpayment, the department shall provide the claimant with separate notice of the amount of benefit overpayment, which the claimant must repay to the department for deposit in the trust fund and unemployment insurance administration account. When the department determines a benefit overpayment occurred as a result of fraud, in accordance with 39-51-3201, MCA, the department shall add a penalty to the overpayment amount due.

(3) A claimant may appeal the non-monetary determination, appeal decision, revised monetary determination or determination of benefit overpayment due to unreported or misreported earnings as provided under 39-51-2402 and 39-51-2403, MCA. The separate benefit overpayment notice may be appealed only as to the accuracy of the amount of the benefit overpayment.

(4) Any benefit overpayment must be repaid to the department, regardless of the cause of the benefit overpayment, unless the department waives recovery of the benefit overpayment in accordance with ARM 24.11.1207.

(1) For the purposes of this rule:

(a) "assets" include, but are not limited to:

(i) cash on hand;

(ii) bank, credit union, savings and loan, and brokerage accounts;

(iii) securities, excluding those held as part of a qualified retirement plan;

(iv) cash-value insurance policies;

(v) real and personal property, excluding the claimant's primary residence and one primary vehicle.

(b) "average monthly cash flow" means six times the amount obtained by subtracting average monthly expenses from average monthly income, even if the amount is less than zero.

(c) "average monthly expenses" means the amount of all necessary and allowed expenses, converted to a monthly basis if not incurred in that manner, incurred by the claimant at the time of the claimant's request for a financial hardship waiver.

(d) "average monthly income" means the amount of all income, converted to a monthly basis if not paid in that manner, accruing to the claimant at the time of the claimant's request for a financial hardship waiver.

(e) "income" includes, but is not limited to:

(i) wages, salaries, and commissions;

(ii) interest and dividends;

(iii) net business proceeds;

(iv) rents;

(v) pensions;

(vi) disability payments; and

(vii) alimony.

(f) "necessary and allowable expenses" are limited to:

(i) rent or mortgage payments;

(ii) insurance, taxes, utilities, basic phone service;

(iii) groceries and household supplies for a primary residence, but not to exceed $300 per month for the claimant and $100 per month for each of the claimant's dependents that reside in the claimant's household;

(iv) medical expenses not paid by insurance;

(v) loan payments, insurance, and expenses for a primary vehicle;

(vi) work-related child and disabled dependent care expenses;

(vii) child support payments; and

(viii) alimony or maintenance payments.

(2) Upon written notice from the department that claimant received an overpayment, a claimant may submit a written request asking the department to waive recovery of the benefit overpayment as provided in 39-51-3206, MCA.

(3) The department may waive recovery of all or a portion of a benefit overpayment that occurred through no fault of the claimant and involved no fraud as defined in ARM 24.11.1209, when one or more of the following circumstances exist:

(a) recovery of the benefit overpayment would cause a long-term financial hardship on the claimant, as outlined in (5);

(b) benefit overpayment was the result of an incorrect monetary determination by the department due to minor errors in employer reporting;

(c) benefit overpayment resulted from department failure to consider relevant written documentation provided in a timely manner by a claimant, employer, or third party prior to the department's determination or redetermination; or

(d) benefit overpayment resulted from claimant's reliance upon erroneous written information provided by department.

(4) Benefit overpayment does not constitute department error when the implementation of new state or federal law requires the department to revise a claimant's state benefit claim or monetary determination and to reduce or deny benefits retroactively.

(5) No sooner than six months after a notice of benefit overpayment, claimant may seek a financial hardship waiver by providing specific financial information to the department. The department shall determine whether recovery of the benefit overpayment would cause a long-term financial hardship on the claimant, as provided in (3)(a), using the following process:

(a) the claimant requesting a financial hardship waiver shall provide the department documentation of monthly household income, assets, and expenses on a form provided by the department and may be required to provide further information if needed for the department's determination. The department may require verification of any financial information provided. The department may also disallow or adjust any claimed expenses that the department deems to be unreasonably excessive.

(b) the department shall determine recovery of the benefit overpayment to cause a long-term financial hardship on the claimant when the department finds:

(i) the sum of the claimant's average monthly household cash flow and the net value of the claimant's household assets equals an amount less than the identified amount of the benefit overpayment; and

(ii) no evidence demonstrates that the sum of claimant's average household monthly cash flow and net value of the claimant's household assets are likely to exceed the amount of the benefit overpayment within 12 months of the date of the claimant's request for waiver.

(6) After consideration of a claimant's request for waiver, the department shall notify the claimant of the decision to grant or deny the request and of the claimant's right to appeal under 39-51-2402 and 39-51-2403, MCA.

(7) A claimant whose request for a financial hardship waiver has been denied may submit a new request for waiver when claimant's financial situation has significantly changed since the denied request was filed.

(8) Repayment of a benefit overpayment by offset of benefits shall continue from the date claimant's written request for waiver is received by the department until the department's decision becomes final. When the final decision approves claimant's request for waiver, the department shall reimburse claimant for repayments collected after the date the claimant's written request for waiver was received by the department.

(1) A "fraudulent benefit overpayment" is a benefit overpayment created as the result of a disqualification, ineligibility, or reduction in benefit entitlement imposed on the basis of information not previously known by the department due to the claimant’s false statement or representation or failure to disclose a material fact in order to obtain or increase benefits.

(2) The penalty referred to in 39-51-3201, MCA, for the first offense is 50 percent of the fraudulent benefit overpayment. The amount required to be repaid to the department will be an amount equal to the fraudulent benefit overpayment plus the penalty.

(1) When a claimant offers to compromise an overpayment debt pursuant to 39-51-3206, MCA, by making a lump-sum payment of over 50% of the amount due, the department will accept or reject the offer based on the circumstances or reason for the overpayment, the overpayment balance, and how long it would take to recover the debt with just monthly payments.

(2) The department's determination to accept or reject an offer in compromise is final and not subject to further review or appeal. This does not preclude a claimant from presenting, or the department considering, another offer in compromise that is substantially different from a prior rejected offer.

(3) Upon acceptance of an offer in compromise, the department will suspend collection efforts on the overpayment and send the claimant an agreement outlining the terms of the compromise and the statutory condition upon which forgiveness of the remainder of the overpayment debt is dependent. The claimant must sign the agreement and return it to the department within 10 days.

(4) The claimant must make the lump-sum payment to the department in full, either by money order or cashier's check, within 60 days of signing the agreement. The department may extend this period for up to 30 days for good cause. If the lump-sum payment is not received by the due date, the compromise agreement is null and void and the department will resume its collection efforts immediately.

This rule has been repealed.

(a) Send the recovering state a written request for overpayment recovery assistance which includes:

(i) certification that the overpayment is legally collectable under the requesting state's law;

(ii) certification that the determination is final and that any rights to postponement of recoupment have been exhausted or have expired;

(iii) a statement as to whether the state is participating in cross-program offset by agreement with the U.S. secretary of labor; and

(iv) a copy of the initial overpayment determination and a statement of the outstanding balance;

(b) Send notice of this request to the claimant; and

(c) Send to the recovering state a new outstanding overpayment balance whenever the requesting state receives any amount of repayment from a source other than the recovering state, including such events as the interception of tax refund or other state-issued payment.

(2) The recovering state shall:

(a) Issue an overpayment recovery determination to the claimant which includes at a minimum:

(i) the statutory authority for the offset;

(ii) the name of the state requesting recoupment;

(iii) the date of the original overpayment determination;

(iv) the type or basis of the overpayment, such as fraud or non-fraud;

(v) program type, such as state unemployment insurance, unemployment insurance for federal employees, unemployment insurance for former members of the armed services, trade readjustment, etc.;

(vi) total amount to be offset;

(vii) the amount to be offset weekly; and

(viii) the right to request redetermination and appeal of the determination to recover the overpayment by offset;

(b) Offset benefits payable for each week claimed in the amount determined under state law;

(c) Provide the claimant with a notice of the amount offset;

(d) Prepare and forward, no less than once a month, a check representing the amount recovered made payable to the requesting state, except as provided in ARM 24.11.1228; and

(e) Retain a record of the overpayment balance in its files no later than the exhaustion of benefits, end of the benefit year, exhaustion or end of an additional or extended benefits period, or other extensions of benefits, whichever is later.

(3) The recovering state shall not redetermine the original overpayment determination.

(a) Offset any outstanding overpayment in a transferring state(s) prior to honoring a request from any other participating state under this arrangement.

(b) Credit the deductions against the statement of benefits paid to combined wage claimants (form IB-6) , or forward a check to the transferring state as described in ARM  24.11.1225(2) (d) .

(2) Withdrawal of a combined wage claim after benefits have been paid shall be honored only if the combined wage claimant has repaid any benefits paid or authorizes the new liable state to offset the overpayment.

(3) The paying state shall issue an overpayment determination and forward a copy, together with an overpayment recovery request and an authorization to offset, with the initial claim to the liable state.

(4) The recovering state shall:

(a) Offset the total amount of any overpayment, resulting from the withdrawal of a combined wage claim, prior to the release of any payments to the claimant;

(b) Offset the total amount of any overpayment, resulting from the withdrawal of a combined wage claim prior to honoring a request from any other participating state under this arrangement;

(c) Provide the claimant with a notice for the amount offset; and

(d) Prepare and forward a check representing the amount recovered to the requesting state as described in ARM 24.11.1225(2) (d) .

This rule has been repealed.

(2) Failure to properly register does not relieve an employer from reporting and remitting unemployment insurance tax.

(2) Legal entity forms include, but are not necessarily limited to a:

(a) sole proprietorship;

(b) partnership, pursuant to the provisions of Title 35, chapter 10, MCA;

(c) limited partnership, pursuant to Title 35, chapter 12, MCA;

(d) corporation, pursuant to Title 35, chapters 1 through 4 and chapter 9, MCA;

(e) member-managed limited liability company, pursuant to Title 35, chapter 8, MCA;

(f) manager-managed limited liability company, pursuant to Title 35, chapter 8, MCA;

(g) member-managed limited liability partnership, pursuant to Title 35, chapter 10, MCA;

(h) manager-managed limited liability partnership, pursuant to Title 35, chapter 10, MCA; and

(i) governmental unit.

(3) An employer that attempts to form or operate as an entity other than a sole proprietorship will not be treated as such until the employer complies with Montana law regarding creation and/or maintenance of that entity form.  As an example, if two individuals intend to form a limited liability company but fail to properly do so, the individuals will be treated as partners for unemployment insurance purposes.  In general, two or more individuals owning a business and functioning as an employer are deemed to be in a partnership and have joint and several liability for unpaid unemployment insurance contributions.

(4) An employer that changes its legal entity form must promptly report to the department the date of the change and identify its new entity form.

(5) The department may require an employer to document its legal entity form.

(2) An employer licensed pursuant to Title 39, chapter 8, MCA, as a "professional employer organization" or as a "professional employer group" (collectively known as a "PEO") must identify itself as a PEO when registering with the department and establishing an unemployment insurance account.

(2) An employer that has notified the department it has ceased to employ is removed from the department's record of active employers.

(3) The quarterly report and payment for the final quarter wages as were paid must be filed with the department within 30 days if the employer:

(a) quits doing business;

(b) sells or transfers the business, or the major portion of the business assets; or

(c) becomes insolvent.

(1) An experience-rated employer is a private employer whose contribution rate is based on the experience rating record of each business operated by the employer and the rate classification assigned to the employer under the contribution rate schedule.

(2) The contribution rate for each experience-rated employer is calculated by:

(a) determining the employer's experience factor;

(b) comparing that experience factor to the experience factors of all other employers; and

(c) assigning the employer a rate classification within the contribution rate schedule.

(3) The experience factor as defined in 39-51-1213 , MCA, is computed by subtracting the benefits charged to the employer's account since October 1, 1981, from the amount of contributions paid by the employer since October 1, 1981. This is the "reserve." The reserve is then divided by the average annual taxable payroll for the last three fiscal years. The resulting ratio is the experience factor, also known as the reserve ratio. The following equations show how the experience factor is calculated:

            Contributions paid - Benefit charges = Reserve

          Reserve / Average taxable payroll = Experience Factor

(a) Each experience-rated employer is assigned a rate classification on the contribution rate schedule depending upon the employer's experience factor.

(b) Experience-rated employers are divided into three categories: eligible, new, and deficit employers. Each category is defined in 39-51-1121 , MCA.

(4) On or before April 1 of each year, the department mails rate notices to employers. The type of notice depends upon whether the employer is:

(a) an eligible employer;

(b) a deficit employer;

(c) a new employer; or

(d) an employer with past due reports, taxes, penalties or interest.

(5) Eligible employers and deficit employers who do not have delinquent accounts are sent a rate notice with the following information:

(a) employer's taxable wages from the three fiscal years immediately preceding the computation date;

(b) amount of all contributions paid from October 1, 1981, through the computation date;

(c) amount of benefits charged to the account since October 1, 1981, through the computation date;

(d) average taxable wages for the last three fiscal years;

(e) employer's reserve and reserve ratio;

(f) tax rates for the current year; and

(g) taxable wage base for the current year.

(6) New employers who do not have delinquent accounts are sent a rate notice with the following information:

(a) tax rates for the current year; and

(b) taxable wage base for the current year.

(7) If all past due reports, taxes, penalties and interest are satisfied within 30 days of the date of mailing the rate notice, the employer's deficit, eligible, or new computed contribution rate is reinstated. The department sends the employer a revised contribution rate notice.

(8) The rate notice is final unless the employer files a written request for a redetermination within 30 days of mailing the rate notice. The request for redetermination must explain why the employer believes the assigned contribution rate is incorrect.

(9) If, after redetermination, the employer still contests the contribution rate, the employer may appeal the department's decision under 39-51-2402, MCA.

(10) Beginning in the first quarter of 2008, an assessment in the amount of .13 or .18 percent of taxable wages, as provided by 39-51-404, MCA, must be paid by all experience-rated employers and deposited in the employment security account provided for in 39-51-409, MCA. The assessment amount is not considered as "contributions" for the purposes of 39-51-401, MCA, and for purposes of reporting on form 940 Employer's Annual Federal Unemployment (FUTA) Tax Return.

(1) Rates for new employers are based on North American Industry Classification System (NAICS) codes which are assigned to nine major industrial classification rate divisions, plus a nonclassifiable establishment division for employer accounts whose industrial class cannot be determined.

(2) A professional employer organization (PEO) licensed under Title 39, chapter 8, MCA, for the first calendar year of subjectivity is assigned the nonclassifiable rate for new employers. Thereafter, unless the PEO is experience-rated, the PEO is assigned a rate as a new employer in the industry in which the majority of workers are placed for the PEO's clients.

(a) The PEO must provide the department with the quarterly report and a list of workers showing which workers were assigned to which client. If the list is not provided, the PEO will be assigned the nonclassifiable rate for new employers for the following year.

(3) The NAICS codes are assigned to rate divisions as follows:

(a) Division A: NAICS Code 11 - agriculture, forestry, fishing, and hunting;

(b) Division B: NAICS Code 21 - mining;

(c) Division C: NAICS Code 23 - construction;

(d) Division D: NAICS Code 31-33 - manufacturing;

(e) Division E:

(i) NAICS Code 22 - utilities;

(ii) NAICS Code 48 - transportation; and

(iii) NAICS Code 49 - warehousing;

(f) Division F: NAICS Code 42 - wholesale trade;

(g) Division G:

(i) NAICS Code 44-45 - retail trade; and

(ii) NAICS Code 72 - accommodation and food services;

(h) Division H:

(i) NAICS Code 52 - finance and insurance; and

(ii) NAICS Code 53 - real estate, rental, and leasing;

(i) Division I:

(i) NAICS Code 51 - information services;

(ii) NAICS Code 54 - professional and technical services;

(iii) NAICS Code 55 - management of companies and enterprises;

(iv) NAICS Code 56 - administrative support, waste management, and remediation services;

(v) NAICS Code 61 - educational services;

(vi) NAICS Code 62, health care and social assistance;

(vii) NAICS Code 71 - arts, entertainment, and recreation; and

(viii) NAICS Code 81 - other services; and

(j) Division K: NAICS Code 99 - nonclassifiable establishments.

(4) Employers that do not provide sufficient information to be properly classified are assigned to Division K, NAICS Code 99, nonclassifiable establishments, which carries the maximum rate for new employers. Employers have 30 days from the postmarked date of the rate notice or rate letter to submit sufficient information for a proper NAICS classification and rate assignment.

(5) The average rate for each rate division is computed once a year to set rates for the calendar year. Rates for new employers are determined using the average contribution rates in effect for the prior and current calendar year, plus any adjustment for changes in the rate schedule.

(1) When a new business entity is formed and it acquires assets, employees, business, organization, or trade from another employer, the new business entity is classified as a successor employer. The procedures for transferring an employer's experience-rating record are described in 39-51-1219, MCA. For purposes of this rule, predecessor employer and successor employer are used in the same manner and have the same meaning as those terms have in 39-51-1219, MCA.

(2) Except as otherwise provided in this rule, an application for transferring the experience-rating record is automatically sent to the successor employer if, within 90 days of the change of ownership, the department discovers that an account involves a predecessor employer.

(3) An experience-rating record is automatically transferred from the predecessor employer to the successor employer if both employers are under substantially common ownership, management, or control. An experience-rating record includes the amount of contributions paid, benefits charged, and taxable wages reported.

(a) Substantially common ownership, management, or control is present when a person serves in any of the following positions for both the predecessor and successor:

(i) sole proprietor (includes spouse, children, and parents of sole proprietor);

(ii) partner of a partnership;

(iii) member of a limited liability company;

(iv) chief executive officer;

(v) chief financial officer;

(vi) any corporate officer;

(vii) any shareholder owning, directly or indirectly, more than 50 percent of a corporation's stock; or

(viii) board members.

(4) A request for transfer of the experience-rating record may be approved if:

(a) all delinquent reports are filed;

(b) all past due taxes are satisfied; and

(c) the successor employer files an employer registration form.

(5) In the case of partial transfer of the trade or business of an employing entity (referred to as the predecessor employer) to another entity (referred to as the successor), the portion of the experience-rating record transferred from the predecessor employer to the successor must be determined in the same ratio as:

(a) the portion of the payroll transferred to the successor in the current and the previous four calendar quarters immediately preceding the date of transfer; to

(b) the total payroll of the predecessor employer would have had during that same period, had the transfer not occurred.

(6) The penalty assessed in 39-51-1219, MCA, is based on the taxable payroll of the successor following the transfer of the experience-rating record.

(7) A transfer of the experience-rating record between a professional employer organization and its client is not allowed unless the client and the professional employer organization have common ownership, management, or control.

(1) The department shall reactivate the unemployment insurance account of an employer who begins employing workers within five years from the last date of employment. The department shall assign the employer a contributions rate by taking into account the employer's prior experience rated record.

(a) The department shall assign the lowest deficit contribution rate in effect for the current rate year to a deficit employer who has reported no wages during the three federal fiscal years immediately prior to the rate computation date.

(b) The department shall assign the new employer contribution rate in effect for the current rate year based on the employer's industrial classification to an eligible employer who has reported no wages in the three federal fiscal years immediately prior to the rate computation date.

(1) A governmental entity that does not elect to reimburse the trust fund is assigned an experience rate based on 39-51-1212, MCA.

(2) For wages paid through June 30, 2008:

(a) Governmental entities are assessed for purposes of 39-51-404, MCA, at the rate of .05 percent of total quarterly wages.

(b) The following is the rate schedule used for governmental entities.

RATE FOR GOVERNMENTAL ENTITIES

EXPERIENCE RATING SYSTEM

___________________________________________________________________

Individual Employer's  Benefit Cost			*Median Benefit Cost Ratio
Ratio	.3	.4	.5	.6	.7	.8	.9	1.0	1.1	1.2	1.3	1.4	1.5
.1 or less	.1	.1	.2	.3	.4	.5	.6	.7	.8	.9	1.1	1.3	1.5
.2	.1	.1	.2	.3	.4	.5	.6	.7	.8	.9	1.1	1.3	1.5
.3	.1	.2	.3	.4	.5	.6	.7	.8	.9	1.0	1.1	1.3	1.5
.4	.2	.2	.3	.4	.5	.6	.7	.8	. 9	1.0	1.2	1.3	1.5
.5	.2	.3	.4	.5	.6	.7	.8	.9	1.0	1.1	1.2	1.4	1.5
.6	.2	.3	.4	.5	.6	.7	.8	.9	1.0	1.1	1.3	1.4	1.5
.7	.3	.4	.5	.6	.7	.8	.9	1.0	1.1	1.2	1.3	1.4	1.5
.8	.3	.4	.5	.6	.7	.8	.9	1.0	1.1	1.2	1.3	1.4	1.5
.9	.3	.4	.5	.6	.7	.8	.9	1.0	1.1	1.2	1.3	1.4	1.5
1.0	.4	.5	.6	.7	.8	.9	1.0	1.1	1.2	1.3	1.3	1.4	1.5
1.1	.4	.5	.6	.7	.8	.9	1.0	1.1	1.2	1.3	1.4	1.4	1.5
1.2	.4	.6	.7	.8	.9	1.0	1.1	1.2	1.3	1.4	1.4	1.5	1.5
1.3	.5	.6	.7	.8	.9	1.0	1.1	1.2	1.3	1.4	1.4	1.5	1.5
1.4	.5	.7	.8	.9	1.0	1.1	1.2	1.3	1.4	1.5	1.5	1.5	1.5
1.5	.5	.7	.8	.9	1.0	1.1	1.2	1.3	1.4	1.5	1.5	1.5	1.5

*Total benefits charged to all governmental entities for all past periods divided by total wages paid by all governmental entities for all past periods. This percentage is used as a median rate. The column headed by that percent is used when the past experience computes to that figure.

(3) For wages paid from July 1, 2008, through June 30, 2011:

(a) Governmental entities are assessed for purposes of 39-51-404, MCA, at the rate of .09 percent of total quarterly wages.

(b) The following is the rate schedule used for governmental entities.

RATE FOR GOVERNMENTAL ENTITIES
EXPERIENCE RATING SYSTEM

___________________________________________________________________ 

Individual Employer's Benefit Cost Ratio	*Median Benefit Cost Ratio
	.3	.4	.5	.6	.7	.8	.9	1.0	1.1	1.2	1.3	1.4	1.5
.06 or less	.06	.06	.16	.26	.36	.46	.56	.66	.76	.86	1.06	1.26	1.46
.16	.06	.06	.16	.26	.36	.46	.56	.66	.76	.86	1.06	1.26	1.46
.26	.06	.16	.26	.36	.46	.56	.66	.76	.86	.96	1.06	1.26	1.46
.36	.16	.16	.26	.36	.46	.56	.66	.76	.86	.96	1.16	1.26	1.46
.46	.16	.26	.36	.46	.56	.66	.76	.86	.96	1.06	1.16	1.36	1.46
.56	.16	.26	.36	.46	.56	.66	.76	.86	.96	1.06	1.26	1.36	1.46
.66	.26	.36	.46	.56	.66	.76	.86	.96	1.06	1.16	1.26	1.36	1.46
.76	.26	.36	.46	.56	.66	.76	.86	.96	1.06	1.16	1.26	1.36	1.46
.86	.26	.36	.46	.56	.66	.76	.86	.96	1.06	1.16	1.26	1.36	1.46
.96	.36	.46	.56	.66	.76	.86	.96	1.06	1.16	1.26	1.26	1.36	1.46
1.06	.36	.46	.56	.66	.76	.86	.96	1.06	1.16	1.26	1.36	1.36	1.46
1.16	.36	.56	.66	.76	.86	.96	1.06	1.16	1.26	1.36	1.36	1.46	1.46
1.26	.46	.56	.66	.76	.86	.96	1.06	1.16	1.26	1.36	1.36	1.46	1.46
1.36	.46	.66	.76	.86	.96	1.06	1.16	1.26	1.36	1.46	1.46	1.46	1.46
1.46	.46	.66	.76	.86	.96	1.06	1.16	1.26	1.36	1.46	1.46	1.46	1.46

*Total benefits charged to all governmental entities for all past periods divided by total wages paid by all governmental entities for all past periods. This percentage is used as a median rate. The column headed by that percent is used when the past experience computes to that figure.

(4) For wages paid on or after July 1, 2011:

(a) Governmental entities are assessed for purposes of 39-51-404, MCA, at the rate of .09 percent of total quarterly wages.

(b) The following is the rate schedule used for governmental entities.

RATE FOR GOVERNMENTAL ENTITIES
EXPERIENCE RATING SYSTEM

___________________________________________________________________

Individual Employer's Benefit Cost Ratio	*Median Benefit Cost Ratio
	.26	.36	.46	.56	.66	.76	.86	.96	1.06	1.16	1.26	1.36	1.46
.1 or less	.06	.06	.16	.26	.36	.46	.56	.66	.76	.86	1.06	1.26	1.46
.2	.06	.06	.16	.26	.36	.46	.56	.66	.76	.86	1.06	1.26	1.46
.3	.06	.16	.26	.36	.46	.56	.66	.76	.86	.96	1.06	1.26	1.46
.4	.16	.16	.26	.36	.46	.56	.66	.76	.86	.96	1.16	1.26	1.46
.5	.16	.26	.36	.46	.56	.66	.76	.86	.96	1.06	1.16	1.36	1.46
.6	.16	.26	.36	.46	.56	.66	.76	.86	.96	1.06	1.26	1.36	1.46
.7	.26	.36	.46	.56	.66	.76	.86	.96	1.06	1.16	1.26	1.36	1.46
.8	.26	.36	.46	.56	.66	.76	.86	.96	1.06	1.16	1.26	1.36	1.46
.9	.26	.36	.46	.56	.66	.76	.86	.96	1.06	1.16	1.26	1.36	1.46
1.0	.36	.46	.56	.66	.76	.86	.96	1.06	1.16	1.26	1.26	1.36	1.46
1.1	.36	.46	.56	.66	.76	.86	.96	1.06	1.16	1.26	1.36	1.36	1.46
1.2	.36	.56	.66	.76	.86	.96	1.06	1.16	1.26	1.36	1.36	1.46	1.46
1.3	.46	.56	.66	.76	.86	.96	1.06	1.16	1.26	1.36	1.36	1.46	1.46
1.4	.46	.66	.76	.86	.96	1.06	1.16	1.26	1.36	1.46	1.46	1.46	1.46
1.5	.46	.66.	76	.86	.96	1.06	1.16	1.26	1.36	1.46	1.46	1.46	1.46

*Total benefits charged to all governmental entities for all past periods divided by total wages paid by all governmental entities for all past periods. This percentage is used as a median rate. The column headed by that percent is used when the past experience computes to that figure.

(a) To qualify for reimbursement, the nonprofit employer must:

(i) meet the criteria in section 501(c) (3) of the IRC;

(ii) submit a copy of the exemption letter from the IRS; and

(iii) file an election of method of payment form.

(b) To reimburse the trust fund, an employer must pay into the trust fund an amount equal to the regular benefits and the state of Montana's share of extended benefits charged to the employer's account.

(c) The department notifies the employer monthly of the amount of benefits charged to the account.

(d) The trust fund may be reimbursed on a monthly basis, but, to avoid late payment penalties and interest, reimbursement must be made no later than 30 days after the end of the quarter in which benefits were charged to the account.

(2) A governmental entity that does not elect to reimburse the trust fund is assigned an experience rate based on 39-51-1212 , MCA.

(a) On or before June 15 of each year, the department mails rate notices to governmental employers.

(b) All or the applicable portion of the experience rating record of a governmental employer is transferred to the successor in the event of a merger, split or acquisition, unless the successor elects to reimburse the trust fund.

(3) A nonprofit organization that is not a governmental entity and does not elect to reimburse the trust fund is assigned an experience rate based on 39-51-1213 , MCA. .

This rule has been repealed.

(a) letter;

(b) report form;

(c) claim for benefits; or

(d) other communication addressed to the department.

(2) It is the intent of the department that any determination of a worker's status as an employee for unemployment insurance tax purposes be consistent with the determination of the same person's status under the Workers' Compensation Act and the professional employer organization laws.

(a) the personal assistant is providing services to the disabled person pursuant to 53-6-145 , MCA, and rules adopted by the department of public health and human services implementing that statute; and

(b) the personal assistant is the employee of another person or entity that has the right to exercise an employer's control over the personal assistant, including the right to discipline and terminate employment.

(1) As provided in 39-51-204, MCA, an individual found to be an independent contractor pursuant to 39-71-417, MCA, is considered to be an independent contractor for the purposes of unemployment insurance. If an individual is not required to obtain an independent contractor exemption certificate because the individual regularly and customarily performs services at his or her own fixed business location, or if an individual is exempt from 39-71-417, MCA, by other sections of the workers' compensation act, the department shall apply the guidance set out in ARM Title 24, chapter 35, subchapters 2 and 3 and use the following two-part test to determine whether an individual is an independent contractor or an employee:

(a) whether an individual is and shall continue to be free from control or direction over the performance of the services, both under contract and in fact; and

(b) whether an individual is engaged in an independently established trade, occupation, profession, or business.

(2) When evaluating the status of an individual who possesses an independent contractor exemption certificate, the department shall apply the two-part test in (1)(a) and (b). The department may recommend the suspension of an individual's independent contractor exemption certificate for a specific business relationship when the department determines that an employing unit exerts or retains a right of control to the degree that the certificate holder fails to qualify for independent contractor designation. The department may recommend certificate revocation when the department determines the certificate holder has violated the provisions of 39-71-418, MCA.

(3) To determine whether a hiring agent exerts control over an individual, the department shall evaluate:

(a) direct evidence of right or exercise of control;

(b) method of payment;

(c) furnishing of equipment; and

(d) right to fire.

(4) For purposes of this rule, "individual" means a worker who renders service in the course of a trade, occupation, profession, or business, and "employing unit" means the individual or other legal entity as described in the definition of "employing unit" in 39-51-201, MCA, that hired one or more individuals.

(5) To determine whether an independent contractor or employment relationship exists, the department may:

(a) review written contracts between the individual and the employing unit;

(b) interview the individual, co-workers, or the employing unit;

(c) obtain statements from third parties;

(d) examine the books and records of the employing unit;

(e) review filing status on income tax returns; and

(f) make any other investigation necessary to determine employment status.

(6) After investigation, the department may issue an initial written determination on whether an individual is an independent contractor. Any person or employing unit aggrieved by this initial determination may request investigation and a decision by the department's Independent Contractor Central Unit (ICCU) pursuant to ARM 24.11.203 and ARM Title 24, chapter 35, subchapters 2 and 3, within ten days of notice of the initial determination.

(a) A party is considered to have been given notice on the date a written notice is personally delivered or three days after a written notice is mailed to the party.

(b) The time limits set forth above may be extended for good cause as provided in 39-51-2402, MCA.

(7) Thereafter, the process set out in ARM Title 24, chapter 35, subchapters 2 and 3 controls.

(1) As provided in 39-51-204, MCA, service performed by any of the following is excluded from the definition of employment:

(a) a sole proprietor's spouse;

(b) a sole proprietor's dependent; or

(c) a dependent who is claimed as an exemption under 26 U.S.C. 152 by a person who is in partnership with their spouse.

(2) Service performed by a dependent of one partner in a partnership who cannot be claimed as a dependent by all partners in a partnership under 26 U.S.C. 152 is included in the definition of employment.

(1) For the purposes of reporting and paying unemployment insurance tax, the term "wages", as defined in 39-51-201, MCA, includes but is not limited to the following types of remuneration for services:

(a) holiday and vacation pay, or payments in lieu of vacation pay;

(b) payments made from an employee's gross remuneration into deferred compensation or cafeteria plans and other similar plans. Such payments are wages reportable for the period in which the compensation was earned;

(c) back pay awards, to the extent such awards are based on services performed or services that would have been performed if the worker had not been wrongfully terminated;

(d) the cash value of room and board. The department determines the cash value of room and board, unless the employment contract sets the value at an amount equal to or greater than the amounts established in this rule. Room and board has at least the following cash value:

(i) full room and board, weekly $130

(ii) meals, per week 60

(iii) meals, per meal 3

(iv) room, per week 70

(e) the cash value of all other types of non-cash payments is the market value of the item or service received;

(f) payments for termination, severance, separation, or other similar payments;

(g) advances or draws against future earnings, when paid. Payments designated as loans in the employer's records are considered wages unless the loan is to be repaid under a written schedule agreed upon by the employee and the employer;

(h) payments distributed to corporate officers or shareholders in lieu of reasonable compensation for services performed, even though designated as profits or dividends; and

(i) payments for sick leave and accident disability even if not paid directly by the employer, but by a third party such as an insurance agent. For example, if the employer pays premiums to the third party to cover sick leave or accident disability costs, the payments paid by the third party to the employee are wages. If the employee pays the premiums for such coverage, the sick leave or accident disability payments are not wages.

(2) The employer is responsible for tax payments attributable to sick leave or accident disability payments made to, or on behalf of, an employee for six months after the last calendar month in which the employee worked for such employer. The third party assumes responsibility for the payments if the third party fails to give the following information to the employer within 15 days of the end of the calendar quarter in which the payments were made:

(a) name and social security number of the employee who received the sick leave payments; and

(b) total amount of the payments.

(3) The name by which compensation is designated is immaterial.

(1) Payments made by the employer to the employee for rental of equipment or capital assets owned by the employee are not wages if: 

(a) the equipment is necessary for the employee to perform the job;

(b) the employment contract or the entity's records provide for such payments;

(c) the amount of each employee's reimbursement is entered separately in the employer's records; and

(d) the reimbursement does not replace the customary wage for the occupation.

(2) The actual expenses incurred by the employee may be considered reasonable rental fees if the employer's records show:

(a) the initial cost;

(b) depreciation; and

(c) maintenance and operational costs in connection with the services performed for the employer.

(3) With respect to equipment or capital assets, other than vehicles, the employer may pay an allowance not greater than the reasonable rental value for that equipment.

(4) For individuals involved in timber falling, the reasonable rental value may not exceed $22.50 per working day for chainsaw and related timber falling expense.

(5) With respect to heavy equipment, including but not limited to semi-tractors or bulldozers, the reasonable rental value may not exceed 75% of the employee's gross remuneration.

(6) Passenger vehicle expenses may be reimbursed either on the basis of actual receipts or upon mileage, at a rate no greater than that allowed by the United States Internal Revenue Service for that year, provided that the individual actually furnishes the vehicle.

(7) Hand tools customarily used in the employee's trade have no rental value for purposes of this rule. Any rental payments made with respect to these items are considered wages.

(1) A business filing income taxes as a corporation shall accurately report compensation for services performed by a corporate officer, LLC member, or shareholder employee as wages for the purpose of unemployment insurance taxation.

(2) The department shall use the following factors to evaluate whether reasonable compensation for services performed by a corporate officer, LLC member, or shareholder employee has been reported to the department as wages:

(a) qualifications and business role of corporate officer, LLC member, or shareholder employee, including but not limited to:

(i) the amount of time devoted to the business;

(ii) position and responsibility within the business; and

(iii) duties performed for business;

(b) compensation paid to other similarly situated employees of the business and the business entity's wage policy;

(c) a review of the State Occupational Employment and Wage Estimates for the pertinent occupation; and

(d) nature, size, and location of business, including:

(i) complexity of the business;

(ii) financial condition of the business including, but not limited to, the relationship of the compensation to gross and net business income, cash flows, total sales or revenues, and net income adjusted for non cash items such as depreciation, depletion, and amortization; and

(iii) cost of living and general economic conditions in the business's locale.

(3) The department shall calculate the actual remuneration received by a corporate officer, LLC member, or shareholder employee by examining payments including, but not limited to, the following:

(a) direct payments by check, electronic transfer, or cash;

(b) payments to any family member who did not perform services for the payment;

(c) payments classified as gifts, distributions of profit, dividends, owner draws or contributions, and return of capital;

(d) distribution of property or services paid for by the corporation;

(e) payments for personal expenses including, but not limited to direct payments for personal debts, payments of credit card bills that include personal purchases, and use of company vehicles for personal use;

(f) payments classified as loans for which there is no evidence of a repayment schedule or the payment schedule does not impose a reasonable interest rate;

(g) payments for rent in excess of market value; and

(h) the market value of any remuneration paid in any medium other than cash.

(4) The department shall compare the reported wages to actual remuneration received by a corporate officer, LLC member, or shareholder employee and consider the factors enumerated by (2) to determine a reasonable compensation for services performed.

(1) Payments made by an employer to reimburse an employee for ordinary and necessary business expenses incurred during the course and scope of employment are not wages if the reimbursement amount:

(a) is entered separately in the employer's records;

(b) is not deducted from or based on a percentage of the employee's wage; and

(c) does not replace the customary wage for the occupation.

(2) Reimbursement must be based on:

(a) actual expenses for lodging, goods, or services incurred by the employee and supported by receipts;

(b) a flat rate for meals not exceeding the per diem allowed by the United States Internal Revenue Service for the year, unless, through documentation, the employer can substantiate a higher rate; or

(c) when an employee-furnished vehicle is used, a mileage rate no greater than that allowed by the United States Internal Revenue Service for that year.

(1) Expense reimbursements, fees, meals, or other payments provided through a court to a juror are not wages.

(2) Insurance premiums or other regular payments paid by the employer into a fund for costs arising from employee sickness, disability, medical or hospital expenses are not wages if the plan constitutes a qualified plan under the United States Internal Revenue Code.

(3) Annuities, insurance premiums or other regular payments made by the employer into a fund for costs arising upon retirement or death are not wages, if the plan constitutes a qualified plan under the United States Internal Revenue Code.

(4) Customary and reasonable director's fees for attending meetings of the board of directors of a corporation are not wages, if the fees are not paid in lieu of reasonable compensation for services performed.

(5) Draws by a sole proprietor or partner are not wages, even if designated as salary.

(6) The department shall consider payments made by an employer to an employee who is called to active duty in the military services for more than 30 days, when the payments represent a replacement of part or all of the wages the employee would have received for performing services for the employer, to be military differential pay and not wages for purposes of Title 39, chapter 51, MCA.

(1) Employers must keep employment and payroll records for each employee for five years.

(2) For each pay period, those records must show:

(a) the beginning and ending dates;

(b) the total wages, as defined in 39-51-201 , MCA, for employment in such pay period; and

(c) the number and date of weeks in which there were one or more employees.

(3) For each employee, those records must show:

(a) the employee's full name;

(b) the employee's social security number;

(c) the employee's wages for each pay period, showing separately:

(i) money wages payable including special payments or constructive payment of wages;

(ii) reasonable cash value of remuneration by the employer in any medium other than cash;

(iii) estimated or actual amount of gratuities received from persons other than employer; and

(iv) special payments of any kind, including annual bonuses, gifts, prizes, etc.;

(d) the date(s) the employee was hired, rehired, or returned to work after a temporary layoff;

(e) the date(s) employment was terminated by layoff, quit, discharge, or death;

(f) the cause of any termination;

(g) the method of compensation, by specifying whether the employee is paid:

(i) a salary;

(ii) a commission;

(iii) on an hourly basis;

(iv) on a by-piece basis or other variable rate basis; or

(v) if on a fixed daily basis, the employee's daily rate and the customarily scheduled days per week prevailing in the establishment for the employee's occupation; and

(h) documents supporting employee expense reimbursements.

(4) Evidence of business ownership including, but not limited to, partnership agreements and documents issued or acknowledgments by the secretary of state.

(5) The department is authorized to examine any and all records necessary for the administration of the unemployment insurance laws, Title 39, chapter 51, MCA.  These records include, but are not limited to:

(a) payroll records;

(b) disbursement records;

(c) tax returns;

(d) personnel records;

(e) minutes of meetings;

(f) loan documentation; and

(g) any other records which might be necessary to determine claimant eligibility and employer liability.

(6) The records and reports are open to periodic review by the department's authorized representatives. 

(1) The provisions of this rule apply only to those employers which:

(a) are not governmental entities; and

(b) are classified as experience rated pursuant to 39-51-1217, MCA.

(2) All wages paid to an employee by an employer are reportable as total wages. Wages paid to an employee in any single calendar year by an employer, up to and including the annual taxable wage base as defined in 39-51-1108, MCA, for that calendar year, are taxable wages. All further wages paid to the employee by that employer in that calendar year are "excess wages" and not taxable.

(3) A successor employer, as described in 39-51-1219, MCA, may use the amount of wages paid by the predecessor to determine the successor employer's taxable wages. If a successor does not acquire a portion or all of the experience-rating record of a predecessor, the successor cannot use the amount of wages paid by the predecessor to determine the successor employer's taxable wages.

(4) Prior to January 1, 2014, wages reported for an employee to another state may be used in calculating the employee's taxable wage in Montana.

(5) Beginning January 1, 2014, only wages reported to the Montana unemployment insurance program may be used to calculate an employee's taxable wage in Montana.

(1) Every employer must report employee wage information and pay taxes on those wages to the department each quarter. The department may request any information from the employer necessary for the collection of the tax.

(2) An employer who does not pay any wages during a calendar quarter is not relieved of the duty to submit a quarterly wage report.

(3) Wages become subject to tax when they are actually or constructively paid. Wages must be reported in the calendar quarter they are actually or constructively paid. Wages are constructively paid if they are credited to the employee's account and set apart for an employee so they may be withdrawn at the employee's discretion.

(4) The quarterly wage reports and tax payments must be sent to the department by the following due dates:

(5) If a due date falls on a weekend or holiday, the next business day becomes the due date.

(6) If a tax payment or quarterly report is sent after the due date, the department may assess a penalty and interest.

(7) An employer or its agent must report wage information in a format prescribed by the department.

(a) An employer who reported wages for 20 or more employees in any quarter in the preceding calendar year and a third-party agent who reports on behalf of an employer must use an electronic format provided or approved by the department to file quarterly wage reports. Once an employer crosses the 20 or more employee threshold, all subsequent wage reporting must be electronic.

(b) An employer reporting 19 or fewer employees may file quarterly wage reports using a UI-5 form provided or approved by the department or by an electronic format provided or approved by the department.

(c) The department may deem wage reports filed in other than the prescribed format as untimely and subject the employer to a late filing penalty, pursuant to 39-51-1301, MCA.

(8) A tax payment may be made by:

(a) cash, check, or money order, accompanied by a department-approved payment voucher;

(b) automated clearing house (ACH) debit;

(c) ACH credit; or

(d) credit card.

(1) Payments are applied to unemployment insurance liabilities as provided in the following order unless bankruptcy proceedings or the department have determined otherwise:

(a) contributions;

(b) special administrative assessment under 39-51-404(3), MCA;

(c) special administrative assessment under 39-51-404(5), MCA;

(d) penalties assessed under 39-51-1301, MCA, for failure to file reports or make payments in a timely manner;

(e) interest; and then

(f) miscellaneous penalties.

(2) Payments submitted with quarterly reports or payment transmittal forms are applied to that quarter and any overpayment is applied to amounts due in other quarters, beginning with the oldest quarter. Any remaining overpayment may only be applied to future unemployment insurance tax obligations or refunded to the employer.

(a) The employer may request that payments be applied to a more recent quarter.

(1) Pursuant to 39-51-1304 , MCA, the department may acquire a lien on an employer's property for unpaid contributions.  Property may be released from this lien if:

(a) the department has a lien on other property owned by the employer that has unencumbered equity, as determined by the department, of at least twice the amount of debt secured by the property;

(b) the employer pays to the department an amount, determined by the department, that is not less than the value of the department's interest in the property subject to the lien;

(c) the department determines its interest in the property has little or no value; or

(d) upon sale of the secured property, a fund from the sale's proceeds is established to satisfy all claims against the property under an escrow agreement approved by the department.

(2) An employer or other applicant must give the following information when requesting the release of property secured by a department lien:

(a) the applicant's name, address, and telephone number;

(b) the name, address, and account number of the employer owning the property subject to the lien;

(c) the legal description and address of all property to be released by the department.  If the request is based on (1) (a) , the request must include a legal description and address of all property secured by the department's lien;

(d) a list of the encumbrances, or a copy of the instrument creating the encumbrance, with priority over the department's lien, including:

(i) name and address of the secured party or holder of the encumbrance;

(ii) a description of the encumbrance with the date it was imposed;

(iii) the date and place the encumbrance was recorded;

(iv) the terms of the security agreement creating the encumbrance;

(v) the amount of money owed under the encumbrance at the time of application;

(e) a current written appraisal by a qualified appraiser of all property for which a release is requested; and

(f) a copy of the proposed escrow and sales agreement if the property is to be released because of sale.