Filing a Wage and Hour Claim – Montana

Does Montana have state overtime laws that are different from federal law?

Montana’s overtime law is essentially the same as the federal provision: if an employee works more than 40 hours in a given workweek, that employee is entitled to pay at one and one-half times the employee’s regular hourly wage.

The exceptions to Montana’s overtime law generally track the federal law exceptions. There are however a few jobs that are exempt from Montana’s law that are not exempt under federal law:

Salespeople paid on a commission or contract basis who are primarily engaged in selling advertising for a radio or television station employer
People employed as guides, cooks, camp tenders, or livestock handlers by licensed outfitters
Certain public employees engaged in collective bargaining agreements.

Jobs that are exempt from Montana’s minimum wage laws are also exempt from the overtime laws (see below).

Does Montana have a minimum wage that is different from federal law?

The current minimum wage in Montana is $7.50 per hour for employers with gross annual sales greater than $110,000. The state minimum wage is $4.00 for those employers whose gross annual sales are less than $110,000, which is less than the federal minimum wage of $7.25 per hour. Anyone who is not covered by the federal minimum wage law is considered covered under Montana law, unless (s)he falls into one of the exceptions below. Also, businesses that are not engaged in interstate commerce and that have gross annual sales of less than $100,000 per year may pay their employees at a lower rate per hour.

Under Montana law tips do not count as part of an employee’s wage for purposes of the minimum wage. That means that restaurants and other employers with tipped employees must pay minimum wage before tips.

If your employer furnishes you with lodging, the reasonable cost of those lodgings can count toward the minimum wage, assuming that the cost does not exceed 40% of the total wage paid. Generally, the cost of meals that your employer provides you can also count towards the minimum wage.

Montana’s minimum wage and overtime laws cover all jobs that are exempt under federal law. However, the following jobs are exempt under Montana law, which means that they are not covered either by the minimum wage or by the overtime provisions; most of these differ from federal law, but a few are the same:

students participating in a distributive education program established under the auspices of an accredited educational agency;
persons employed in private homes whose duties consist of menial chores, such as babysitting, mowing lawns, and cleaning sidewalks;
persons employed directly by the head of a household to care for children dependent upon the head of the household;
immediate members of the family of an employer or persons dependent upon an employer for half or more of their support in the customary sense of being a dependent;
persons who are not regular employees of a nonprofit organization and who voluntarily offer their services to a nonprofit organization on a fully or partially reimbursed basis;
persons with disabilities engaged in work that is incidental to training or evaluation programs or whose earning capacity is so severely impaired that they are unable to engage in competitive employment;
apprentices or learners, who may be exempted by the commissioner for a period not to exceed 30 days of their employment;
learners under the age of 18 who are employed as farm workers, provided that the exclusion may not exceed 180 days from their initial date of employment and further provided that during this exclusion period, wages paid the learners may not be less than 50% of the minimum wage rate established in this part;
retired or semi-retired persons performing part-time incidental work as a condition of their residence on a farm or ranch;
an individual employed in a bona fide executive, administrative, or professional capacity as these terms are defined by regulations of the commissioner; or in an outside sales capacity as defined in 29CFR541.5;
an individual employed by the United States of America;
resident managers employed in lodging establishments or assisted living facilities who, under the terms of their employment, live in the establishment or facility;
a direct seller as defined in 26 U.S.C. 3508;
a person placed as a participant in a public assistance program authorized by Title 53 into a work setting for the purpose of developing employment skills. The placement may be with either a public or private employer. The exclusion does not apply to an employment relationship formed in the work setting outside the scope of the employment skills activities authorized by Title 53.
a person serving as a foster parent, licensed as a foster care provider in accordance with 52-2-621, and providing care without wage compensation to no more than six foster children in the provider’s own residence. The person may receive reimbursement for providing room and board, obtaining training, respite care, leisure and recreational activities, and providing for other needs and activities arising in the provision of in-home foster care;
an employee employed in domestic service employment to provide companionship services, as defined in 29 CFR 552.6, or respite care for individuals who, because of age or infirmity, are unable to care for themselves as provided under section 213(a)(15) of the Fair Labor Standards Act (29 U.S.C. 213), when the person providing the service is employed directly by a family member or an individual who is legal guardian.

For more detailed information on Montana’s overtime and minimum wage laws, visit http:/erd.dli.mt.gov/labor-standards/wage-and-hourwage-payment-act/filing-a-wage-claim.html.

Does Montana have meal and rest break requirements, unlike federal law?

Like federal law, Montana labor law does not require your employer to provide rest or meal breaks. However, if your employer does provide such breaks, they are counted as paid time, unless they are longer than 30 minutes and you are completely relieved from work during them.

Does Montana have other labor standards laws that are different from federal law?

Under Montana labor law, an employer who does not pay an employee properly is guilty of a misdemeanor. Violations of wage-and-hour provisions for certain other jobs may carry other criminal penalties.

How do I file a wage/hour or labor standards claim in Montana?

Detailed information on how to file a wage-and-hour claim with the Montana Department of Labor and Industry can be found at . If you file an administrative claim, the Department can issue a default order (if your employer does not respond) or may hold a hearing to determine if you are owed what you say you are owed. If your employer still refuses to pay, the Department can apply to a state court to have the order enforced. In addition to receiving the wages you are owed, the Department may assess a penalty of up to 110% of the recovered money, which you will also receive.

What are my time deadlines?

Do not delay in contacting the Department of Labor and Industry to file a claim. There are strict time limits in which charges of wage-and-hour violations must be filed. In order for this agency to act on your behalf, you must file a claim within 180 days of default or delay in paying wages. Once you have filed, you can recover wages and penalties for the two years prior to the date on which the claim is filed; if you no longer are employed by the employer who denied you your wages, then you can recover for the last two years you were employed. In addition, if your employer has violated the wage-and-hour laws before, you can recover for wages for the three years prior to the date you filed, or, if you are no longer employed by your employer, the last three years that you worked. You may wish to consult with an attorney prior to filing your claim, if possible. Yet if you are unable to find an attorney who will assist you, it is not necessary to have an attorney to file your claim with the district and federal administrative agencies.

How can I or my attorney pursue a claim in court in Montana?

If you do not want to go through the Department of Labor and Industry, you can also file a suit in Montana state court; you are not required to go through the Department’s process first. If you sue in court, you are entitled to costs and attorney’s fees if you win. The same time deadlines explained above apply if you file in court.

Contact Information for the Montana Department of Labor and Industry

Labor Standards Bureau
Montana Department of Labor and Industry
1805 Prospect Avenue
P.O. Box 6518
Helena, MT 59604-6518

You can call the Labor Standards Bureau’s Wage and Hour Unit at (406) 444-5600

This material was originally prepared by attorney Joseph Jaramillo and former law clerks Keia Cole and Adam Weiss of the law firm Goldstein, Demchak Baller Borgen and Dardarian, and was updated by Professor Douglas D. Scherer, of Touro College, Jacob D. Fuchsberg Law Center. Professor Scherer also serves as the Vice President of Workplace Fairness.