Skip to Main Content
Quick and Easy Guide to Labor & Employment Law: Montana

This state-specific guide covers labor and employment case law, statutes, rules, and regulations that HR professionals and clients often encounter or have questions about in Montana.

At-Will Employment

Montana is currently the only state that is not an at-will employment state. The State of Montana enforces a "good cause" standard for termination of employment. Mont. Code § 39-2-904(1)(b). However, employees do have an automatic probationary period during their first 90 days where an employer may terminate the employee at will. Mont. Code § 39-2-904(2).

Right-to-Work Laws

Montana proposed a right-to-work bill that died in the House on March 2, 2021. Montana is currently not a right-to-work state, meaning that union membership or continued membership can be a condition of employment. 

Immigration Verification

Montana places no additional employment verification procedures on employers beyond Federal I-9 compliance. There is no requirement to use E-Verify under Montana state laws.

Drug Testing

The state of Montana enforces what is referred to as The Montana Workforce Drug and Alcohol Testing Act Mont. Code § 39-2-205. The Act establishes a qualified testing program that must comply with the criteria found in § 39-2-207. Employees may drug test a potential employee as a condition to hire under § 39-2-208

Jury Duty Leave

It is unlawful for an employer to persuade or attempt to persuade any juror to avoid jury service; to intimidate or to threaten any juror in that respect; or to remove or otherwise subject an employee to adverse employment action as a result of jury service if the employee provides reasonable notice of his or her absence. Under Montana law, employers wrongfully discharge employees if they retaliate against employees for their refusal to violate public policy or for reporting a violation of public policy. Mont. Code § 39-2-904. Under Montana law, citizens are obligated to participate in jury duty unless they are exempt from doing so. Mont. Code § 3-15-301 to 321. Thus, employers may not terminate or take any adverse action against employees because the employees receive and/or respond to jury summons or serve jury duty. No Montana state law requires the employer to pay wages while an employee is on jury duty.

Voting Leave

Montana does not have a law that requires an employer to grant its employees leave, either paid or unpaid, to vote.

Parental Leave

The State of Montana prohibits employers from denying a reasonable leave of absence for a woman's pregnancy. Mont. Code § 49-2-310. Montana does not have any specific parental leave requirements applicable to private sector employers.

Other Leave

In Montana, employers are not required to provide employees with vacation benefits, either paid or unpaid. MT Dept. of Labor and Industry FAQ; See Langager v. Crazy Creek Products, Inc., 287 Mont. 445; 954 P.2d 1169 (Mt. Sup. Ct. 1998). If an employer chooses to provide such benefits, it must comply with the terms of its employment contract or established policy. MT Dept. of Labor and Industry FAQ.

Once an employee earns vacation leave, it cannot be forfeited for any reason. MT Dept. of Labor and Industry FAQ. Langager v. Crazy Creek Products, Inc., 287 Mont. 445; 954 P.2d 1169 (Mt. Sup. Ct. 1998). This means an employee must be paid for all accrued vacation pay upon separation from employment, regardless of the reason. MT Dept. of Labor and Industry FAQ; See also Langager v. Crazy Creek Products, Inc., 287 Mont. 445; 954 P.2d 1169 (Mt. Sup. Ct. 1998).

An employer cannot require an employee to comply with specific requirements in order to receive accrued vacation leave upon separation from employment, such as giving timely notice or not being terminated. MT Dept. of Labor and Industry FAQ; Langager v. Crazy Creek Products, Inc., 287 Mont. 445; 954 P.2d 1169 (Mt. Sup. Ct. 1998).

An employer may place a reasonable cap on the vacation leave an employee can accrue. MT Dept. of Labor and Industry FAQ.

An employer cannot implement a ‘use it or lose it’ vacation policy requiring employees to use their vacation leave by a set date or lose it. MT Dept. of Labor and Industry FAQ; Langager v. Crazy Creek Products, Inc., 287 Mont. 445; 954 P.2d 1169 (Mt. Sup. Ct. 1998).

Montana law does not require employers to provide employees with sick leave benefits, either paid or unpaid. MT Dept. of Labor and Industry FAQ. If an employer chooses to provide sick leave benefits, it must comply with the terms of its established policy or employment contract.

Montana law does not require private employers to provide employees with either paid or unpaid holiday leave. MT Dept. of Labor and Industry FAQ. In Montana, a private employer can require an employee to work holidays. A private employer does not have to pay an employee premium pay, such as one and one-half times the regular rate, for working on holidays, unless such time worked qualifies the employee for overtime under standard overtime laws. If an employer chooses to provide either paid or unpaid holiday leave, it must comply with the terms of its established policy or employment contract.

Smoking Laws

The State of Montana prohibits employers from discriminating against employees who use lawful products such as food, beverages and tobacco. Mont. Code § 39-2-313. In January 2021, Montana Legislature amended this statute to include laws pertaining to marijuana. H.B. 701.

Smoking is prohibited in all enclosed public places, including but not limited to workplaces. Mont. Code § 50-40-104. Employers must post conspicuous notices of the smoking ban at all public entrances to the establishment. 

Break Time to Express Milk

The State of Montana requires all state and county governments, municipalities, and school districts and the university system to make reasonable efforts to provide an area close in proximity to the workplace, other than the bathroom, to allow an employee to express milk. Mont. Code § 39-2-216(1). Public employers are encouraged, but not required, to provide nursing mothers who return to work a private area to express milk and provide facilities for milk storage. Mont. Code § 39-2-216. Montana does not require employers to pay for time taken to express milk. Mont. Code § 39-2-217.

Meal Breaks

The State of Montana has no law regulating meal breaks or rest periods. The state only requires paying the employee for time they work during a break.

Minimum Wage, Overtime and Wage Recordkeeping

Beginning, January 1, 2021, the State of Montana set minimum wage at not less than $8.75 per hour. Mont. Code § 39-3-409. Employers must still comply with federal wage laws and regulations. Montana does not allow employers to pay less than the minimum wage. Mont. Code § 39-3-409.

Provisions governing overtime pay can be found at Mont. Code § 39-3-405. Generally, if an employee works more than 40 hours, he or she must be compensated at a rate of one and one-half times the regular rate of pay at which he or she is employed. This does not apply to agricultural employees.

Every employer shall make and keep for a period of not less than three years in or about the premises wherein any employee is employed a record of the name, address and occupation of each of his or her employees, the rate of pay, the amount paid each pay period to each employee and such other information as the Director of the Department of Labor shall prescribe by regulation as necessary. MT Admin. Rules 24.16.6102.

Final Payments

When an employer discharges or lays off an employee, the employer must pay the employee all wages due immediately upon separation, unless the employer has a written personnel policy that extents the time for payment of final wages to the employee's next regular payday or within 15 days, whichever occurs first. Mont. Code § 39-3-205.

When an employee quits, the employer must pay the employee all wages due by the next regular payday or within 15 days, whichever occurs first. Mont. Code § 39-3-205.

Unemployment Insurance

Unemployment insurance benefits provide income to individuals who have lost work through no fault of their own. The benefits are intended to partially offset the loss of wages while an unemployed worker searches for suitable work or until an employer can recall the employee to work. Nothing is deducted from the employee's wages to pay for this coverage. Unemployment benefits are administered by the Montana Department of Labor & Industry. Additional information regarding the benefits may be accessed at uid.dli.mt.gov/.

Workers' Compensation

The Montana Workers' Compensation Act, Mont. Code § 39-71-101 et seq., applies to every employer in Montana with three or more employees, or to those in the construction industry. Employees who suffer injuries and/or occupational diseases arising out of and in the course of their employment may be eligible to receive several types of benefits under the Act. Under the Act, a workplace injury must be immediately reported to the employer; failing to timely report an injury may result in a denial of benefits.

The Act is administered by the Montana Workers' Compensation Commission and additional information regarding the Act may be accessed at erd.dli.mt.gov/work-comp-regulations/. Finally, unlike some states, Montana recognizes a private cause of action for retaliation under the Act. Whidden v. John S. Nerison, Inc., 981 P.2d 271, 273 (Mont. 1999). If an employer discriminates against an employee because he or she has asserted his or her rights under the Act, the employer may have to pay a fine to the Second Injury Trust Fund.

Child Labor

Generally, 14 years of age is the minimum age for employment under Montana state law and at age 16, a child may be employed for most work other than work in specified hazardous or dangerous fields, such as mining and demolition. There are restrictions for places of work dealing with minors, as well as restrictions on the hours of the day the minor may work. In 2021, Montana amended the child labor law to exclude persons 16 years of age and older from coverage as a minor if they are student-employees and under supervision of a qualified and experienced person. Mont. Code § 41-2-110. The laws may be found at Mont. Code § 41-2-101 et seq.

Gun Laws

Montana has no laws that force employers or businesses to allow guns in the workplace or on privately held property. Montana law (Mont. Code § 45-8-316 through § 45-8-328) prohibited the carrying of concealed weapons inside city or town limits, but HB0102 amended that to only exclude carrying concealed weapons in specified places such as school zones.

Have Questions?
Let's Talk!

Click the button above to reach out to a
Baker Donelson L&E Professional.

Disclaimer: These materials do not constitute
legal advice and should not be substituted
for the advice of legal counsel.

Guide last updated July 2021.

Email Disclaimer

NOTICE: The mailing of this email is not intended to create, and receipt of it does not constitute an attorney-client relationship. Anything that you send to anyone at our Firm will not be confidential or privileged unless we have agreed to represent you. If you send this email, you confirm that you have read and understand this notice.
Cancel Accept