Frequently Asked Questions
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- How are outfitters and guides licensed in Montana?
- The Montana Board of Outfitters (MBO), a unit of the state Dept. of Labor & Industry, sets experience, qualification, and testing requirements for licensing outfitters to provide fishing and/or hunting services (both big game and upland bird/waterfowl). Guides are sponsored by individual outfitters, then qualified by the MBO for a license.
- Can FOAM help me apply for a fishing guide or outfitting license?
- Yes. We have members who served on the Montana Board of Outfitters and know about the the license application process, including what to fill in for a guide license and tips for testing topics, operations plans, and Net Client Hunting Use regulations for an outfitter's license. Contact the FOAM office and our staff can help get you started. We are also working on a step-by-step licensing workbook for guide and outfitter applicants. Check this site for future updates.
- How can a guide work for several different outfitters?
- To be licensed as a guide, you must be sponsored by a licensed Montana outfitter as noted above. A licensed guide may work for any number of outfitters, either as an employee or as an independent contractor. When you work for another outfitter, he or she must sign your guide license, indicating the day(s) you are working for them, before you can offer services under their license. You may only offer services the outfitter is licensed to provide, and you may only work in the areas the outfitter has registered in their operations plan.
- What is an Independent Contractor?
- Montana law defines an independent contractor as:
"an individual who renders service in the course of an occupation and: (a) has been and will continue to be free from control or direction over the performance of the services, both under a contract and in fact, and (b) is engaged in an independently established trade, occupation, profession, or business."
- Characteristics/history of Independent Contractorship
- An Independent Contractor must have workers' compensation insurance coverage on themselves or obtain an exemption from Workers Compensation contribution requirements.
- A recent Montana Supreme Court decision, Wild v. Fregein Construction and Montana State Compensation Insurance Fund, outlines a very strict interpretation of the Montana definition of Independent Contractor. Consequently, the Montana Dept. of Labor and Industry offers the following factors to consider in determining if a worker meets parts (a) and (b) of the definition and warrants an exemption.
- Factors determining part (a), 'freedom from control':
- The worker is not required to follow written or oral instructions concerning how the work is to be done
- The worker is not required to perfom the services at certain established times
- The worker is not furnished with the facilities, tools, and materials by the hiring agent to do the work
- The worker is not paid based on the time spent doing the work, but rather is paid per job
- The working relationship may not be terminated at will without liability involved
- Factors determining part (b), 'engaged in an independently established trade, etc.':
- The worker can make a profit or incur a loss as a result of their work
- The worker has two or more contracts with several different hiring agents
- The worker has continuing or recurring liabilities associated with performing the services
- The worker files federal or state business tax forms
- The worker pays all expenses associated with performing the services and is not reimbursed by the hiring agent
- The worker advertises their services in telephone books, newspapers, or other media, and obtains insurance and business licenses
- During the 2005 legislative session, Senate Bill 108 passed, increasing the fee to $125 for two years and requiring applicants for an ICEC (independent contractor exemption certificate) to demonstrate up-front that they qualify for exemption.
- FOAM has developed a sample Independent Contractor Memorandum of Agreement for use by outfitters or guides who wish to clarify their working relationship in writing. FOAM recommends outfitters and guides or outfitters acting as guides having this or a similar document on file to help meet the IC standards in case a question of your working relationship arises.
- Questions? Check the most current exemption requirements and the new point system, then contact Montana's Employment Relations Division or the Independent Contractor Central Unit, (406) 444-9029, or call FOAM at (406) 763-5436.
- How do I get an Independent Contractor Exemption Certificate (ICEC)?
- Use this Independent contractor exemption certificate application or contact the Independent Contractor Central Unit,
(406) 444-9029, for an application. The application is in three parts:
- An 'application' form (a questionnaire that you MUST sign in front of a Notary Public - usually at your bank or credit union) outlining your business structure (most guides are Sole Proprietors), your 'profession or trade' (fishing guide), and other information.
- NOTE: Line 3 of the 'application' says "I am providing documentation . . . etc." As explained in the previous FAQ, the new IC system requires you to submit proof that you operate an independent business and uses a point system to gauge whether you meet legal requirements. The simplest way
to make sure you have the minimum number of points (15) is to send three items along with your application:
- a copy of your guide or outfitter license (3 points)
- a copy of your liability insurance (6 points) – see the JOIN page for FOAM member liability coverage.
- a list of your equipment (boat(s), trailer, oars, life vests, etc.) with approximate dollar value (6 points)
- A waiver form of workers' compensation benefits that must be initialed at each paragraph, then signed in front of a notary.
Montana Dept of Labor and Industry
Employment Relations Division
Independent Contractor Central Unit
P.O. Box 8011
Helena MT 59604-8011
NOTE: It typically takes the IC Unit less than a week to issue an ICEC; in most cases, they mail out the ICEC within 2 to 3 days of receiving an application.
Got questions about the process? Contact Carissa Jones at 406-444-9029.
- How do I become a guide with Independent Contractor status?
- There are three steps, each with it's own parts; in short, you must get a guide license, then obtain liability insurance, then apply for Independent Contractor
status. Each step MUST be completed before you go on to the next, so plan ahead and make sure you allow up to a month for all steps to be completed.
- Step 1: Get a guide license from the Montana Board of Outfitters.
- Find an outfitter willing to 'sponsor' or recommend you as a guide.
- Get a guide license application from that outfitter or the board of outfitters.
- Fill out the application, cut a check for $150 to the Montana Board of Outfitters, and mail to the Montana Board of Outfitters, 301 South Park Avenue, PO Box 200513, Helena, MT 59620-0513.
- NOTE: Allow two weeks for the Board of Outfitters to send your outfitter your guide license.
- Step 2: Obtain liability insurance.
- Join FOAM as a guide member. FOAM offers a group liability insurance policy. See the Applications page.
- Apply for liability insurance and obtain an certificate of insurance.
- Pay with checks for both FOAM membership and insurance; neither FOAM nor the insuror will take credit cards.
- NOTE: Allow 10 days for our insuror to mail out a certificate of insurance.
- Step 3: Once you have a guide license and an insurance certificate, apply for an Independent Contractor Exemption Certificate (ICEC). Allow up to two weeks to get your IC certificate! See the "How do I get an Independent Contractor Exemption Certificate" FAQ on this page.
- Step 1: Get a guide license from the Montana Board of Outfitters.
- How can I check someone's Independent Contractor status?
- Check with the Independent Contractor Central Unit online search
- What is the 'Limited Liability Corporation' exemption from Workers' Compensation?
- Work Comp laws at 39-71-417(1) (a) (i), MCA state:
Except as provided in subsection (1)(a)(ii), a person who regularly and customarily performs services at a location other than the person's own fixed business location shall apply to the department for an independent contractor exemption certificate unless the person has elected to be bound personally and individually by the provisions of compensation plan No. 1, 2, or 3.
Since most guides and outfitters work away from their 'place of business', they are covered by this section of law. However, the law goes on to say:
(ii) An officer or manager who is exempt under 39-71-401(2)(r)(iii) or (2)(r)(iv) may apply, but is not required to apply, to the department for an independent contractor exemption certificate.
As for 39-71-401(2)(r)(iii) and (2)(r)(iv):
(r) an officer of a quasi-public or a private corporation or, except as provided in subsection (3), a manager of a manager-managed limited liability company who qualifies under one or more of the following provisions:
- (i) the officer or manager is not engaged in the ordinary duties of a worker for the corporation or the limited liability company and does not receive any pay from the corporation or the limited liability company for performance of the duties;
- (ii) the officer or manager is engaged primarily in household employment for the corporation or the limited liability company;
- (iii) the officer or manager either:
- (A) owns 20% or more of the number of shares of stock in the corporation or owns 20% or more of the limited liability company; or
- (B) owns less than 20% of the number of shares of stock in the corporation or limited liability company if the officer's or manager's shares when aggregated with the shares owned by a person or persons listed in subsection (2)(r)(iv) total 20% or more of the number of shares in the corporation or limited liability company; or
- (iv) the officer or manager is the spouse, child, adopted child, stepchild, mother, father, son-in-law, daughter-in-law, nephew, niece, brother, or sister of a corporate officer who meets the requirements of subsection (2)(r)(iii)(A) or (2)(r)(iii)(B)
All of this is to say, IF you are a corporate officer or a manager of a manager-managed limited liability corporation (or a quasi-public or private corporation) AND you own 20% or more of the shares of stock in the corporation, you are exempt from the Workers' Compensation statute, unless you choose to be personally covered by a workers' compensation insurance policy.
We have several members who have followed this process successfully, have been audited by the IC Central Unit, and passed their scrutiny. Of course, you should review the law carefully or consult an attorney for the latest details. FOAM offers this information for your use, but we are NOT attorneys.
For more information, contact the Montana Secretary of State's office at (406) 444.2034. Download copies of the Limited Liability Corporation Articles of Organization and go online to submit your Annual report, due annually by March 15.
- How can I tell if a fishing outfitter or guide is licensed?
- Of course, you can ask to see their license. They are required to carry them in the field. If they are providing services in a boat, the craft must display a red-and-white sticker with their license number on it near the bow, oarlocks, or stern. If you know their license number, check the MBO License Search to see if they are currently licensed. It is ILLEGAL for an unlicensed outfitter or guide to provide services for compensation, and it is ILLEGAL to hire an unlicensed outfitter or guide.
- Who do I contact about unlicensed guiding or outfitting?
- You should contact a the Board of Outfitters,a local Fish, Wildlife & Parks warden, or TIP-MONT- 800-847-6668.
- How should I use a booking agent to help get me trips?
- If you decide to work with a booking agent, make sure you give them express permission to work for you as covered in the MBO rules
at 24.171.2301(1)(j). Write out and have all parties sign an agreement that explains just how the agent can work to get you trips
and include a description and/or terms regarding how they should:
- represent your services
- collect deposits or fees
- maintain business funds of yours in an account separate from their regular business account
- send potential clients a written copy of your deposit and refund policy
- and any other terms you consider important.
- Remind the agent that your name, business name, and outfitter license number must be displayed in all ads. Make it clear that you, as outfitter, are responsible for setting all terms and conditions with clients in accordance with MBO rules at 24.171.2301(1)(i).
- How do I become the "outfitter of record" for a business like a flyshop?
- For a business like a flyshop to offer guided fishing trips, they need an "outfitter of record" for the business. Since the business may be acting as a booking agent, the outfitter should set all terms and conditions of business as described above in the answer about using booking agents. Again, remember, it's your license and the right to offer outfitted and guided trips the business wants, so be cautious, maintain control over the booking details, and get everything in writing to protect yourself and your license.
- Where can I find the Board of Outfitters laws and regulations?
- Download MBO Laws and Rules from our site, or go online - Laws or Regulations - or by calling the MBO at (406) 841-2373.
- How does the Board of Outfitters 'complaint' process work?
- The MBO complaint process has several parts:
- The complaint: When a complaint is received by the Compliance Office, they will send a letter of acknowledgement to the person filing the complaint (Complainant), and a letter requesting a response from the licensee against whom the complaint was filed. The licensee may (and should .Ed) submit a written response addressing the complaint to the Compliance Office. The complainant is not entitled to a copy of this response. The Compliance Office will notify the licensee and the complainant regarding the date and time of any meeting during which the complaint/case will be discussed. Complaints remain confidential unless a Notice of Proposed Board Action is issued, which is a public document along with all subsequent legal document filings.
- Closed: Only the licensee, complainant, and/or attorneys for either can be in attendance. Minutes of closed meetings are not public documents available to the public.
- Open: A public meeting anyone can attend. The minutes of open meetings are public documents and are made available online via the Board's website.
- The Screening Panel: This is a commitee made up of members of the Board of Outfitters. The panel's job is to determine the preliminary action(s) to take on a complaint. Actions may include dismissal, investigation, or a finding
of Reasonable Cause. The Screening Panel is not a hearing; it is a review and discussion of the complaint and response to determine if disciplinary action is warranted. Typically, Screening Panel meetings are closed to the public.
Note: If both the licensee and the complainant waive their rights to privacy during a Screening Panel meeting, members of the public, including a FOAM representative, may attend. This FOAM representative is not legal counsel, but will be familar with the Board of Outfitters and the complaint and disciplinary process.
- Dismissal: If the Screening Panel dismisses a complaint, the dismissal can be with prejudice or without prejudice: with prejudice means the complaint is dismissed and cannot be considered by the Screening Panel in the future; without prejudice means the complaint is dismissed, but may be considered by the Screening Panel in the future if there are ever allegations of a similar nature.
- Investigation: Only a member of the Screening Panel can request an investigation. Once an investigation is requested, the case is assigned to an investigator who may request an interview with the licensee, the complainant, and/or other individuals. When the investigation is finished, a written report is submitted to the Screening Panel, which will then determine if there is Reasonable Cause to proceed with disciplinary action.
- Reasonable Cause: A finding by the Screening Panel that evidence exists that a violation of statutes and/or rules has occurred which warrants proceeding with disciplinary action.
- If Reasonable Cause is found, the Department Counsel issues a Notice of Proposed Board Action (Notice) to the licensee. Once a notice is issued, it is public information. A proposed Stipulation may be included with the notice.
- A stipulation is a tentative agreement between the licensee and the Department Counsel for settlement of the case. A stipulation is not finalized until it is approved by the Adjudication Panel. The licensee may either sign the stipulation or contest the proposed action of the stipulation by requesting an administrative Hearing, a legal process before a Hearing Examiner. If the licensee wishes to request a hearing, a written request must be received within twenty (20) days from receipt of the Notice of Proposed Board Action. Failure to either sign a stipulation or request a hearing withing the twenty (20) days may result in the issuing of a Final Order of Default against the licensee.
- Default: the licensee's acceptance of the disciplinary action demonstrated by failing to participate in the process.
- Adjudication Panel: This is a committee made up of members of the Board of Outfitters who are not on the Screening Panel. The Adjudication Panel determines the final outcome of a complaint case. The panel reviews the record to determine appropriate sanctions, including those outlined in a stipulation. Adjudication Panel meetings are open to the public. A Final Order is issued by the Adjudication Panel, completing the complaint process
- Common questions about the complaint process:
- Will my complaint remain confidential? The licensee receives a copy of the complaint in order to respond to the allegations made. The Screening Panel meeting is typically a closed meeting (see Note above under Screening Panel). However, if the board proceeds with disciplinary action, the notice (see above) is a public document as are all subsequent legal filings. All proceedings of a hearing requested by the licensee are open to the public, as is the Adjudication Panel meeting.
- Will I be allowed to present my case at the Screening Panel meeting? No, you will not have the opportunity to present testimony unless asked specific questions by the Screening Panel members or Board Counsel. You must present all pertinent information in your intial response to the complaint.
- Can the Department/Board offer me any legal advice? No. Department/Board staff can refer you to Board rules and statutes and answer questions about the complaint process, but the Department/Board represents neither licensees
nor complianants. Licensees involved in a complaint are encouraged to seek professional legal assistance if they feel then need legal advice or services.
Note: A FOAM representative may explain the complaint process in much more detail at your request, and, if you and the complainant waive your rights to privacy, a FOAM representative may attend the Screening Panel with you. This FOAM representative is not legal counsel, but will be familar with the Board of Outfitters and the complaint and disciplinary process.
- I have questions about the complaint process. Who should I contact? All correspondence from the Compliance Office will contain contact information for the Compliance Specialist assigned to your case. You may also access the Complaints section of the Montana state website. And, as noted above, a FOAM representative may help with questions about the complaint process.
- What is an Acknowledgement of Risk form? How do I use it?
- An acknowledgment of risk form is required by FOAM's liability insurance underwriter for every client and each trip. It informs your client(s) that there are risks involved in flyfishing, wading, and floating that are beyond your control, and asks that they sign and date the form as proof they acknowledge these risks. It is NOT a waiver of liability. You may download our recommended AR forms: one for a single client and one for up to four clients.
- What is a statewide FAS permit? How do I get one?
- The MT Dept. of Fish and Wildlife requires all licensed fishing outfitters and guides using their fishing access sites (FAS) to have a statewide FAS permit. It costs $100 annually, and you can apply online. Look for the 'Commercial Use' category, then select the Commercial FAS Permit, Licensed Outfitters and Guides. Most FOAM members buy this permit when they apply for their annual fishing license.