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Wrongful termination bill nears governor's desk
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Wrongful termination bill nears governor's desk


A proposal to extend workers' probationary periods, during which employers don’t need to show cause to fire new employees, passed the Senate on a nearly party-line preliminary vote Tuesday.

House Bill 254 needs a final Senate vote before it heads to Republican Gov. Greg Gianforte.

The legislation has earned the support of the Montana Chamber of Commerce, along with trade groups representing the railroad, logging and trucking industries. It extends the state’s default probationary employment period from six months to a year, if an employer doesn’t explicitly include that period in a contract. It sets a maximum length of those periods  at 18 months.

Montana State News Bureau Chief Holly Michels summarizes the day's news from the Montana Legislative session for March 16, 2021.

During that time, employers can fire workers for any reason, and are not subject to wrongful termination lawsuits in response. After that period, employers need to have a justification for a termination.

“Of all the bills we’re going to consider this session, this is probably one of the more important ones for the business community,” Sen. Steve Fitzpatrick, a Great Falls Republican carrying the bill, told the Senate during Tuesday’s floor session. “It really does modernize and update the Wrongful Discharge Act … I think in many circumstances, six months is just not enough time to find out whether the person you hired is a good fit or whether they can do the job that you’ve asked them to do.”

Business groups that supported the bill in committee had argued that for many workplaces, seasonal variations mean that an employee who performs well during a lull in business activity might struggle during the busier months. Providing for a longer term of at-will employment would let employers take a more comprehensive review of employee performance, they argued.

The bill also repeals laws specific to railroad employees and miners, which have been on Montana’s books for about a century. A spokesman for BNSF Railway Co. supported the change, telling the Senate Business and Labor Committee last week that subsequent court rulings had interpreted the turn-of-the-century statute as providing a basis for “negligent mismanagement” lawsuits by railroad employees, a legal feature unique to Montana.

The Brotherhood of Locomotive Engineers and Trainmen, however, strongly opposed the change, aligning with several other unions and labor groups. Bozeman Sen. Christopher Pope, a Democrat, echoed those arguments during a Tuesday floor speech.

“A 100-year-old statute … which for a century has protected our railway workers from injury or death, due to fellow worker or managerial negligence, is just summarily just repealed,” Pope said.

He added, “The bill weakens simple, basic and reasonable protections for workers, with no discernable upside for protecting the Montana workplace.”

Other labor groups, including the AFL-CIO, argued extending the probationary period could delay the effective date for some workers’ health insurance or other benefits to kick in, if their collective bargaining agreements tie their eligibility to the end of the probationary period.

The bill passed 28-22 on second reading, with only one Republican, Sen. Russ Tempel of Chester, joining Democrats to vote against it.

The Senate also gave preliminary approval to a bill allowing 16- and 17-year-olds to perform jobs currently considered too dangerous for minors under state law. House Bill 282 allows student employees under the supervision of an experienced worker to “perform any work function as required by the occupation.”

Senate Majority Leader Jason Ellsworth, R-Hamilton, is carrying the bill in the Senate, and called it “one of the best bills I’ve heard in committee.”

Sen. Carlie Boland, D-Great Falls, said she liked the idea, but argued against allowing student employees to perform work related to a list of 17 occupations identified in state law as too dangerous for minors to perform. The list includes logging, manufacturing or storing explosives, mining, and operating a range of power tools and equipment.

Several Republican senators responded by citing their own work experience in those trades.

“When I was a kid, a long time ago, we didn’t have student learners, we had jobs before school and jobs after school,” Sen. John Esp, of Big Timber, said. “Looking at this list, I performed seven of those dangerous occupations before I turned 18. I have all my fingers, all my toes, everything. I think this will be fine.”

The bill passed second reading with bipartisan support, 35-15.

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