Why Job Performance Documentation Matters: Employment Termination in Montana

By T. Mickell Jimenez

  1. The article is intended for CSS local Utah, regional Midwest, and national clients who may either do business or employee individuals in the state of Montana.
  2. This article is not intended as legal advice. Readers should contact CSS employment law group to discuss their specific employment needs and engage the firm to provide legal advice and representation.

Montana is currently the only state in the U.S. that statutorily modifies at-will employment after completion of a probationary employment period. While employers may proscribe a specific probationary period, absent that policy, under Montana law the probationary period is six (6) months. See MCA §39-2-904 (2)(a)-(b). At the conclusion of the probationary period, an employer may only terminate for good cause.

Montana’s Wrongful Discharge from Employment Act includes the framework for the presumptive probationary period, and sets forth the only three ways an employer can be held liable for wrongful discharge under state law:

  • If the discharge1 was in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy;
  • the discharge was not for good cause and the employee had completed the employer's probationary period of employment; or
  • the employer violated the express provisions of its own written personnel policy.

See MCA § 39-2-901 et seq. Otherwise, an employer may discharge an employee for “good cause.” “Good cause" is defined in the statute as “reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer's operation, or other legitimate business reason.” MCA § 39-2-903 (see full text of statute for certain off-premises use exceptions).


(1) Employers should diligently document any deficiencies in job performance, violations of company policies, or employee misconduct. Documentation should be transmitted to and maintained in the employee’s personnel file for the duration of employment and for two years after employment termination consistent with federal law. Per Montana state law, claims for wrongful discharge must be brought within one year of the date of discharge. If the employer maintains written internal procedures that allow an employee to appeal a discharge, the employee must first exhaust those internal procedures. See MCA § 39-2-911 (1)-(3).

Did you read that correctly, internal appeals process? Yes, unique to Montana, if an employer maintains an internal written procedure by which an employee may appeal a discharge, and the employer provides the employee with a copy of the policy and procedure within seven days of the date of the discharge, it is a complete defense to a wrongful discharge claim if the employee fails to utilize the procedure. While adoption of such an internal appeals process may not fit the needs of your business, discussion of whether or not to implement such a system is a worthwhile exercise.

(2) Bonus takeaway: Montana employers cannot refuse to employ or discriminate against an individual who uses a lawful product off premises during non-working hours. See MCA § 39-2-903 and 39-2-313(3)-(4).

(3) Bonus takeaway: When an employee is terminated for cause or laid off, all wages due are immediately payable, unless the employer has a pre-existing written policy extending the time for the payment to the next regular payday or within 15 days from the separation, whichever occurs first; or certain theft of property or funds have occurred in connection with the employee’s work. See MCA §39-3-205 (2).

When an employee separates from employment, all unpaid are due and payable on the next regular payday for the period in which the separation occurred, or 15 calendar days from the date of employment separation, whichever occurs first. See MCA §39-3-205 (1).


 1Discharge as defined in the statute includes a constructive discharge, resignation, elimination of the job, layoff for lack of work, failure to recall or rehire, and any other cutback in the number of employees for a legitimate business reason. See MCA §39-2-903(2).