Frequently Asked Questions
- As a member how can I best represent FOAM when I’m working?
- How are outfitters and guides licensed in Montana?
- Can FOAM help me apply for a fishing guide or outfitter license?
- How can I tell if a fishing outfitter or guide is licensed?
- What should I do if I see someone who’s not licensed as a guide or outfitter
- providing fishing (or hunting) services?
- How can a guide work for several different outfitters?
- What is an Independent Contractor?
- How do I get an Independent Contractor Exemption Certificate (ICEC)?
- How should I use a booking agent to help get me trips?
- How do I become the “outfitter of record” for a business like a flyshop?
- Where can I find Board of Outfitters laws and regulations?
- When does the FOAM board of directors meet?
As a member, how can I best represent FOAM when I’m working?
Follow FOAM’s Code of Ethics and our River Etiquette guidelines. As a professional, you are held to a higher standard and should always provide your services with courtesy and competence, while demonstrating consideration for your clients and respect for your fellow anglers, boaters, recreationists, and landowners.
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 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 name or 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.
What should I do if I witness unlicensed practice by someone acting as a guide or outfitter?
You should contact a the MBO, a local Fish, Wildlife & Parks warden, or TIP-MONT, 800-847-6668.
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.”
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) 444-1446, 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) 444-1446, for an application. As noted 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 applications page for FOAM member liability coverage.
- a list of your equipment (boat(s), trailer, oars, life vests, etc.) with approximate value (6 points)
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 will be acting as an agent, the outfitter should set all terms and conditions of business as described above. 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 review copies of the Board of Outfitters laws and regulations?
Online – Laws or Regulations – or by calling the MBO at (406) 841-2373.
When does the FOAM Board of Directors meet?
The FOAM Board of Directors meets monthly, September through June either by conference call or in person at various places around the state. Check the News section of this site or contact your director for specifics.