CHAPTER 336 Department of Labor

Department of Labor

336.010. Definitions for chapter.

As used in this chapter, unless the context requires otherwise:

  1. “Secretary” means secretary of the Labor Cabinet; and
  2. “Cabinet” means Labor Cabinet.

History. 1599c-4: amend. Acts 1984, ch. 414, § 8, effective July 13, 1984; 2005, ch. 123, § 32, effective June 20, 2005; 2010, ch. 24, § 1699, effective July 15, 2010.

NOTES TO DECISIONS

Cited:

Burrow v. Kapfhammer, 284 Ky. 753 , 145 S.W.2d 1067, 1940 Ky. LEXIS 577 ( Ky. 1940 ).

336.015. Labor Cabinet — Organization and personnel — Responsibility of secretary — Agencies attached for administrative purposes.

  1. The secretary of the Labor Cabinet shall have the duties, responsibilities, power, and authority relating to labor, wages and hours, occupational safety and health of employees, child labor, workers’ compensation, and all other matters previously under the jurisdiction of the Department of Labor.
  2. The Labor Cabinet shall consist of the Office of the Secretary, the Department of Workers’ Claims, and the Department of Workplace Standards.
  3. The following agencies are attached to the cabinet for administrative purposes only:
    1. Kentucky Occupational Safety and Health Review Commission;
    2. State Labor Relations Board;
    3. Workers’ Compensation Funding Commission;
    4. Occupational Safety and Health Standards Board;
    5. Employers’ Mutual Insurance Authority; and
    6. Workers’ Compensation Nominating Committee.

HISTORY: Enact. Acts 1984, ch. 414, § 3, effective July 13, 1984; 1987 (Ex. Sess.), ch. 1, § 1, effective January 4, 1988; 1992, ch. 13, § 11, effective July 14, 1992; 1994, ch. 181, § 2, effective April 4, 1994; 1998, ch. 579, § 3, effective July 15, 1998; 2001, ch. 5, § 1, effective June 21, 2001; 2005, ch. 123, § 33, effective June 20, 2005; 2010, ch. 24, § 1700, effective July 15, 2010; 2017 ch. 3, § 4, effective January 9, 2017; 2017 ch. 80, § 24, effective June 29, 2017; 2017 ch. 83, § 3, effective June 29, 2017; 2018 ch. 31, § 4, effective July 14, 2018; 2019 ch. 173, § 3, effective June 27, 2019.

336.020. Departments of Workplace Standards and Workers’ Claims — Offices in Labor Cabinet.

  1. The Department of Workplace Standards shall be headed by a commissioner appointed by the Governor in accordance with KRS 12.040 and shall be divided for administrative purposes into the Division of Occupational Safety and Health Compliance, the Division of Occupational Safety and Health Education and Training, and the Division of Wages and Hours. Each of these divisions shall be headed by a director appointed by the secretary and approved by the Governor in accordance with KRS 12.050 .
  2. The Department of Workers’ Claims shall be headed by a commissioner appointed by the Governor, and confirmed by the Senate in accordance with KRS 342.228 . The department shall be divided for administrative purposes into the Office of Administrative Law Judges, the Division of Claims Processing, the Division of Security and Compliance, the Division of Workers’ Compensation Funds, and the Division of Specialist and Medical Services. The Office of Administrative Law Judges shall be headed by a chief administrative law judge appointed in accordance with KRS 342.230 . Each division in the department shall be headed by a director appointed by the secretary and approved by the Governor in accordance with KRS 12.050 . The Workers’ Compensation Board shall be attached to the Department of Workers’ Claims for administrative purposes only.
  3. The Office of General Counsel for the Labor Cabinet, the Office of Administrative Services, and the Office of Inspector General are attached to the Office of the Secretary of the Labor Cabinet.
    1. The Office of General Counsel for the Labor Cabinet shall be headed by a general counsel appointed by the secretary with approval by the Governor in accordance with KRS 12.050 and 12.210 . (4) (a) The Office of General Counsel for the Labor Cabinet shall be headed by a general counsel appointed by the secretary with approval by the Governor in accordance with KRS 12.050 and 12.210 .
    2. The Office of General Counsel shall be divided for administrative purposes into the Workplace Standards Legal Division and the Workers’ Claims Legal Division.
    3. Each legal division shall be headed by a general counsel appointed by the secretary with approval by the Governor in accordance with KRS 12.050 and 12.210.
    1. The Office of Administrative Services shall be headed by an executive director appointed by the Governor in accordance with KRS 12.040 . (5) (a) The Office of Administrative Services shall be headed by an executive director appointed by the Governor in accordance with KRS 12.040 .
    2. The Office of Administrative Services shall be divided for administrative purposes into the Division of Fiscal Management, the Division of Human Resources Management, the Division of Information Technology and Support Services, and the Division of Professional Development and Organizational Management. Each division shall be headed by a director appointed by the secretary and approved by the Governor in accordance with KRS 12.050 .
  4. The Office of Inspector General shall be headed by an executive director appointed by the Governor in accordance with KRS 12.040 .

HISTORY: 4618-111, 474g-4: amend. Acts 1942, ch. 19, § 2; 1966, ch. 255, § 252; 1984, ch. 414, § 9, effective July 13, 1984; 1987 (Ex. Sess.), ch. 1, § 2, effective January 4, 1988; 1994, ch. 181, § 3, effective April 4, 1994; 1998, ch. 579, § 4, effective July 15, 1998; 2002, ch. 246, § 6, effective July 15, 2002; 2005, ch. 123, § 34, effective June 20, 2005; 2010, ch. 24, § 1701, effective July 15, 2010; 2017 ch. 80, § 25, effective June 29, 2017; 2017 ch. 82, § 2, effective June 29, 2017; 2017 ch. 83, § 4, effective June 29, 2017; 2017 ch. 134, § 2, effective June 29, 2017; 2018 ch. 31, § 5, effective July 14, 2018; 2019 ch. 146, § 55, effective June 27, 2019; 2019 ch. 173, § 4, effective June 27, 2019.

Legislative Research Commission Notes.

(6/27/2019). This statute was amended by 2019 Ky. Acts chs. 146 and 173, which are identical and have been codified together.

Research References and Practice Aids

Cross-References.

Bond of commissioner, KRS 62.160 , 62.180 .

Department heads, appointment, compensation, KRS 12.040 .

Department heads to report to Governor, KRS 12.110 .

336.030. Employees — Appointment — Salaries.

The secretary, with the approval of the Governor, shall appoint necessary deputies, attorneys, statisticians, inspectors and other employees and fix their salaries according to law. These employees shall receive their actual necessary expenses.

History. 1599c-6, 4767a-3; 2005, ch. 123, § 35, effective June 20, 2005; 2010, ch. 24, § 1702, effective July 15, 2010.

Research References and Practice Aids

Cross-References.

Administrative department staffs, appointment, KRS 12.070 .

Attorneys for state agencies, employment of, KRS 12.210 .

336.040. Functions and duties of Labor Cabinet.

  1. The Labor Cabinet shall exercise all administrative functions of the state concerned with employer-employee relationships, including the safety of workers and workers’ compensation.
  2. The cabinet shall:
    1. Promote friendly and cooperative relations between employers and employees;
    2. Accumulate and publish industrial statistics and aid and encourage the development of new industries and the expansion of existing industries in Kentucky;
    3. Encourage, promote, and develop fair practices both by employers and employees; discourage and eliminate as far as practicable all unfair practices by either; and enforce laws relating to unfair practices;
    4. Foster, promote, and develop the welfare of both wage earners and industries in Kentucky;
    5. Improve working and living conditions of employees, and advance their opportunities for profitable employment; and
    6. Inquire into the causes of accidental injuries and occupational diseases arising out of and in the course of employment, and advance measures for the prevention of accidents and occupational diseases and for the improvement of sanitary conditions in places of employment.

History. 1599c-7, 4618-110: amend. Acts 1966, ch. 255, § 253; 1994, ch. 181, § 4, effective April 4, 1994; 2010, ch. 24, § 1703, effective July 15, 2010.

NOTES TO DECISIONS

1.Powers of Commissioners.

There is nothing in the provisions of this chapter authorizing the Commissioner of Industrial Relations (now Secretary of Labor) to require an employer to consent to a collective bargaining election on his premises during business hours. Blue Boar Cafeteria Co. v. Hackett, 312 Ky. 288 , 227 S.W.2d 199, 1950 Ky. LEXIS 637 ( Ky. 1950 ).

Cited:

Fraysure v. Kentucky Unemployment Compensation Com., 305 Ky. 164 , 202 S.W.2d 377, 1947 Ky. LEXIS 709 ( Ky. 1947 ).

Research References and Practice Aids

Cross-References.

Apprenticeship and training council, KRS 343.020 .

Laborer on public works may file complaint with Cabinet, KRS 337.550 .

Safety and health of employees, KRS Chapter 338.

Unemployment Insurance Commission, KRS 341.110 .

Wages and hours, KRS Chapter 337.

Workers’ Compensation Board, KRS 342.215 .

Kentucky Law Journal.

Johnson, The Development of Labor Management Legislation in Kentucky, 45 Ky. L.J. 40 (1956).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Kentucky Department of Labor Forms, § 287.00.

336.045. Administration and supervision of state employment offices Regional free public offices — Wagner-Peyser Act.

  1. The Labor Cabinet shall administer and supervise state employment offices and perform any other duties within the Act of Congress entitled “An Act to provide for the establishment of a National Employment Service and for Cooperation with the State in the Promotion of Such System and for Other Purposes,” approved June 6, 1933 (48 Stat. 113, U.S.C., Title 29, sec. 49(c)), as amended, and known as the Wagner-Peyser Act. All duties and powers relating to the establishment, maintenance, and operation of free public employment offices are vested in the Labor Cabinet, except that on or before April 15, 2021, there shall be twelve (12) regional full-time free public employment offices open, fully operational, and staffed by properly trained unemployment insurance specialists in each of the regions where the secretary has determined there is an average unemployment rate above five percent (5%) for the preceding six (6) month period ending either on June 30 or December 31. The Labor Cabinet may, at its discretion, open and operate additional free public employment satellite offices on a full or partial schedule.
  2. The provisions of the Wagner-Peyser Act, as amended, are accepted by this state in conformity with Section 4 of that Act, and this state will observe and comply with the requirements of that Act. The Labor Cabinet is designated and constituted the agency of this state for the purposes of the Wagner-Peyser Act.

HISTORY: Renumbered from § 151B.285 by 2021 ch. 184, § 2, effective April 5, 2021.

Compiler's Notes

This section was formerly compiled as KRS 151B.285 and was renumbered as this section effective April 5, 2021.

336.050. Duties of secretary.

  1. The secretary in person or by representative shall:
    1. Investigate and ascertain the wages of all employees employed in this state;
    2. Enter the place of business or employment of any employer of employees to examine and inspect all books, registers, payrolls, and other records that have a bearing upon the question of wages of employees and to ascertain whether the orders of the secretary are complied with; and
    3. Require from the employer a full and correct statement in writing when the secretary or the secretary’s representative considers it necessary, of the wages paid to all employees in his or her employment.
  2. The secretary in person or by representative may prosecute any violation of any of the provisions of any law which it is his or her duty to administer or enforce. The secretary may enter into reciprocal agreements with the corresponding labor agency or official of any other state to collect in the other state claims assigned to the secretary. To the extent allowed by a reciprocal agreement, the secretary may maintain actions in the courts of another state to collect claims and judgments for wages and assign claims and judgments to the agency or official of another state for collection. If a reciprocal agreement extends a like comity to cases arising in the Commonwealth, the secretary may maintain actions in the courts of the Commonwealth to collect claims and judgments for wages arising in the other state in the same manner and to the same extent that actions are authorized when arising in the Commonwealth.

HISTORY: 1599c-39, 4767a-3: amend. Acts 1974, ch. 64, § 1; 1974, ch. 386, § 59; 1998, ch. 241, § 1, effective July 15, 1998; 2010, ch. 24, § 1704, effective July 15, 2010; 2017 ch. 134, § 4, effective June 29, 2017.

NOTES TO DECISIONS

Cited:

Cabe v. Kitchen, 415 S.W.2d 96, 1967 Ky. LEXIS 300 ( Ky. 1967 ); Board of Trustees v. Public Employees Council No. 51 American Federation of States, etc, 571 S.W.2d 616, 1978 Ky. LEXIS 393 ( Ky. 1978 ).

Research References and Practice Aids

Cross-References.

Department heads to exercise powers and perform functions of Department, KRS 12.040 .

Northern Kentucky Law Review.

Zielke, Public Sector Labor Law in Kentucky, 6 N. Ky. L. Rev. 327 (1979).

336.060. Authority to issue and serve subpoenas and take depositions — Enforcement of subpoenas.

  1. In the conduct of an investigation or hearing, the secretary or any authorized deputy may issue subpoenas to compel the attendance of witnesses and parties and the production of books, papers, and records competent and relevant to the matter under investigation; administer oaths; examine witnesses under oath; take the verification or proof of written instruments; and take testimony, depositions, and affidavits to carry out any law over which the cabinet has jurisdiction.
  2. When a person fails to comply with a cabinet subpoena, the Circuit Court of the county in which the person is found, resides, or has his principal place of business may, upon application of the secretary, his or her authorized representatives, or the party requesting the subpoena, issue an order requiring compliance. In any proceeding brought under this section, the Circuit Court having issued said order of compliance may modify or set aside the subpoena.
  3. Subpoenas issued under this section may be served by an inspector or other authorized representative of the cabinet, at any place in the state.

History. 1599c-12, 1599c-13, 4767a-3: amend. Acts 1946, ch. 244; 1980, ch. 191, § 1, effective July 15, 1980; 2010, ch. 24, § 1705, effective July 15, 2010.

NOTES TO DECISIONS

1.Hearing on Wages.

Secretary of Labor was authorized to hold hearing on employer’s liability for difference between wages paid and minimum wages and injunction prohibiting same was improperly issued. Cabe v. Eubanks, 411 S.W.2d 334, 1967 Ky. LEXIS 467 ( Ky. 1967 ).

2.Records.

Fact that records are required to be kept for at least one year does not restrict the Secretary’s rights of inspection to records kept during that period, and subpoena for records in existence prior to the one-year period is valid. Cabe v. Kitchen, 415 S.W.2d 96, 1967 Ky. LEXIS 300 ( Ky. 1967 ).

Safety audits would assist in determining whether there were unaddressed health and safety issues, and safety audits performed by the subject of the investigation were relevant because they were directly related to the purpose of the inspection; Kentucky’s Division of Occupational Safety and Health Compliance had the authority to subpoena the safety audits. Reynolds Consumer Prods., LLC v. Comm'r of the Dep't of Workplace Stds., 592 S.W.3d 758, 2020 Ky. App. LEXIS 2 (Ky. Ct. App. 2020).

There was no genuine dispute that what the Kentucky’s Division of Occupational Safety and Health Compliance (KOSH) sought was prepared in anticipation of litigation in Virginia regarding a specific accident there, and in considering whether the privilege remains viable when a party seeks to discover the work product in a subsequent, unrelated matter, the court concludes that it does. Reynolds Consumer Prods., LLC v. Comm'r of the Dep't of Workplace Stds., 592 S.W.3d 758, 2020 Ky. App. LEXIS 2 (Ky. Ct. App. 2020).

Research References and Practice Aids

Cross-References.

Administrative department officers may examine witnesses under oath, KRS 12.120 .

336.070. Investigation of working conditions.

The cabinet shall make investigations, collect and compile statistics and report on the conditions of industries, labor and unemployment, and upon all matters relating to employer-employee relations and working conditions. Complete permanent records shall be made of all investigations, showing date of examination, condition in which the establishment was found, and changes ordered.

History. 33a-7, 1599c-9; 2010, ch. 24, § 1706, effective July 15, 2010.

NOTES TO DECISIONS

Cited:

Cabe v. Eubanks, 411 S.W.2d 334, 1967 Ky. LEXIS 467 ( Ky. 1967 ).

336.075. Reports of human trafficking — Immunity.

  1. The cabinet shall report all incidents of human trafficking as defined in KRS 529.010 about which the cabinet knows or has reasonable cause to believe within twenty-four (24) hours to a local law enforcement agency or the Department of Kentucky State Police, and the appropriate Commonwealth’s attorney or county attorney.
  2. Anyone acting upon reasonable cause in the making of a report under subsection (1) of this section in good faith shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed.

History. Enact. Acts 2013, ch. 25, § 24, effective June 25, 2013.

336.080. Inspection of places of employment.

The secretary may have inspected any place of employment affected by or subject to any law of this state relating to the employment of labor, except places of employment within the jurisdiction of the Department for Natural Resources. In the discharge of his or her duties, the secretary or the secretary’s authorized deputy may enter places of employment at any reasonable time. Upon request, the cabinet shall furnish to any employer a detailed report of any inspection in his or her place of business.

History. 33a-6, 1599c-10; 2010, ch. 24, § 1707, effective July 15, 2010.

NOTES TO DECISIONS

Cited:

Blue Boar Cafeteria Co. v. Hackett, 312 Ky. 288 , 227 S.W.2d 199, 1950 Ky. LEXIS 637 ( Ky. 1950 ).

Research References and Practice Aids

Cross-References.

Inspection of places where minors are employed, KRS 339.450 .

336.090. Inspectors to report violations of health and fire laws and rulings.

  1. The cabinet shall be furnished with a copy of all the laws and rulings of the secretary for health and family services affecting sanitary conditions in places of employment, not covered by the labor laws of the state, and shall report in writing to the state, county, or city health authorities any violations coming under the observation of its inspectors while visiting places of employment in the regular performance of their duty.
  2. The inspectors shall be furnished with a copy of all the laws and rulings of the Department of Housing, Buildings and Construction relating to fire hazards in places of employment, and shall report in writing to the state, county, or city authorities any violations coming under their observation while visiting places of employment in the regular performance of their duty.

History. 33a-10: amend. Acts 1966, ch. 255, § 254; 1974, ch. 74, Art. V, § 24(1), VI, § 107(1); 1998, ch. 426, § 557, effective July 15, 1998; 2005, ch. 99, § 606, effective June 20, 2005; 2010, ch. 24, § 1708, effective July 15, 2010.

Legislative Research Commission Notes.

(4/2/90, as revised 7/14/2000). In 1974, certain responsibilities of the Department of Public Safety were transferred to the Department of Insurance through the enactment of KRS 304.2-015 . See 1974 Ky. Acts ch. 74, art. V, § 20. This statute was renumbered as the former KRS 198B.035 (repealed 2000 Ky. Acts ch. 270, sec. 10, effective July 14, 2000) in 1980 and amended to place these responsibilities in the Department of Housing, Buildings and Construction. See 1980 Ky. Acts ch. 188, § 243. Accordingly, the prior reference to the Department of Public Safety contained in subsection (2) of this section has been changed to the Department of Housing, Buildings and Construction by the Reviser of Statutes acting pursuant to KRS 7.136(2).

Research References and Practice Aids

Cross-References.

Administrative agencies to cooperate, KRS 12.090 .

336.100. Notice of occupancy of place of employment to be given.

Within one (1) month after any employer begins to occupy a factory, workshop, mill, or other place of employment he or she shall notify the cabinet, in writing, of such occupancy. If the employer is a corporation, the notice shall state the legal title of the corporation and name of an agent upon whom service of summons can be made; and if a firm, the individual names of members of the firm and its legal title.

History. 33a-11; 2010, ch. 24, § 1709, effective July 15, 2010.

336.110. Unlawful to refuse to admit inspector.

No person shall refuse or attempt to prevent the admission of any inspector of the cabinet to any place which he or she is required by law to inspect, at any reasonable hour, or during the working hours of the persons employed there, or interfere with the performance of the official duties of any inspector.

History. 33a-8; 2010, ch. 24, § 1710, effective July 15, 2010.

NOTES TO DECISIONS

Cited:

Blue Boar Cafeteria Co. v. Hackett, 312 Ky. 288 , 227 S.W.2d 199, 1950 Ky. LEXIS 637 ( Ky. 1950 ).

336.120. Cooperation with federal agencies.

The secretary, with the approval of the Governor, may enter into cooperative agreements with appropriate agencies of the federal government, whereby Acts of Congress and regulations issued in pursuance thereof affecting the employment of labor within this state may be administered, supervised, inspected, and enforced by the cabinet. Similar agreements may be entered into by the secretary with the approval of the Governor, for the cooperation of federal agencies in the enforcement of state laws whose enforcement is vested in the secretary.

History. 1599c-14; 2010, ch. 24, § 1711, effective July 15, 2010.

336.125. Criminal background check for employees of Labor Cabinet with access to federal tax information.

  1. The Labor Cabinet shall require a national and state criminal background check for every prospective and current employee of the cabinet or its agencies, including contract staff, who has access to or use of federal tax information. The criminal background investigation shall be by means of a fingerprint check by the Department of Kentucky State Police and Federal Bureau of Investigation, pursuant to the following requirements:
    1. The cabinet shall require each employee who has access to or use of federal tax information to submit a complete and legible set of fingerprints to the Department of Kentucky State Police on a fingerprint card issued by the Federal Bureau of Investigation;
    2. The Department of Kentucky State Police shall submit the fingerprint card to the Federal Bureau of Investigation for a national criminal background check after a state criminal background check is conducted;
    3. The results of a national and state criminal background check shall not be distributed or otherwise released by the cabinet, except that:
      1. The cabinet shall provide an employee the results of his or her national and state criminal background check upon request; and
      2. The cabinet may introduce the results, under seal, as evidence in a legal proceeding that involves a challenge to any personnel action taken by the cabinet which is based in whole or in part on information contained in the results; and
    4. Any fee charged by the Department of Kentucky State Police or the Federal Bureau of Investigation shall be an amount no greater than the actual cost of processing the request and conducting the background check.
  2. The Labor Cabinet or its offices, departments, and agencies shall promulgate administrative regulations in accordance with KRS Chapter 13A to implement this section.

HISTORY: 2021 ch. 184, § 1, effective April 5, 2021.

336.130. Employees may organize, bargain collectively, strike, picket — Conduct prohibited — Effect of violence or injury to person or property.

  1. Employees may, free from restraint or coercion by the employers or their agents, associate collectively for self-organization and designate collectively representatives of their own choosing to negotiate the terms and conditions of their employment to effectively promote their own rights and general welfare. Employees, collectively and individually, may strike, engage in peaceful picketing, and assemble collectively for peaceful purposes, except that no public employee, collectively or individually, may engage in a strike or a work stoppage. Nothing in KRS 65.015 , 67A.6904 , 67C.406 , 70.262 , 78.740 , 78.480 , 336.132 , 336.134 , 336.180 , 336.990 , and 345.050 shall be construed as altering, amending, granting, or removing the rights of public employees to associate collectively for self-organization and designate collectively representatives of their own choosing to negotiate the terms and conditions of their employment to effectively promote their own rights and general welfare.
  2. Neither employers or their agents nor employees or associations, organizations or groups of employees shall engage or be permitted to engage in unfair or illegal acts or practices or resort to violence, intimidation, threats or coercion.
    1. Notwithstanding subsection (1) of this section or any provision of the Kentucky Revised Statutes to the contrary, no employee shall be required, as a condition of employment or continuation of employment, to: (3) (a) Notwithstanding subsection (1) of this section or any provision of the Kentucky Revised Statutes to the contrary, no employee shall be required, as a condition of employment or continuation of employment, to:
      1. Become or remain a member of a labor organization;
      2. Pay any dues, fees, assessments, or other similar charges of any kind or amount to a labor organization; or
      3. Pay to any charity or other third party, in lieu of these payments, any amount equivalent to or pro rata portion of dues, fees, assessments, or other charges required of a labor organization.
    2. As used in this subsection, the term “employee” means any person employed by or suffered or permitted to work for a public or private employer.
  3. The secretary of the Labor Cabinet or his or her representative shall investigate complaints of violations or threatened violations of subsection (3) of this section and may initiate enforcement of a criminal penalty by causing a complaint to be filed with the appropriate local prosecutor and ensure effective enforcement.
  4. Except in instances where violence, personal injury, or damage to property have occurred and such occurrence is supported by an affidavit setting forth the facts and circumstances surrounding such incidents, the employees and their agents shall not be restrained or enjoined from exercising the rights granted them in subsection (1) of this section without a hearing first being held, unless the employees or their agents are engaged in a strike in violation of a “no strike” clause in their labor contract.
  5. Submission of a false affidavit concerning violence, personal injury, or damage to property shall constitute a violation of KRS 523.030 . In the absence of any such affidavit alleging violence, personal injury, or damage injunctions shall be issued only by a Circuit Judge or other justice or judge acting as a Circuit Judge pursuant to law.

History. 1599c-28: amend. Acts 1978, ch. 134, § 1, effective June 17, 1978; 2017 ch. 1, § 1, effective January 9, 2017.

NOTES TO DECISIONS

1.Constitutionality.

Union’s representation of a nonmember employee through collective bargaining or grievance processing serves the union’s interest, irrespective of whether it receives an agency fee, and a union is not “compelled” by 2017 Ky. Acts 1 to represent nonmembers without compensation; because exclusive designation fully and adequately compensates unions for free-riders, the Act does not constitute a taking of private property without compensation. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

Legislature did not impermissibly designate 2017 Ky. Acts 1 as emergency legislation because its proffered reason for an emergency had a rational basis. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

2.Picketing.

This section does not announce a public policy that prohibits peaceful picketing. Whitt v. Stephens, 246 S.W.2d 996, 1951 Ky. LEXIS 1280 ( Ky. 1951 ).

An injunction which had been granted restraining union from picketing employer’s place of business could not be extended to restrain representatives of the union from attempting to persuade customers of the employer to cease doing business with the employer as long as the employer remained nonunion and in absence of violence, intimidation, threats or coercion. Amalgamated Meat Cutters etc. Workers v. F. B. Purnell Sausage Co., 264 S.W.2d 870, 1953 Ky. LEXIS 1270 (Ky. Ct. App. 1953).

Peaceful picketing comes within the area of speech and is protected by the United States Const., Amend. 14. Cantrell v. Food Store Employees' Union, 309 S.W.2d 335, 1957 Ky. LEXIS 151 ( Ky. 1957 ).

The inquiry in every case involving picketing in this jurisdiction, where a bona fide labor dispute has developed between the employer and the employed, is whether the actual communication of facts and ideas has been departed from to the extent that the statutory or common law of this state and particularly this section is being violated. Cantrell v. Food Store Employees' Union, 309 S.W.2d 335, 1957 Ky. LEXIS 151 ( Ky. 1957 ).

3.Collective Action.

An act by an employer which would be a crime or a violation of a legislative enactment or contrary to a defined public policy is not a proper object of concerted action against him by workers. Broadway & Fourth Ave. Realty Co. v. Hotel & Restaurant Employees Union, 244 S.W.2d 746, 1951 Ky. LEXIS 1241 ( Ky. 1951 ). See Blue Boar Cafeteria Co. v. Hotel & Restaurant Employees & Bartenders International Union, 254 S.W.2d 335, 1952 Ky. LEXIS 1130 ( Ky. 1952 ), cert. denied, 346 U.S. 834, 74 S. Ct. 41, 98 L. Ed. 357, 1953 U.S. LEXIS 2639 (U.S. 1953).

Anything that is proper for employees to do individually may be done either collectively or by their properly designated agent. R. H. Hobbs Co. v. Christian, 325 S.W.2d 329, 1959 Ky. LEXIS 54 ( Ky. 1959 ).

4.— Limitations.

Although the right of collective bargaining is established, a union may not bind its members individually to accept a specific wage, or serve for a definite period, or to surrender personal rights. Braddom v. Three Point Coal Corp., 288 Ky. 734 , 157 S.W.2d 349, 1941 Ky. LEXIS 200 ( Ky. 1941 ).

5.Bargaining Agent.

Members of a labor organization may select a bargaining agency of their choice for the accomplishment of the purposes noted. Cantrell v. Food Store Employees' Union, 309 S.W.2d 335, 1957 Ky. LEXIS 151 ( Ky. 1957 ).

6.Representation Election.

Nowhere can there be found any right to invade an employer’s premises for the purpose of taking the consensus of his employees with respect to choosing an agent to represent them collectively, or any power to compel obedience of an order of the Commissioner to consent to his doing so on the employer’s time. Blue Boar Cafeteria Co. v. Hackett, 312 Ky. 288 , 227 S.W.2d 199, 1950 Ky. LEXIS 637 ( Ky. 1950 ).

7.Discharge of Employee.

Discharge of employee because he had authorized a labor union to represent him for the purpose of collective bargaining is a violation of this section. Pari-Mutuel Clerks' Union v. Kentucky Jockey Club, 551 S.W.2d 801, 1977 Ky. LEXIS 457 ( Ky. 1977 ).

8.— Punitive Damages.

Lower court did not err by allowing recovery of punitive damages in action by employees for wrongful termination as a result of union activity where evidence demonstrated a violation of this section, employees were threatened about attending a union meeting and employees were dismissed after attending such meeting and instructions and jury assessments were in line with KRS 411.184 and 411.186 . Simpson County Steeplechase Ass'n v. Roberts, 898 S.W.2d 523, 1995 Ky. App. LEXIS 74 (Ky. Ct. App. 1995).

9.Public Employees.

As the original law pertaining to employer-employee relationship clearly and expressly excluded public employees from the granted right to strike, the inadvertent omission of the exclusion of public employees from the granted right to strike in this chapter when the statutes were revised could not be considered a grant of such right. Jefferson County Teachers Asso. v. Board of Education, 463 S.W.2d 627, 1970 Ky. LEXIS 661 ( Ky. 1970 ), cert. denied, 404 U.S. 865, 92 S. Ct. 75, 30 L. Ed. 2d 109, 1971 U.S. LEXIS 3701 (U.S. 1971).

There is a reasonable basis for distinguishing between private and public employees, particularly in the area of the right to strike, and to treat them differently is not a denial of equal protection in the constitutional sense. Jefferson County Teachers Asso. v. Board of Education, 463 S.W.2d 627, 1970 Ky. LEXIS 661 ( Ky. 1970 ), cert. denied, 404 U.S. 865, 92 S. Ct. 75, 30 L. Ed. 2d 109, 1971 U.S. LEXIS 3701 (U.S. 1971).

The right to join a union emanates from the rights of freedom of expression and association guaranteed by the Constitution of Kentucky and the United States Constitution, and the Board of Trustees of the University of Kentucky may not, without showing a paramount public interest, lawfully prohibit its nonacademic employees from membership in a union. Board of Trustees v. Public Employees Council No. 51 American Federation of States, etc, 571 S.W.2d 616, 1978 Ky. LEXIS 393 ( Ky. 1978 ).

There is no duty placed by the legislature on the Board of Trustees of the University of Kentucky to recognize, negotiate or bargain with the group of nonacademic employees. Board of Trustees v. Public Employees Council No. 51 American Federation of States, etc, 571 S.W.2d 616, 1978 Ky. LEXIS 393 ( Ky. 1978 ).

10.Supervisors.

Supervisors as contrasted with employees could be enjoined by the courts from engaging in concerted activities, including picketing, for the purpose of securing recognition by their employer of a local union composed of supervisors only, to which they belong, as their collective bargaining agent. Marine Officers Asso. v. Ohio River Sand Co., 467 S.W.2d 758, 1971 Ky. LEXIS 398 ( Ky. 1971 ).

11.Authority of Courts.

The circuit courts of this state are not empowered, by virtue of statutory authorization for employees to associate freely for purposes of collective bargaining, to perform the functions of the National Labor Relations Board, including the granting of injunctive relief, in cases where the NLRB either lacks or declines to exercise jurisdiction. Pari-Mutuel Clerks' Union v. Kentucky Jockey Club, 551 S.W.2d 801, 1977 Ky. LEXIS 457 ( Ky. 1977 ).

Lower court did not err in denying employees, who were successful in their action for wrongful termination for union activity, injunctive relief of reinstatement or to enjoin employer’s illegal anti-union activity as to grant such relief would impermissibly expand this section. Simpson County Steeplechase Ass'n v. Roberts, 898 S.W.2d 523, 1995 Ky. App. LEXIS 74 (Ky. Ct. App. 1995).

12.Federal Preemption.

Employer was entitled to dismissal of a former employee’s claim of retaliatory discharge in violation of KRS 336.130 on the ground that the state law claim was preempted by the National Labor Relations Act, 29 USCS § 141 et seq.; the National Labor Relations Board had jurisdiction over the claim since the employee’s claim of retaliation for his role in organizing a meeting with fellow employees concerned conduct that was arguably protected under 29 USCS § 157 and arguably prohibited by 29 USCS § 158 notwithstanding the fact that the activity was not union-related. Smith v. Excel Maint. Servs., 617 F. Supp. 2d 520, 2008 U.S. Dist. LEXIS 40043 (W.D. Ky. 2008 ).

Because an employee’s allegation of wrongful discharge based upon participation in union-organizing activities was clearly impermissible discrimination under 29 USCS § 158, based upon the exercise of lawful rights given under 29 USCS § 157, the employee’s KRS 336.130 wrongful termination action was preempted. Methodist Hosp. of Ky. Inc. v. Gilliam, 283 S.W.3d 654, 2009 Ky. LEXIS 4 ( Ky. 2009 ).

13.Membership.

2017 Ky. Acts 1 does not violate the equal protection provisions of the Kentucky Constitution; the legislature clearly established a rational basis for the Act, to promote economic development, to promote job growth, and to remove Kentucky’s economic disadvantages in competing with neighboring states. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

Labor unions are not akin to the Kentucky Bar Association (KBA) for purposes of 2017 Ky. Acts 1; the KBA is not a voluntary association, except in the sense that no one is required to practice law in Kentucky. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

Rational basis review is appropriate for evaluating 2017 Ky. Acts 1 since the Act is expressly permitted by the Taft-Hartley Act. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

Cited in:

Hill v. United Public Workers Union, 314 Ky. 791 , 236 S.W.2d 887, 1950 Ky. LEXIS 1101 ( Ky. 1950 ); National Electric Service Corp. v. United Mine Workers, 279 S.W.2d 808, 1955 Ky. LEXIS 549 ( Ky. 1955 ); Food Basket, Inc. v. Amalgamated Meat Cutters & Butcher Workmen, etc., 293 S.W.2d 861, 1956 Ky. LEXIS 97 ( Ky. 1956 ); Firestone Textile Co. Div., Firestone Tire & Rubber Co. v. Meadows, 666 S.W.2d 730, 1983 Ky. LEXIS 305 ( Ky. 1983 ); Nelson Steel Corp. v. McDaniel, 898 S.W.2d 66, 1995 Ky. LEXIS 48 ( Ky. 1995 ).

Opinions of Attorney General.

Schoolteachers may organize themselves into a labor union and bargain in a collective manner with the Board of Education. However, the Board may listen or not, as it chooses, and cannot, by negotiations with a teachers’ union, tie its own hands, since to do so would rob it of its legal prerogative to have the last word concerning all matters pertaining to schools. OAG 65-84 .

This section is inapplicable to public employees and therefore, the Kentucky State Fair Board may not allow a union to represent state employees who perform certain services for the Kentucky Fair and Exposition Center. OAG 72-279 .

Research References and Practice Aids

Kentucky Law Journal.

Walden, New Light on Picketing — The Blue Boar Case, 42 Ky. L.J. 248 (1954).

Bornstein, Organizational Picketing in American Law, 46 Ky. L.J. 25 (1957).

Kentucky Law Survey, Hanley and Schwemm, Education: Teacher’s Rights, 67 Ky. L.J. 721 (1978-1979).

Northern Kentucky Law Review.

Zielke, Public Sector Labor Law in Kentucky, 6 N. Ky. L. Rev. 327 (1979).

Notes, Nelson Steel Corp. v. McDaniel: Discrimination Against Employees Who Have Filed Workers’ Compensation Claims Against Previous Employers, 23 N. Ky. L. Rev. 435 (1996).

ALR

Right of public employees to form or join a labor organization affiliated with a federation of trade unions or which includes private employees. 40 A.L.R.3d 728.

336.132. Labor agreement in violation of KRS 336.130 is unlawful and void — Exceptions.

Any agreement, understanding, or practice, written or oral, implied or expressed, between any labor organization and employer which violates an employee’s rights as set forth in KRS 336.130(3) shall be unlawful and void, except that KRS 336.130(3) shall not apply to:

  1. Employers and employees covered by the Federal Railway Labor Act;
  2. Federal employers and employees;
  3. Employers and employees on exclusive federal enclaves;
  4. Employers and employees where it would conflict or be preempted by federal law; or
  5. Any agreement between employers and employees or labor organization entered into before January 9, 2017, but the provisions of KRS 336.130(3) shall apply to any new contract or an extension or renewal of any existing agreement entered into on or after January 9, 2017.

HISTORY: 2017 ch. 1, § 4, effective January 9, 2017.

336.134. Public employee must give prior written consent for deduction of membership dues by public employer or public employee labor organization.

A public employer or a labor organization representing public employees shall not deduct membership dues of an employee organization, association, or union from the wages, earnings, or compensation of a public employee without the express written consent of the public employee. This consent shall be made prior to any deductions being made and may be revoked by the public employee at any time by written notice to the employer.

HISTORY: 2017 ch. 1, § 5, effective January 9, 2017.

336.135. Employee must give prior written consent for enrollment as member of labor organization and deduction of membership dues — Recordkeeping — Exception.

  1. As used in this section, “employee” means any person employed by or suffered or permitted to work for a public or private employer, except “employee” shall not mean any person covered by the Federal Railway Labor Act and the National Labor Relations Act.
  2. An employee shall not be enrolled as a member of a labor organization unless the employee has affirmatively requested membership in writing.
  3. A sum shall not be withheld from the earnings of any employee for the purpose of paying union dues or other fees paid by members of a labor organization or employees who are non-members except upon the written or electronic authorization of the employee member or employee non-member.
  4. The requirements in this section shall not be waived by any member or non-member of a labor organization, nor required to be waived as a condition of obtaining or maintaining employment.
  5. Signing or refraining from signing the authorization set forth in subsections (2) and (3) of this section shall not be made a condition of obtaining or maintaining employment.
    1. A labor organization shall maintain financial records substantially similar to and no less comprehensive than the records required to be maintained under 29 U.S.C. sec 431(b). (6) (a) A labor organization shall maintain financial records substantially similar to and no less comprehensive than the records required to be maintained under 29 U.S.C. sec 431(b).
    2. These records shall be kept in a searchable electronic format and provided to every employee it represents.
    3. The records and the data or summary by which the records can be verified, explained, or clarified shall be kept for a period of not less than five (5) years.
  6. This section shall not apply to any agreement between employers and employees or labor organizations entered into before January 9, 2017, but any such agreement entered into, opted in, renewed, or extended on or after January 9, 2017 and which violates this section shall be unlawful and void.
  7. This section shall be known as the “Paycheck Protection Act.”

HISTORY: 2017 ch. 6, § 1, effective January 9, 2017.

336.137. Marketplace contractor not an employee of a marketplace platform — Conditions — Exclusion from application of section.

  1. As used in this section:
    1. “Marketplace contractor” means a person or entity that enters into an agreement with a marketplace platform to use its digital network or mobile application to receive connections to third-party individuals or entities seeking services; and
    2. “Marketplace platform” means a person or entity that:
      1. Offers a digital network or mobile application that connects marketplace contractors to third-party individuals or entities seeking the type of services offered by a marketplace contractor;
      2. Accepts service requests from the public exclusively through its digital network or mobile application and does not accept service requests by telephone, facsimile, or in person at a physical retail location; and
      3. Does not perform the services offered by the marketplace contractor at or from a physical business location that is operated by the platform in the state.
  2. A marketplace contractor shall not be deemed to be an employee of a marketplace platform for any purpose under state and local laws, regulations, and ordinances, including but not limited to KRS Chapters 336, 341, and 342, so long as:
    1. The marketplace platform and the marketplace contractor agree in writing that the marketplace contractor is an independent contractor with respect to the marketplace platform;
    2. The marketplace platform does not unilaterally prescribe specific hours during which the marketplace contractor must be available to accept service requests from third-party individuals or entities submitted solely through the online-enabled application, software, Web site, or system of the marketplace platform;
    3. The marketplace platform does not prohibit the marketplace contractor from using any online-enabled application, software, Web site, or system offered by another marketplace platform;
    4. The marketplace platform does not restrict the marketplace contractor from engaging in another occupation or business;
    5. The marketplace contractor bears all or substantially all of the expenses incurred by the marketplace contractor in performing the services; and
    6. The marketplace platform does not supply instrumentalities or tools for the person doing the work;
  3. For services performed by a marketplace contractor prior to July 14, 2018, the marketplace contractor shall be treated as an independent contractor of the marketplace platform and not an employee of the marketplace platform if the requirements set forth in subsection (2) of this section were met at the time at which the services were performed.
  4. This section shall not apply to:
    1. Service performed in the employment of a state or any political subdivision of a state, or in the employ of an Indian tribe, or any instrumentality of a state, any political subdivision of a state, or any Indian tribe that is wholly owned by one (1) or more states or political subdivisions of Indian tribes, provided such service is excluded from employment as defined in 26 U.S.C. secs. 3301 to 3311;
    2. Service performed in the employment of a religious, charitable, educational, or other organization that is excluded from employment as defined in 26 U.S.C. secs. 3301 to 3311, solely by reason of 26 U.S.C. sec. 3306(c)(8) ; or
    3. Services consisting of transporting freight, sealed envelopes, boxes or parcels, or other sealed containers for compensation.

HISTORY: 2018 ch. 18, § 1, effective July 14, 2018.

336.140. Secretary to investigate and mediate labor disputes. [Repealed]

History. 1599c-8; 1998, ch. 579, § 8, effective July 15, 1998; 2010, ch. 24, § 1712, effective July 15, 2010; repealed by 2017 ch. 134, § 13, effective June 29, 2017.

Compiler’s Notes.

This section (Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 1599c-8v; 1998, ch. 579, § 8, effective July 15, 1998; 2010, ch. 24, § 1712, effective July 15, 2010) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

336.150. Conciliation of labor disputes — Joint wage agreement — Federal jurisdiction to supersede. [Repealed.]

Compiler’s Notes.

This section (1599c-29) was repealed by Acts 1974, ch. 30, § 3.

336.151. Conciliation and mediation of labor disputes. [Repealed]

History. Enact. Acts 1974, ch. 30, § 1; 1998, ch. 579, § 9, effective July 15, 1998; 2010, ch. 24, § 1713, effective July 15, 2010; repealed by 2017 ch. 134, § 13, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 30, § 1; 1998, ch. 579, § 9, effective July 15, 1998; 2010, ch. 24, § 1713, effective July 15, 2010) was repealed by Acts 2017, ch. 134, § 13, effective June 29, 2017.

336.152. Minimizing labor disputes. [Repealed]

History. Enact. Acts 1974, ch. 30, § 2; 1998, ch. 579, § 10, effective July 15, 1998; 2010, ch. 24, § 1714, effective July 15, 2010; repealed by 2017 ch. 134, § 13, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 30, § 2; 1998, ch. 579, § 10, effective July 15, 1998; 2010, ch. 24, § 1714, effective July 15, 2010) was repealed by Acts 2017, ch. 134, § 13, effective June 29, 2017.

336.153. Disclosure by mediators prohibited. [Repealed]

History. Enact. Acts 1986, ch. 192, § 1, effective July 15, 1986; repealed by 2017 ch. 134, § 13, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 192, § 1, effective July 15, 1986) was repealed by Acts 2017, ch. 134, § 13, effective June 29, 2017.

336.156. Third parties to labor/management negotiations or arbitration — Duties — Regulations by secretary. [Repealed]

History. Enact. Acts 1986, ch. 254, § 1, effective July 15, 1986; 2010, ch. 24, § 1715, effective July 15, 2010; repealed by 2017 ch. 134, § 13, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 254, § 1, effective July 15, 1986; 2010, ch. 24, § 1715, effective July 15, 2010) was repealed by Acts 2017, ch. 134, § 13, effective June 29, 2017.

336.160. Reports to General Assembly.

The secretary shall present biennial reports to the General Assembly giving statistical data relating to employment and unemployment in the state such as the hours and wages of employees, cost of living, the amount of labor required, the estimated number and classification of persons unemployed, the estimated number of persons depending on daily labor for support, the probable chances of increased employment, the number of unemployed depending on public relief, facts relating to industrial accidents, the workers’ compensation for industrial injuries, labor disputes, and facts relating to acts of the cabinet in the enforcement of the law and its work generally.

History. 1599c-11; 1998, ch. 579, § 11, effective July 15, 1998; 2010, ch. 24, § 1716, effective July 15, 2010.

Research References and Practice Aids

Cross-References.

Reports to Governor and General Assembly, KRS 12.110 .

Labor-Management Relations

336.162. Kentucky Labor-Management Advisory Council. [Repealed]

History. Enact. Acts 1978, ch. 148, § 1, effective June 17, 1978; 1980, ch. 358, § 1, effective July 15, 1980; 1982, ch. 396, § 53, effective July 15, 1982; 1984, ch. 414, § 10, effective July 13, 1984; 2010, ch. 24, § 1717, effective July 15, 2010; repealed by 2017 ch. 80, § 58, effective June 29, 2017; repealed by 2017 ch. 134, § 13, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 148, § 1, effective June 17, 1978; 1980, ch. 358, § 1, effective July 15, 1980; 1982, ch. 396, § 53, effective July 15, 1982; 1984, ch. 414, § 10, effective July 13, 1984; 2010, ch. 24, § 1717, effective July 15, 2010) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

336.164. Duties of council — Staff support. [Repealed]

History. Enact. Acts 1978, ch. 148, § 2, effective June 17, 1978; 1982, ch. 396, § 54, effective July 15, 1982; 1984, ch. 414, § 11, effective July 13, 1984; 1998, ch. 579, § 5, effective July 15, 1998; 2005, ch. 123, § 36, effective June 20, 2005; 2010, ch. 24, § 1718, effective July 15, 2010; repealed by 2017 ch. 80, § 58, effective June 29, 2017; repealed by 2017 ch. 134, § 13, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 148, § 2, effective June 17, 1978; 1982, ch. 396, § 54, effective July 15, 1982; 1984, ch. 414, § 11, effective July 13, 1984; 1998, ch. 579, § 5, effective July 15, 1998; 2005, ch. 123, § 36, effective June 20, 2005; 2010, ch. 24, § 1718, effective July 15, 2010) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

Legislative Research Commission Notes.

KRS 446.260 , the repeal of this statute in and prevails over its amendment in 2017 Ky. Acts ch. 82.

336.165. Grants-in-aid to labor-management relations organizations. [Repealed]

History. Enact. Acts 1990, ch. 41, § 1, effective July 13, 1990; 1998, ch. 579, § 6, effective July 15, 1998; 2010, ch. 24, § 1719, effective July 15, 2010; 2017 ch. 82, § 4, effective June 29, 2017; repealed by 2017 ch. 134, § 13, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 41, § 1, effective July 13, 1990; 1998, ch. 579, § 6, effective July 15, 1998; 2010, ch. 24, § 1719, effective July 15, 2010) was repealed by Acts 2017, ch. 134, § 13, effective June 29, 2017.

Legislative Research Commission Notes.

(6/29/2017). Under KRS 446.260 , the repeal of this statute in 2017 Ky. Acts ch. 134 prevails over its amendment in 2017 Ky. Acts ch. 82.

Arbitration of Labor Disputes

336.1661. Definitions. [Repealed]

History. Enact. Acts 1986, ch. 124, § 1, effective July 15, 1986; 2010, ch. 24, § 1720, effective July 15, 2010; repealed by 2017 ch. 134, § 13, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 124, § 1, effective July 15, 1986; 2010, ch. 24, § 1720, effective July 15, 2010) was repealed by Acts 2017, ch. 134, § 13, effective June 29, 2017.

336.1662. Duties of secretary. [Repealed]

History. Enact. Acts 1986, ch. 124, § 2, effective July 15, 1986; 2010, ch. 24, § 1721, effective July 15, 2010; repealed by 2017 ch. 134, § 13, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 124, § 2, effective July 15, 1986; 2010, ch. 24, § 1721, effective July 15, 2010) was repealed by Acts 2017, ch. 134, § 13, effective June 29, 2017.

336.1663. Arbitrators — Relationship to cabinet and parties. [Repealed]

History. Enact. Acts 1986, ch. 124, § 3, effective July 15, 1986; 2010, ch. 24, § 1722, effective July 15, 2010; repealed by 2017 ch. 134, § 13, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 124, § 3, effective July 15, 1986; 2010, ch. 24, § 1722, effective July 15, 2010) was repealed by Acts 2017, ch. 134, § 13, effective June 29, 2017.

336.1664. Rules and regulations. [Repealed]

History. Enact. Acts 1986, ch. 124, § 4, effective July 15, 1986; 2010, ch. 24, § 1723, effective July 15, 2010; repealed by 2017 ch. 134, § 13, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 124, § 4, effective July 15, 1986; 2010, ch. 24, § 1723, effective July 15, 2010) was repealed by Acts 2017, ch. 134, § 13, effective June 29, 2017.

Labor Organizations

336.170. Certain national and international labor organizations to have local units in Kentucky.

  1. It shall be unlawful for any national or international labor organization having one hundred (100) or more members in good standing who reside or work in Kentucky not to have at all times one or more duly chartered and established local or subsidiary organizations in this state.
  2. Any national or international labor organization which violates subsection (1) of this section shall, for each offense, be fined not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000).

History. Enact. Acts 1952, ch. 164, §§ 1, 2.

NOTES TO DECISIONS

1.Purpose.

The obvious purpose of this section was to require that all members of the union have the opportunity for membership in a Kentucky local or subsidiary organization that would have jurisdiction to represent them in Kentucky. Hamilton v. International Union of Operating Engineers, 262 S.W.2d 695, 1953 Ky. LEXIS 1126 ( Ky. 1953 ).

2.Organization.

The word “organization” contemplates an organizational unit with a governmental structure of its own, something that is capable of some degree of independent existence as an entity. Hamilton v. International Union of Operating Engineers, 262 S.W.2d 695, 1953 Ky. LEXIS 1126 ( Ky. 1953 ).

3.— Type of Organization.

This section means there must be a local organization available for all of the members of the union in Kentucky. Hamilton v. International Union of Operating Engineers, 262 S.W.2d 695, 1953 Ky. LEXIS 1126 ( Ky. 1953 ).

To meet the requirements of this section, the union might establish one (1) local with statewide jurisdiction, or several locals which, collectively, would have statewide jurisdiction. Hamilton v. International Union of Operating Engineers, 262 S.W.2d 695, 1953 Ky. LEXIS 1126 ( Ky. 1953 ).

4.Elements of Violation.

It is clear that if a national or international union carries on activities in this state, through its locals and membership, without having the kind of local organizations required by this section, it has committed a violation of this section. Hamilton v. International Union of Operating Engineers, 262 S.W.2d 695, 1953 Ky. LEXIS 1126 ( Ky. 1953 ).

336.180. “Labor organization” defined.

As used in this chapter, unless the context requires otherwise:

  1. The term “labor organization” means any organization of any kind, or any agency or employee representation committee, association or union which exists for the purpose, in whole or in part, of dealing with employers concerning wages, rates of pay, hours of employment or conditions of work, or other forms of compensation;
  2. The term “employer” means all persons, firms, associations, corporations, public employers, public school employers, and public colleges, universities, institutions, and education agencies; and
  3. The term “public employee” means an employee of a “public agency” as that term is defined in KRS 61.870(1).

History. Enact. Acts 1962, ch. 303, § 1; 2017 ch. 1, § 2, effective January 9, 2017; 2017 ch. 6, § 2, effective January 9, 2017.

Legislative Research Commission Notes.

(1/9/2017). This statute was amended by 2017 Ky. Acts chs. 1 and 6, which do not appear to be in conflict and have been codified together.

336.190. Unlawful practice by carrier, shipper.

It shall be unlawful for any carrier or shipper of property, or any association of such carriers or shippers, to agree to pay or to pay, to or for the benefit of a labor organization, directly or indirectly, any charge by reason of the placing upon, delivery to, or movement by rail, or by a railroad car, of a motor vehicle, trailer or container which is also capable of being moved or propelled upon the highways.

History. Enact. Acts 1962, ch. 303, § 2.

336.200. Unlawful practice by labor organization.

It shall be unlawful for any labor organization to accept or receive or to agree to accept or receive from any carrier or shipper of property, or any association of such carriers or shippers, any payment described in KRS 336.190 .

History. Enact. Acts 1962, ch. 303, § 3.

336.210. Employees’ representatives to select plant physician or surgeon.

  1. If a plan or custom exists in any industry under which the employees contribute to the payment of any physician or surgeon for furnishing treatment, by deductions from their wages through the office of the employer, a meeting of such employees may be called by any ten (10) of them, as they consider best to bring to the notice of all employees affected that the meeting is to be held. Those at the meeting, by a majority determination, shall authorize two (2) of their number to represent all employees in that plant so affected, and when the management of the plant is notified by the employees of their action, it shall forthwith select two (2) persons to represent it.
  2. The persons selected shall meet and select a physician or surgeon for the plant. If no selection is made within three (3) days, all questions before them shall be referred to the secretary, who shall act as umpire. His or her decision shall be final. No physician or surgeon shall be employed and paid by deductions from the wages of employees except as provided in this section.
  3. Any physician or surgeon selected under this section shall be employed for a definite term, not to exceed four (4) years, and may be removed at any time for gross inefficiency or misconduct in the same manner in which he or she was selected.

History. Enact. Acts 1972, ch. 251, § 25; 2010, ch. 24, § 1724, effective July 15, 2010.

336.220. Cost of medical examination required by employer.

  1. It shall be unlawful for any employer to require any employee or applicant for employment to pay the cost of a medical examination or the cost of furnishing any records required by the employer as a condition of employment.
  2. As used in this section:
    1. The term “employer” means and includes an individual, a partnership, an association, a corporation, a legal representative, trustee, receiver, trustee in bankruptcy, and any common carrier by rail, motor, water, air or express company doing business in or operating within the state.
    2. The term “employee” means and includes every person who may be permitted, required or directed by any employer, as defined in paragraph (a) of this subsection, in consideration of direct or indirect gain or profit, to engage in any employment.

History. Enact. Acts 1972, ch. 251, § 26.

Opinions of Attorney General.

This section does not apply to public employers and under KRS 161.145 the Board of Education is not required to pay the cost of physical examinations of bus drivers who work for the board. OAG 91-1 .

Elevator Inspections

336.510. Definitions. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.400 .

336.520. Inspectors — Certificates of competency — Application — Examination — Issuance — Reexamination. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.410 .

336.530. State elevator inspection program — Qualifications of director — Appointment of general inspectors. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.420 .

336.540. Employment of special inspectors. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.430 .

336.550. Suspension or revocation of certificates. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.440 .

336.560. Lost or destroyed certificates. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.450 .

336.570. Insurance company may inspect. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 239, § 7) was repealed by Acts 1978, ch. 123, § 7.

336.580. Inspection by general inspector. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 239, § 8; 1976, ch. 232, § 1) was repealed by Acts 1978, ch. 123, § 7.

336.590. Registration of elevators. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.460 .

336.600. Annual inspection. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.470 .

336.610. Report of inspection —Hearing on construction plans and specifications—Findings and orders of department. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.480 .

336.620. Rules and regulations. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.490 .

336.630. Safety equipment. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.500 .

336.640. Certificates of operation—Renewal. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.510 .

336.650. Permits for erection or repairs. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.520 .

336.660. Fees. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 239, § 16) was repealed by Acts 1976, ch. 232, § 10.

336.670. Prohibition. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.530 .

336.680. Enforcement — Notice of defective machinery. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.540 .

Rights of Employees

336.700. Prohibition against requiring waiver of statutory rights as a condition of employment — Exceptions — Arbitration agreements.

  1. As used in this section, “employer” means any person, either individual, corporation, partnership, agency, or firm, that employs an employee and includes any person, either individual, corporation, partnership, agency, or firm, acting directly or indirectly in the interest of an employer in relation to an employee; and “employee” means any person employed by or suffered or permitted to work for an employer.
  2. Notwithstanding any provision of the Kentucky Revised Statutes to the contrary and except as provided in subsection (3) of this section, no employer shall require as a condition or precondition of employment that any employee or person seeking employment waive or otherwise diminish any existing or future claim, right, or benefit to which the employee or person seeking employment would otherwise be entitled under any provision of the Kentucky Revised Statutes or any federal law.
  3. Notwithstanding subsection (2) of this section:
    1. Any employer may require an employee or person seeking employment to execute an agreement for arbitration, mediation, or other form of alternative dispute resolution as a condition or precondition of employment;
    2. Any employer may require a former employee to execute an agreement to waive an existing claim as a condition or precondition for the rehiring of the former employee as part of a settlement of pending litigation or other legal or administrative proceeding;
    3. Any employer may require an employee or person seeking employment to execute an agreement to reasonably reduce the period of limitations for filing a claim against the employer as a condition or precondition of employment, provided that the agreement does not apply to causes of action that arise under a state or federal law where an agreement to modify the limitations period is preempted or prohibited, and provided that such an agreement does not reduce the period of limitations by more than fifty percent (50%) of the time that is provided under the law that is applicable to the claim; and
    4. Any employer may require, as a condition or precondition of employment, an employee or person seeking employment to agree for the employer to obtain a background check or similar type of personal report on the employee or person seeking employment in conformance with a state or federal law that requires the consent of the individual prior to an employer’s receipt or use of such a report.
  4. An arbitration agreement executed by an employer and an employee or a candidate for employment under subsection (3)(a) of this section shall be subject to general contract defenses as may be applicable in a particular controversy, including fraud, duress, and unconscionability.
  5. In accordance with the Federal Arbitration Act, arbitration under subsection (3)(a) of this section shall safeguard the effective vindication of legal rights, including:
    1. Providing a reasonable location for the arbitration;
    2. Mutuality of obligation sufficient to support the agreement to arbitrate;
    3. Ensuring procedural fairness for the parties to access arbitration, including a fair process for selecting an impartial arbitrator and the equitable, lawful allocation of arbitration costs between the parties;
    4. Ensuring that the parties to the agreement shall have at least one (1) channel for the pursuit of a legal claim, either by requiring the claim to be arbitrated individually pursuant to the agreement or otherwise; and
    5. Empowering the arbitrator to award all types of relief for a particular type of claim that would otherwise be available for a party through judicial enforcement, including punitive damages as provided by law.
  6. An arbitrator selected to arbitrate an agreement entered into pursuant to this section shall disqualify himself or herself if he or she has any of the conflicts enumerated under KRS 26A.015(2).
  7. If an arbitration agreement fails to specify the manner of procedure to govern the arbitration process, such as, for example, by failing to designate arbitral protocols promulgated by the American Arbitration Association or similar organization, then the arbitrator shall use the Kentucky Rules of Civil Procedure in the conduct of the arbitration.
  8. This section shall apply prospectively and retroactively. Any provision of an agreement executed prior to June 27, 2019, that violates the requirements of subsection (3)(c) of this section shall be stricken from the agreement and shall not operate to invalidate the entire agreement.
  9. The provisions of this section shall not apply to collective bargaining agreements entered into between employers and the respective representatives of member employees.

History. Enact. Acts 1994, ch. 304, § 1, effective July 15, 1994; 1994, ch. 355, § 1, effective July 15, 1994; 2019 ch. 75, § 1, effective June 27, 2019.

NOTES TO DECISIONS

1.Chemical Screening.

Because an employee failed to show that the employer violated KRS 336.700(2) by requiring the employee to sign a chemical screening consent and release form, the trial court properly directed a verdict in favor of the employer on the issue of wrongful termination. McCown v. Gray Ky. TV, Inc., 295 S.W.3d 116, 2008 Ky. App. LEXIS 342 (Ky. Ct. App. 2008).

Case was remanded because plaintiffs’ state law claims were not preempted by § 301 of the Labor Management Relations Act of 1947 because their claims were based solely on rights created by state law under KRS 336.700(2), 337 and did not require substantial interpretation of the collective bargaining agreement. Defendants’ removal was also procedurally defective because the removal was untimely under 28 U.S.C.S. § 1446(b), and defendants waived the right to removal by affirmatively seeking relief in state court. Hughes v. UPS Supply Chain Solutions, Inc., 815 F. Supp. 2d 993, 2011 U.S. Dist. LEXIS 112770 (W.D. Ky. 2011 ).

2.Arbitration.

Trial court properly denied an employer's motion to compel arbitration because the arbitration agreement executed by the employer, a political subdivision, and an employee as a condition of her employment was unenforceable; the employer had no authority to enter into the arbitration agreement. N. Ky. Area Dev. Dist. v. Snyder, 2017 Ky. App. LEXIS 174 (Ky. Ct. App. May 12, 2017), aff'd on other grounds, 570 S.W.3d 531, 2018 Ky. LEXIS 363 ( Ky. 2018 ) (Ky. Ct. App. May 12, 2017), aff’d on other grounds, 570 S.W.3d 531, 2018 Ky. LEXIS 363 ( Ky. 2018 ).

Commonwealth has expressly prohibited political subdivisions from requiring arbitration as a condition of employment, specifically including those submitting future actions for violations of state and federal statutory rights to arbitration; while in the private employment context federal law prevails, that federal law does not pre-empt the authority of the Commonwealth to deny the authority of its political subdivisions to enter into arbitration agreements in the employment context. N. Ky. Area Dev. Dist. v. Snyder, 2017 Ky. App. LEXIS 174 (Ky. Ct. App. May 12, 2017), aff'd on other grounds, 570 S.W.3d 531, 2018 Ky. LEXIS 363 ( Ky. 2018 ) (Ky. Ct. App. May 12, 2017), aff’d on other grounds, 570 S.W.3d 531, 2018 Ky. LEXIS 363 ( Ky. 2018 ).

Although pre-empted by federal laws, the statute declares an express legislative intent to deprive state agencies and political subdivisions the power to enter into arbitration agreements as a condition of employment; that express denial of power is not pre-empted by any federal law, including the Federal Arbitration Act. N. Ky. Area Dev. Dist. v. Snyder, 2017 Ky. App. LEXIS 174 (Ky. Ct. App. May 12, 2017), aff'd on other grounds, 570 S.W.3d 531, 2018 Ky. LEXIS 363 ( Ky. 2018 ) (Ky. Ct. App. May 12, 2017), aff’d on other grounds, 570 S.W.3d 531, 2018 Ky. LEXIS 363 ( Ky. 2018 ).

Court of Appeals properly affirmed a trial court’s order denying a state employer’s motion to compel enforcement of an arbitration agreement because, while the Court held that the FAA preempted Kentucky’s legislative enactment to preserve employee rights, the FAA did not apply to preempt Kentucky law inasmuch as no such discrimination occurred where the statute at issue did nothing to discriminate against arbitration clauses; it only prevented an employer from terminating or refusing to hire an individual who refused to agree to such a clause, the employer never had the power to force the employee to agree to arbitrate disputes arising between them as a condition of her employment, and the resulting arbitration agreement was void. N. Ky. Area Dev. Dist. v. Snyder, 570 S.W.3d 531, 2018 Ky. LEXIS 363 ( Ky. 2018 ).

3.Limitations Period.

Under the plain language of the statute, the provision in a decedent’s employment application was not void as against public policy; in enacting the amendment to the statute, the General Assembly has clearly stated that the public policy of the Commonwealth permits an employment contract requiring an employee to accept a reduced limitation period for a cause of action arising out of the employment. Croghan v. Norton Healthcare, Inc., 613 S.W.3d 37, 2020 Ky. App. LEXIS 18 (Ky. Ct. App. 2020).

By its express terms, the amended version of the statute applies to all contracts entered before or after the statute’s effective date of June 27, 2019; since the statutory limitation period for Kentucky Civil Rights Act claims is five years, the statute prohibits any shortening of the limitation period for such claims to less than two and a half years, and any contrary provision is not enforceable. Croghan v. Norton Healthcare, Inc., 613 S.W.3d 37, 2020 Ky. App. LEXIS 18 (Ky. Ct. App. 2020).

Amendment to the statute was applicable because retroactive application of the statute would not impair an employer’s vested rights; by amending the statute, the legislature has simply specified the scope of the reasonableness inquiry. Croghan v. Norton Healthcare, Inc., 613 S.W.3d 37, 2020 Ky. App. LEXIS 18 (Ky. Ct. App. 2020).

Trial court erred in granting summary judgment for an employer because the six-month period under subsection (3)(c) for bringing a claim arising out of a decedent’s employment was not enforceable with respect to an administrator’s Kentucky Civil Rights Act (KCRA) claims; the amendment to the statute was applicable, and the administrator’s KCRA claims were not barred by the six-month limitation period provided in the decedent’s employment contract. Croghan v. Norton Healthcare, Inc., 613 S.W.3d 37, 2020 Ky. App. LEXIS 18 (Ky. Ct. App. 2020).

Trial court erred in granting summary judgment for an employer because six months was not a reasonable period to bring a Kentucky Civil Rights Act (KCRA) claim; the six-month period for filing a claim with the Kentucky Commission on Human Rights was not comparable to the six-month limitation period provided under a decedent’s contract. Croghan v. Norton Healthcare, Inc., 613 S.W.3d 37, 2020 Ky. App. LEXIS 18 (Ky. Ct. App. 2020).

Penalties

336.985. Enforcement of civil penalties imposed in KRS Chapters 336, 337, and 339.

  1. The secretary, or any person authorized to act in his or her behalf, shall initiate enforcement of civil penalties imposed in KRS Chapters 336, 337, and 339.
  2. Any civil penalty imposed pursuant to KRS Chapter 336, 337, or 339 may be compromised by the secretary or the secretary’s designated representative. In determining the amount of the penalty or the amount agreed upon in compromise, the secretary, or the secretary’s designated representative, shall consider the appropriateness of the penalty to the size of the business of the person charged, the gravity of the violation, the number of times the person charged has been cited, and the good faith of the person charged in attempting to achieve compliance, after notification of the violation.
  3. If a civil penalty is imposed pursuant to this section, a citation shall be issued which describes the violation which has occurred and states the penalty for the violation. If, within fifteen (15) working days from the receipt of the citation, the affected party fails to pay the penalty imposed, the secretary, or any person authorized to act in his or her behalf, shall initiate a civil action to collect the penalty. The civil action shall be taken in the court which has jurisdiction over the location in which the violation occurred.

History. Enact. Acts 1990, ch. 42, § 1, effective July 13, 1990; 2010, ch. 24, § 1725, effective July 15, 2010.

336.990. Penalties.

  1. Upon proof that any person employed by the Labor Cabinet as a labor inspector has taken any part in any strike, lockout or similar labor dispute, the person shall forfeit his or her office.
  2. The following civil penalties shall be imposed, in accordance with the provisions in KRS 336.985 , for violations of the provisions of this chapter:
    1. Any person who violates KRS 336.110 or 336.130 shall for each offense be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000);
    2. Any corporation, association, organization, or person that violates KRS 336.190 and 336.200 shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) for each offense. Each act of violation, and each day during which such an agreement remains in effect, shall constitute a separate offense;
    3. Any employer who violates the provisions of KRS 336.220 shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) for each violation; and
    4. Any labor organization who violates KRS 336.135 shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) for each offense.
  3. Any labor organization, employer, or other person who directly or indirectly violates 336.130(3) shall be guilty of a Class A misdemeanor.
  4. Any person aggrieved as a result of any violation or threatened violation of 336.130(3) may seek abatement of the violation or threatened violation by petitioning a court of competent jurisdiction for injunctive relief and shall be entitled to costs and reasonable attorney fees if he or she prevails in the action.
  5. Any person injured as a result of any violation or threatened violation of 336.130(3) may recover all damages resulting from the violation or threatened violation and shall be entitled to costs and reasonable attorney fees if he or she prevails in the action.

History. 33a-8, 33a-13: amend. Acts 1962, ch. 303, § 4; 1972, ch. 251, § 27; 1974, ch. 239, § 19; 1990, ch. 42, § 2, effective July 13, 1990; 2010, ch. 24, § 1726, effective July 15, 2010; 2017 ch. 1, § 3, effective January 9, 2017; 2017 ch. 6, § 3, effective January 9, 2017.

Legislative Research Commission Notes.

(1/9/2017). This statute was amended by 2017 Ky. Acts chs. 1 and 6, which do not appear to be in conflict and have been codified together.

CHAPTER 337 Wages and Hours

337.010. Definitions for chapter and specific ranges in chapter.

  1. As used in this chapter, unless the context requires otherwise:
    1. “Commissioner” means the commissioner of the Department of Workplace Standards under the direction and supervision of the secretary of the Labor Cabinet;
    2. “Department” means the Department of Workplace Standards in the Labor Cabinet;
      1. “Wages” includes any compensation due to an employee by reason of his or her employment, including salaries, commissions, vested vacation pay, overtime pay, severance or dismissal pay, earned bonuses, and any other similar advantages agreed upon by the employer and the employee or provided to employees as an established policy. The wages shall be payable in legal tender of the United States, checks on banks, direct deposits, or payroll card accounts convertible into cash on demand at full face value, subject to the allowances made in this chapter. However, an employee may not be charged an activation fee and the payroll card account shall provide the employee with the ability, without charge, to make at least one (1) withdrawal per pay period for any amount up to and including the full account balance. (c) 1. “Wages” includes any compensation due to an employee by reason of his or her employment, including salaries, commissions, vested vacation pay, overtime pay, severance or dismissal pay, earned bonuses, and any other similar advantages agreed upon by the employer and the employee or provided to employees as an established policy. The wages shall be payable in legal tender of the United States, checks on banks, direct deposits, or payroll card accounts convertible into cash on demand at full face value, subject to the allowances made in this chapter. However, an employee may not be charged an activation fee and the payroll card account shall provide the employee with the ability, without charge, to make at least one (1) withdrawal per pay period for any amount up to and including the full account balance.
      2. For the purposes of calculating hourly wage rates for scheduled overtime for professional firefighters, as defined in KRS 95A.210(8), “wages” shall not include the distribution to qualified professional firefighters by local governments of supplements received from the Firefighters Foundation Program Fund. For the purposes of calculating hourly wage rates for unscheduled overtime for professional firefighters, as defined in KRS 95A.210(9), “wages” shall include the distribution to qualified professional firefighters by local governments of supplements received from the Firefighters Foundation Program Fund;
    3. “Employer” is any person, either individual, corporation, partnership, agency, or firm who employs an employee and includes any person, either individual, corporation, partnership, agency, or firm acting directly or indirectly in the interest of an employer in relation to an employee; and
    4. “Employee” is any person employed by or suffered or permitted to work for an employer, except that:
      1. Notwithstanding any voluntary agreement entered into between the United States Department of Labor and a franchisee, neither a franchisee nor a franchisee’s employee shall be deemed to be an employee of the franchisor for any purpose under this chapter; and
      2. Notwithstanding any voluntary agreement entered into between the United States Department of Labor and a franchisor, neither a franchisor nor a franchisor’s employee shall be deemed to be an employee of the franchisee for any purpose under this chapter.

        For purposes of this paragraph, “franchisee” and “franchisor” have the same meanings as in 16 C.F.R. sec. 436.1.

  2. As used in KRS 337.275 to 337.325 , 337.345 , and 337.385 to 337.405 , unless the context requires otherwise:
    1. “Employee” is any person employed by or suffered or permitted to work for an employer, but shall not include:
      1. Any individual employed in agriculture;
      2. Any individual employed in a bona fide executive, administrative, supervisory, or professional capacity, or in the capacity of outside salesman, or as an outside collector as the terms are defined by administrative regulations of the commissioner;
      3. Any individual employed by the United States;
      4. Any individual employed in domestic service in or about a private home. The provisions of this section shall include individuals employed in domestic service in or about the home of an employer where there is more than one (1) domestic servant regularly employed;
      5. Any individual classified and given a certificate by the commissioner showing a status of learner, apprentice, worker with a disability, sheltered workshop employee, and student under administrative procedures and administrative regulations prescribed and promulgated by the commissioner. This certificate shall authorize employment at the wages, less than the established fixed minimum fair wage rates, and for the period of time fixed by the commissioner and stated in the certificate issued to the person;
      6. Employees of retail stores, service industries, hotels, motels, and restaurant operations whose average annual gross volume of sales made for business done is less than ninety-five thousand dollars ($95,000) for the five (5) preceding years exclusive of excise taxes at the retail level or if the employee is the parent, spouse, child, or other member of his or her employer’s immediate family;
      7. Any individual employed as a baby-sitter in an employer’s home, or an individual employed as a companion by a sick, convalescing, or elderly person or by the person’s immediate family, to care for that sick, convalescing, or elderly person and whose principal duties do not include housekeeping;
      8. Any individual engaged in the delivery of newspapers to the consumer;
      9. Any individual subject to the provisions of KRS Chapters 7, 16, 27A, 30A, and 18A provided that the secretary of the Personnel Cabinet shall have the authority to prescribe by administrative regulation those emergency employees, or others, who shall receive overtime pay rates necessary for the efficient operation of government and the protection of affected employees;
      10. Any employee employed by an establishment which is an organized nonprofit camp, religious, or nonprofit educational conference center, if it does not operate for more than two hundred ten (210) days in any calendar year;
      11. Any employee whose function is to provide twenty-four (24) hour residential care on the employer’s premises in a parental role to children who are primarily dependent, neglected, and abused and who are in the care of private, nonprofit childcaring facilities licensed by the Cabinet for Health and Family Services under KRS 199.640 to 199.670 ;
      12. Any individual whose function is to provide twenty-four (24) hour residential care in his or her own home as a family caregiver, family home provider, or adult foster care provider and who is approved to provide family caregiver services to an adult with a disability through a contractual relationship with a community board for mental health or individuals with an intellectual disability established under KRS 210.370 to 210.460 or through a contractual relationship with a certified waiver provider as defined in 907 KAR 7:005 sec. 1(5), or is certified or licensed by the Cabinet for Health and Family Services to provide adult foster care;
      13. A direct seller as defined in Section 3508(b)(2) of the Internal Revenue Code of 1986; or
      14. Any individual whose function is to provide behavior support services, behavior programming services, case management services, community living support services, positive behavior support services, or respite services through a contractual relationship with a certified waiver provider, as defined in 907 KAR 7:005 sec. 1(5), pursuant to a 1915(c) home and community based services waiver program, as defined in 907 KAR 7:005 sec. 1(2).
    2. “Agriculture” means farming in all its branches, including cultivation and tillage of the soil; dairying; production, cultivation, growing, and harvesting of any agricultural or horticultural commodity; raising of livestock, bees, furbearing animals, or poultry; and any practice, including any forestry or lumbering operations, performed on a farm in conjunction with farming operations, including preparation and delivery of produce to storage, to market, or to carriers for transportation to market;
    3. “Gratuity” means voluntary monetary contribution received by an employee from a guest, patron, or customer for services rendered;
    4. “Tipped employee” means any employee engaged in an occupation in which he or she customarily and regularly receives more than thirty dollars ($30) per month in tips; and
    5. “U.S.C.” means the United States Code.

History. 1599c-4, 1599c-39, 2290c-1, 2290c-2, 4767a-1, 4767a-17: amend. Acts 1966, ch. 158, § 1; 1968, ch. 100, § 6; 1970, ch. 33, § 1; 1974, ch. 341, § 1; 1974, ch. 391, § 1; 1976, ch. 223, § 1; 1978, ch. 141, § 1, effective June 17, 1978; 1978, ch. 340, § 1, effective June 17, 1978; 1982, ch. 54, § 1, effective July 15, 1982; 1984, ch. 414, § 12, effective July 13, 1984; 1986, ch. 208, § 2, effective July 15, 1986; 1994, ch. 405, § 85, effective July 15, 1994; 1994, ch. 492, § 1, effective July 15, 1994; 1996, ch. 48, § 1, effective July 15, 1996; 1996, ch. 100, § 1, effective July 15, 1996; 1996, ch. 115, § 1, effective July 15, 1996; 1998, ch. 154, § 92, effective July 15, 1998; 1998, ch. 426, § 558, effective July 15, 1998; 1998, ch. 606, § 113, effective July 15, 1998; 2003, ch. 166, § 3, effective June 24, 2003; 2005, ch. 99, § 67, effective June 20, 2005; 2009, ch. 33, § 4, effective March 20, 2009; 2010, ch. 24, § 1727, effective July 15, 2010; 2012, ch. 146, § 113, effective July 12, 2012; 2017 ch. 3, § 5, effective January 9, 2017; 2020 ch. 2, § 1, effective July 15, 2020; 2021 ch. 153, § 1, effective June 29, 2021.

Legislative Research Commission Notes.

(3/25/19). 2019 Ky. Acts ch. 67, sec. 1, amended KRS 95A.210 to add new subsections and to change the internal numbering of others. KRS 337.010(1) cites KRS 95A.210 (5) and 95A.210(6). It is clear from the context that in this section KRS 95A.210(5) should have been changed to KRS 95A.210(8) to conform, and that KRS 95A.210(6) should have been changed to KRS 95A,210(9) to conform. These errors have been corrected in codification under the authority of KRS 7.136 .

NOTES TO DECISIONS

Analysis

1.Public Authority.

Where the hospital on which renovation work was to be done, was owned by the county, was built on property owned by the county, and was run on a day-to-day basis by a nonprofit corporation whose board of directors was appointed by and served at the pleasure of the county fiscal court, the nonprofit corporation was merely an alter ego of the county fiscal court and therefore constituted a public authority which was required to pay the prevailing wage rates on the renovation project. Hardin Memorial Hospital, Inc. v. Land, 645 S.W.2d 711, 1983 Ky. App. LEXIS 277 (Ky. Ct. App. 1983).

2.Public Works.

Although a municipal water company was wholly owned by the city, its managing board was appointed by the mayor and elected officials of the city, and it paid no income taxes or property taxes and it furnished water to the city free of charge, the water company was not a “city” within the meaning of subdivision (3)(e) of this section; therefore, the water company was not exempt from paying the prevailing wage rates. Louisville Water Co. v. Wells, 664 S.W.2d 525, 1984 Ky. App. LEXIS 464 (Ky. Ct. App. 1984).

Where the jail construction moneys were not derived from any Commonwealth appropriation or Commonwealth trust or agency account, revenue generated by the sale of bonds by the Local Correctional Facilities construction Authority to construct detention facilities were not Commonwealth funds, thus eliminating the application of the prevailing wage law to the construction contract pursuant to subdivision (3)(e) of this section. Wells v. Kentucky Local Correctional Facilities Constr. Authority, 730 S.W.2d 951, 1987 Ky. App. LEXIS 499 (Ky. Ct. App. 1987).

3.Medical Director.

A medical director of a medical health plan was not excepted from recovery under KRS 337.385 because he was “employed in a bona fide executive, administrative, supervisory or professional capacity,” under subdivision (2) of this section because the context “required otherwise;” it is just as unlawful to fail to pay or to withhold a part of the salary of an executive, administrative, supervisory or professional employee as it would be to do so in the case of any other type of employee. Healthcare of Louisville v. Kiesel, 715 S.W.2d 246, 1986 Ky. App. LEXIS 1214 (Ky. Ct. App. 1986).

4.Sovereign Immunity.

Where county employees alleged that the county violated the Fair Labor Standards Act, 29 USCS § 201 et seq., and the Kentucky Wages and Hours Act, KRS ch. 337, their state law claims were barred by sovereign immunity, which was not waived by KRS 337.010(2)(a)(9). Crawford v. Lexington-Fayette Urban County Gov't, 2007 U.S. Dist. LEXIS 2567 (E.D. Ky. Jan. 9, 2007).

5.Recoupment of Commissions.

Judgment ordering an employer to return recouped commissions to its employees was improper because, although the possibility that the commissions could later have been recouped under certain circumstances did not transform them into advances, the employees had agreed that the commissions would be debited if an account stopped paying within a 12 month period; the wages agreed upon included this charge back provision. Therefore, the recoupment was not of wages “agreed upon,” and did not violate KRS 337.060 . AT&T Corp. v. Fowler, 2007 Ky. App. LEXIS 339 (Ky. Ct. App. Sept. 14, 2007, sub. op., 2007 Ky. App. Unpub. LEXIS 209 (Ky. Ct. App. Sept. 14, 2007).

6.Preemption of Contract Claims.

In the absence of any Kentucky decision indicating that the Kentucky Wages and Hours Act, KRS 337.010 et seq., preempted contract claims, the court was reluctant to predict that such a significant restriction upon the common law of contract was in the offing. Dodd v. Dyke Indus., 2008 U.S. Dist. LEXIS 34786 (W.D. Ky. Apr. 25, 2008).

7.Employees.

Defendant was entitled to partial summary judgment on plaintiffs’ claims for overtime wages under the Fair Labor Standards Act, 29 U.S.C.S. § 207, and the Kentucky Wages and Hours Act (KWHA), KRS 337.285(1), because plaintiffs were employed in a “bona fide administrative capacity,” and fell within the overtime wage exemption of 29 U.S.C.S. § 213(a)(1), and outside of the scope of “employee” under KRS 337.010(2)(a)(2). Because it appeared that the protections of KRS 337.385(1) and 337.055 might not apply to plaintiffs because they fell outside of the scope of “employee” as defined in the KWHA, the court reserved ruling on plaintiffs’ claims for unpaid wages and liquidated damages under KRS 337.385(1) and 337.055 and requested briefing on the issue. Fox v. Lovas, 2012 U.S. Dist. LEXIS 27908 (W.D. Ky. Mar. 1, 2012).

Store managers were properly considered supervisors under KRS 337.010(2) and 803 Ky. Admin. Regs. 1:070 § 5 where they regularly and customarily set employees’ schedules, ensured that employees unloaded weekly truck shipments, directed at least four half-time employees, their most important duties were ensuring that the retail store ran smoothly and that company policies were followed, and they were relatively free from direct personal supervision. Barker v. Family Dollar, Inc., 2012 U.S. Dist. LEXIS 153331 (W.D. Ky. Oct. 25, 2012).

Trial court did not err in denying the employee’s motion for a directed verdict where there was conflicting testimony as to the qualifications and knowledge needed, and thus, the issue of whether he was a bona fide professional was properly before the jury. Hunziker v. AAPPTec, LLC, 603 S.W.3d 277, 2020 Ky. App. LEXIS 49 (Ky. Ct. App. 2020).

8.Payment of “Earned Bonuses.”

Employee's wage payment claim was properly dismissed because the employer had paid the employees all monies owed to him as of the date his employment terminated, the employee's claims for short-term and long-term incentive compensation and vacation and holiday pay failed, and because the employee's temporary-living-expenses claim was connected to his relocation, not his continued employment, it did not fall within the meaning of “wages.” Vogel v. E.D. Bullard Co., 597 Fed. Appx. 817, 2014 FED App. 0949N, 2014 U.S. App. LEXIS 24665 (6th Cir. Ky. 2014 ).

9.Judicial estoppel.

Partial summary judgment was denied to two employers in several employees’ claims under the Fair Labor Standards Act, 29 U.S.C.S. § 201 et seq., and the Kentucky Wages and Hours Act, KRS 337.010 et seq., because a failure to identify the claims in bankruptcy filings did not mean that they were precluded by judicial estoppel. Two employees could not have been charged with having known of their claims at the time they filed for bankruptcy, and a third employee’s swift amendment of his bankruptcy filings worked in his favor. Finney v. Free Enter. Sys., 2011 U.S. Dist. LEXIS 33858 (W.D. Ky. Mar. 29, 2011).

10.Municipal Corporations.

Both cities and counties were subject to the wage and hour requirements of Kentucky law, including the pay that local firefighters received as part of an incentive to upgrade their training. Municipal corporations were included under that law and did not have immunity from it since the definition of “employer” found in KRS 337.010(1)(d) expressly included corporations and a municipal corporation was a corporation. Madison County Fiscal Court v. Ky. Labor Cabinet, 352 S.W.3d 572, 2011 Ky. LEXIS 114 ( Ky. 2011 ).

Case was remanded because plaintiffs’ state law claims were not preempted by § 301 of the Labor Management Relations Act of 1947 because their claims were based solely on rights created by state law under KRS 336.700(2), 337 and did not require substantial interpretation of the collective bargaining agreement. Defendants’ removal was also procedurally defective because the removal was untimely under 28 U.S.C.S. § 1446(b), and defendants waived the right to removal by affirmatively seeking relief in state court. Hughes v. UPS Supply Chain Solutions, Inc., 815 F. Supp. 2d 993, 2011 U.S. Dist. LEXIS 112770 (W.D. Ky. 2011 ).

11.Employer.

Plain language of Ky. Rev. Stat. Ann. § 337.010 (1)(d) supported the employee’s position that an LLC member was an employer for purposes of the Kentucky Wages and Hours Act, Ky. Rev. Stat. Ann. § 337.010 et seq. A remand was warranted as the trial court did not consider the language of the statute, and a conflict with LLC law was not a valid reason to grant a directed verdict in favor of the LLC member. Hunziker v. AAPPTec, LLC, 603 S.W.3d 277, 2020 Ky. App. LEXIS 49 (Ky. Ct. App. 2020).

Cited in:

Burrow v. Kapfhammer, 284 Ky. 753 , 145 S.W.2d 1067, 1940 Ky. LEXIS 577 ( Ky. 1940 ); Charos v. Jent, 293 Ky. 50 , 168 S.W.2d 334, 1943 Ky. LEXIS 553 (1943); Young v. Willis, 305 Ky. 201 , 203 S.W.2d 5, 1947 Ky. LEXIS 773 ( Ky. 1947 ); Baughn v. Gorrell & Riley, 311 Ky. 537 , 224 S.W.2d 436, 1949 Ky. LEXIS 1155 ( Ky. 1949 ); Middlekamp v. Willis, 253 S.W.2d 631, 1952 Ky. LEXIS 1123 ( Ky. 1952 ); Chumley v. Cox, 311 S.W.2d 185, 1958 Ky. LEXIS 177 ( Ky. 1958 ); Kerth v. Hopkins County Board of Education, 346 S.W.2d 737, 1961 Ky. LEXIS 328 ( Ky. 1961 ); Board of Trustees v. Public Employees Council No. 51 American Federation of States, etc, 571 S.W.2d 616, 1978 Ky. LEXIS 393 ( Ky. 1978 ); Commonwealth v. Gussler, 278 S.W.3d 153, 2008 Ky. App. LEXIS 251 (Ky. Ct. App. 2008).

Notes to Unpublished Decisions

Analysis

1.Employees.

Unpublished decision: In a given case, an otherwise exempt employee can recover under KRS 337.385 notwithstanding the limitations stated in KRS 337.010 if the context requires otherwise, but there was no evidence of a unique context that warranted an exception from the statutory provisions in the case of a professional electrical engineer who, in performing his tasks as a corporate quality manager, used his engineering skills, his analytic skills and considerable independent judgment to succeed in his work. He supervised others and made employment decisions. Whitewood v. Robert Bosch Tool Corp., 323 Fed. Appx. 397, 2009 FED App. 0227N, 2009 U.S. App. LEXIS 6227 (6th Cir. Ky. 2009 ).

2.Payment of “earned bonuses”.

Unpublished decision: Where plaintiff former employee sued defendant former employer alleging a failure to pay an earned bonus under KRS 337.055 , while the term “wages” included “earned bonuses” within its definition under KRS 337.010(1)(c), because the bonus plan awarded bonuses if the company reached certain target levels of performance, which referred to the employer’s performance during each fiscal year, and the employee had worked for only four months of the fiscal year, and the employer offered evidence that it did not award, and had never awarded, pro rata bonuses, summary judgment in favor of the employer was affirmed. Guagenti v. James N. Gray Co., 105 Fed. Appx. 717, 2004 U.S. App. LEXIS 14350 (6th Cir. Ky. 2004 ).

7.Employees.

Unpublished decision: On an employee's claim that his employer violated Ky. Rev. Stat. Ann. § 337.385 when it failed to pay him severance and benefits, the employee did not identify context and equities of his particular case which would overcome this statute's exclusion of individuals employed in a bona fide executive, administrative, supervisory, or professional capacity. Because the employee failed to show that the “context required otherwise,” the district court did not err in granting the employer summary judgment on this claim. Hackney v. Lincoln Nat'l Fire Ins. Co., 657 Fed. Appx. 563, 2016 FED App. 0592N, 2016 U.S. App. LEXIS 19989 (6th Cir. Ky. 2016 ).

Opinions of Attorney General.

A water commission of a county would be governed by the terms of KRS Chapter 337. OAG 65-312 .

Minimum wage and maximum hour provisions do not apply to county jail deputies. OAG 67-333 .

If the federal government has not set a prevailing wage on a project, the Kentucky prevailing wage would apply. Common sense does not allow the conclusion that the General Assembly would establish these elaborate procedures and safeguards to insure a fair wage for laborers and mechanics and then disregard this idea simply because federal funds are involved. OAG 68-362 .

Since the contract between the public authority and the contractor provides that if the Kentucky prevailing wage rate is higher than the federal government’s, the Kentucky rate will be paid, and the Department of Labor is given the duty of administering and enforcing KRS 337.510 to 337.550 by the statute, the Department of Labor has jurisdiction to enforce a contract that agrees to adopt the provisions of KRS 337.510 to 337.550 rather than the lower federal prevailing rate. OAG 68-362 .

Since they do not perform work which aids in enhancing or completing the actual construction of a project, night watchmen and guards employed by a contractor engaged in public works projects are not included under provisions of the prevailing wage law. OAG 73-429 .

Since the federal basic minimum wage is higher than the state minimum wage under KRS 337.275 , the federal law applies to state and local employees, but since the state law has a lower workweek before overtime provisions apply to state and local employees, including policemen, firemen, and security officers under KRS 337.285 , the state law as to overtime is applicable and, pursuant to KRS 337.050 , state and local employees who work seven (7) days in any one (1) work week must be paid time and a half for the seventh day. OAG 74-532 .

The Kentucky Minimum Wage Law covers all state and local governmental agencies regardless of the number of employees as there is no exclusion in the law for governmental units employing less than a certain number of people. OAG 74-559 .

This law does not apply to volunteer firemen as they are not considered employees. OAG 74-559 .

If a fire chief is paid a salary and supervises no employee, he must be paid the state or federal minimum wage, whichever is higher, unless he meets the criteria of an executive, administrative, supervisory or professional category under subdivision (2)(c)(ii) (now subdivision (2)(a) 2.) of this section, in which case he would not have to be paid overtime. OAG 74-559 .

If a city chief of police on 24-hour call seven (7) days a week and receiving $400 per month plus the use of a city apartment meets the definition of an executive, administrative, supervisory or professional employee under subdivision (2)(c)(ii) (now subdivision (2)(a)2.) of this section, he should be excluded from the Kentucky minimum wage law, and by implication from the overtime provisions, but if he does not meet the definition, then he must be paid minimum wages and be covered for overtime. OAG 74-602 .

All automobile dealerships which do $95,000 gross annual sales, exclusive of excise taxes, are covered under the state minimum wage law. Automobile salesmen are excluded both from the state minimum wage and the overtime section of the law. Parts managers are covered by the minimum wage but are excluded from the overtime provisions, and mechanics are neither excluded from the minimum wage nor the overtime provisions and must be paid time and a half their regular rate of pay for all hours worked in excess of forty hours per workweek. OAG 74-777 .

Tobacco workers employed not by farmers but by warehousemen and engaged in stripping, grading, buying, stemming, sorting, redrying, packing and storing tobacco are not “employed in agriculture” within the exemption provision of subdivision (2)(c)(i) (now subdivision (2)(a)2.) of this section and are entitled to the minimum wage and overtime provisions of KRS 337.275 and 337.285 . OAG 75-55 .

An election officer is not an “employee” pursuant to subdivision (2)(c) (now subdivision (2)(a)) of this section and therefore is not subject to KRS 337.275 which would require payment of a minimum wage. OAG 75-664 .

Part-time deputy marshals of a city are entitled to the state minimum wage as there is no exclusion for part-time employees. OAG 75-692 .

A police officer’s hourly wage rate and what he receives through the city’s participation in the K.L.E.F.P.F. program must both be included in the officer’s total compensation in order to arrive at a rate upon which overtime compensation can be computed. OAG 76-361 .

Although the Council of State Governments is exempt from taxes of Kentucky, the Council is not exempt from the Kentucky minimum wage law and employees who do not fall in exempt categories would be subject to Kentucky’s minimum wage and overtime provisions. OAG 76-530 .

The Elizabethtown Public Properties Holding Company, Inc. does not fall within the definition of public authority as that term is defined in subsection (3)(d) of this section and any construction performed under its jurisdiction is not required to meet the requirements of the prevailing wage law. OAG 76-638 .

Housemothers and housefathers in dormitories or homes operated by an alternative residential program and owned by the local school board would not be exempt from state minimum and overtime wages as domestic servants or babysitters in the private home of the employer. OAG 77-782 .

In order for the Preservation Alliance of Louisville and Jefferson County to be involved in prevailing wage work, it must act as an agency and instrumentality of the government and the construction must be of public building facilities; in the activity of restoring private homes to private individuals, there is no construction of public building facilities essential to the definition of “public authority.” OAG 78-604 .

A companion to a sick and elderly person need not be the employee of the sick and elderly person, but must actually live in the same domicile that the sick and elderly person resides in; merely staying 24 hours with that person will not constitute “living in.” OAG 78-699 .

If X company hires the babysitter, pays the wages and receives a fee from the homeowner (which is greater than the employee’s wages), decides what hours the employee works, and how much he is paid, X company is the employer, and the employee does not babysit in the employer’s home but in the home of the employer’s client or customer, then the exclusion for babysitters does not apply; if X company is merely a broker, a properly licensed private employment agency who merely refers babysitters to employing homeowners, has no control over wages or hours worked, nor pays the employee, the exclusion can apply to the wages of the employee because there the employer is the householder. OAG 78-699 .

In the case of a babysitter, the exclusion to the general requirement of payment of minimum wages or overtime pay is allowable only where the babysitter is employed in the home of the employer and if the employer is the supplying company and not the person for whom the babysitter sits, no exclusion is permitted. OAG 78-699 .

There is no legal distinction under the wording of the statute between an individual third party who hires the companion to the sick or elderly or a corporation who furnishes such companion, even though the companion is the employee of the corporation, rather than an employee of the sick and elderly person. OAG 78-699 .

The minimum wage law does not affect teachers and other certified school personnel since they are exempted as “professional” employees. OAG 79-337 .

Where a prospective babysitter for handicapped children is placed in training by the council for retarded citizens before inclusion on the council’s registry, that would constitute a student-teacher situation not an employment situation, and such a training period would not constitute employment subject to the state minimum wage law. OAG 80-196 .

Where babysitting takes place in the babysitter’s home rather than the employer’s, the exclusion in subdivision (2)(a)(vii) (now subdivision (2)(a)7.) of this section does not apply; however, the babysitter becomes an independent contractor of a business and falls under the retail service situation so that as long as the babysitter does not have gross sales of $95,000 per year, the babysitter would not have to be paid the state minimum wage. OAG 80-196 .

The term “employer” applied in KRS 337.060 includes all employers in Kentucky, as encompassed in this section rather than being limited to employers covered by state or federal minimum wage laws. OAG 81-14 .

Police officers, including the chief of police, are considered employees under the wage and hour law, particularly subdivision (2)(a)(ii) (now subdivision (2)(a)2.) of this section; however, the fact that these officers are considered “employees” insofar as the wage and hour law is concerned does not mean that they are to be considered for all other purposes, municipal employees rather than officers. OAG 81-48 .

Moneys paid to firemen under the Professional Fire Fighters Foundation Program Fund on a regular basis as incentive pay are “wages” under this section since it is an advantage agreed upon by the employee or employer as an established policy; accordingly, these moneys would be part of his regular base pay and utilized in determining the amount of his overtime pay when he works over 40 hours per week. OAG 81-260 .

The manufacture of products by prisoners in a private production center on the prison grounds would not constitute public works or public construction within the meaning of subsection (3) of this section which would entitle the prisoners to the prevailing wage pursuant to KRS 337.505 . OAG 81-411 .

Deputy sheriffs are subject to time and a half for employment in excess of 40 hours. OAG 82-118 .

This section does not exclude county employees. OAG 82-118 .

Acts 1982, ch. 54, amending KRS 337.505 , 337.520 , 337.530 , and this section, relating to prevailing wages, is applicable to construction projects carried on by the Kentucky Local Correctional Facilities Construction Authority. OAG 82-314 .

The prevailing wage law in effect on the date of advertisement is the applicable law for that project and governmental entity. OAG 82-368 .

Any attempt to avoid the prevailing wage provisions in building a facility (not a learning building) by simply including it in a learning building project, would violate the prevailing wage law. OAG 82-480 .

By the plain language of subdivision (3)(e) of this section defining “public works,” source of funds is not germane to the determination of whether buildings constructed as institutions of learning are exempt so long as the public works construction project is for a learning building. OAG 82-480 .

Under the 1982 amendments of the definitions of “construction” and “public works,” prevailing wages need not be paid on a public works construction project that will cost less than $250,000; with a public works construction project in the form of buildings to be used as institutions of learning, irrespective of costs and irrespective of source of funds utilized, prevailing wages need not be paid. With a public works construction project, other than for buildings to be used as institutions of learning, in an amount exceeding $250,000, prevailing wages need be paid only if 50 percent or more of the project is being financed with state funds. OAG 82-480 .

Under the 1982 amendments to this section, “buildings constructed as institutions of learning” are excluded from the definition of “public works” with the result being that prevailing wages need not be paid in constructing such buildings; such buildings could include adjunct facilities when such adjunct facilities are all a part of the “learning building” project and are all a part of one (1) contract. The General Assembly did not intend that support facilities such as sewers, sewage disposal plants, access roads and the like necessary for the complete utilization of the learning buildings are to be treated differently than the learning building structure itself. OAG 82-480 .

Since a county housing authority is a separate governmental entity and not part of a county itself, it is not exempted under subsection (3)(e) of this section and is required to pay the prevailing wage. Further, KRS 80.500 still requires the payment of minimum wages in contracts. OAG 82-560 .

The jailer is the “employer” of the jail matron under subsection (1)(d) of this section, since he employs the “employees,” who are the jail deputies, including the matron; county deputies to constitutional officers, including jailer deputies, are not listed in the exceptions to the definition of “employee,” for purpose of the wages and hours law, provided under subsection (2)(a) of this section. OAG 82-625 .

If a county jailer employs a matron who is of no relation to the jailer, he must carefully determine whether the time in excess of a 40 hour week is “actually necessary”; where the overtime is not shown to be actually necessary in the exercise of the deputy’s or matron’s public function, such overtime would not be valid against the “jail” budget or the general county budget. Where overtime is not shown to be in the “public good,” this is equivalent to saying that the extra time is not necessary. OAG 82-625 .

KRS 337.285 , providing for time and a half for employment in excess of 40 hours, applies to the jailer as employer and the jail matron as an employee of the jailer; however, if the jail matron is the wife of the jailer, then under subdivision (2)(a)(vi) (now subdivision (2)(a) 6.) of this section, such a spouse of the employer would be exempt from the operation of KRS Chapter 337 since, under that subsection a spouse of the employer is expressly exempt. OAG 82-625 .

The determination of whether overtime is actually necessary is a responsibility of the jailer and lies within his sound discretion. OAG 82-626 .

The jailer should authorize work in excess of 40 hours (per week) only where necessary; where it is shown that a jailer is guilty of mismanagement in authorizing an “overtime situation,” he would be personally liable, and liable on his bond for the payment of the overtime to the deputy or matron and the claim would not be payable from the jail fund or county treasury. Where the overtime is necessary, the claim for overtime must now be paid from the jail fund, or from the county treasury generally, where there are no jail budget funds to pay it. OAG 82-626 .

A deputy jailer and matron are public officers, generally, as well as being employees under KRS Chapter 337. OAG 82-626 .

Even prior to the effective date of Acts 1982, c. 385, the jailer was the “employer” and the deputy jailer was the “employee” under subsection (1)(d) and (e) of this section; the deputy jailer is not exempt from KRS Chapter 337, unless the deputy jailer (matron) was the wife, child or other member of the jailer’s immediate family. OAG 82-626 .

The term “state funds” as formerly used in subdivision (3)(e) of this section includes any funds which come from the state treasury even though the moneys may be earmarked by statute for a particular agency, state or county; if a local project has received a 50% or more contribution from the state treasury for construction of a prevailing wage project, the prevailing wage law is applicable. OAG 83-374 .

Where employer initiated a pay system wherein all payroll checks are directly deposited in a local banking institution without the express permission of the involved employees and monthly service charges were assessed by the bank in the event the employee/depositor failed to maintain a certain minimum balance such plan would violate subdivision (1)(c) of this section, KRS 337.020 , and 337.060 because the employee would be required to pay a fee to the bank should he wish to withdraw his entire balance as such withdrawal would give him less than the required minimum balance at the end of the month. The present plan was illegal, because the employee was not receiving his full pay, but must pay a charge to the bank in order to obtain his entire pay for the affected pay period. OAG 83-459 .

County constitutional officers with deputies have the authority to authorize their deputies to work in excess of a 40-hour workweek, where it is reasonably necessary to carry out the statutory duties of the constitutional officer. OAG 84-183 .

The actual determination of whether overtime work is necessary rests with the employer, i.e., the constitutional officer who appointed the deputy and who pays the deputy’s salary out of the fees of his office. OAG 84-183 .

The fiscal court has no authority to require its approval for overtime work of deputies of local constitutional officers where the deputy’s salary is paid out of the sheriff’s fees. OAG 84-183 .

In the event that the salary of the deputy sheriff is paid out of the county treasury, the fiscal court would not become the “employer” under KRS Chapter 337, but it would have the authority to approve or disapprove of overtime payment of such deputy, where the overtime pay is to come out of the county treasury; the fiscal court, under its powers given in KRS 67.080 , would have the authority, in passing on such expenditure from the county treasury, to use its sound judgment as to whether the overtime was lawfully authorized by the sheriff. The employer in this situation is the constitutional officer, i.e., the sheriff, who is the actual employer under subdivision (1)(d) of this section; the actual employer, as such, hires, fires, and directs the deputy in his statutory duties. OAG 84-183 .

For purposes of the Prevailing Wage Law, the Lexington-Fayette Urban County Airport Board was not excluded or exempted from the payment of prevailing wages pursuant to subdivision (3)(e) of this section, because it was not a city, not a county, and not an urban county government. OAG 86-73 .

In order to comply with Kentucky’s prevailing wage laws, the estimated cost of a public construction project must be determined by the notification of the project’s estimated cost submitted by the public authority to the Department of Workplace Standards. OAG 10-008 , 2010 Ky. AG LEXIS 213.

Research References and Practice Aids

Cross-References.

Apprenticeship, KRS Chapter 343.

Child labor, KRS Chapter 339.

Contracts, KRS Chapters 371, 372.

Drivers of carriers, regulation of working hours, KRS 281.730 .

General Assembly not to pass special acts to regulate labor, trade, mining or manufacturing, Ky. Const., § 59(24).

Health of employees, KRS Chapter 338.

Housing commissions may require contractors to comply with wage and hour rules, KRS 80.500 .

Labor Cabinet, KRS Chapter 336.

Liens for wages, KRS 376.150 to 376.190 , 376.360 .

Occupations and professions, KRS Chapters 309 to 335B.

Person not to deprive another of employment because of membership in national guard, KRS 38.460 .

Safety of employees, KRS Chapter 338.

Commissioner to administer wage law, KRS 336.050 .

Unemployment compensation based on wages, KRS 341.260 et seq.

Workers’ compensation, KRS Chapter 342.

Kentucky Bench & Bar.

Gilliland and McCormick, Minimum Wage and Overtime Pay, Vol. 56, No. 4, Fall 1992 Ky. Bench & B. 32.

Kentucky Law Journal.

Nowka and Taylor, Kentucky Employees’ Wage Liens: A Sneak Attack on Creditors, but Beware of the Bankruptcy Trustee, 84 Ky. L.J. 317 (1995-96).

Northern Kentucky Law Review.

Zielke, Public Sector Labor Law in Kentucky, 6 N. Ky. L. Rev. 327 (1979).

General Law Issue: Note: Front Pay Under the FMLA, 38 N. Ky. L. Rev. 259 (2011).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Work and Labor Provisions Under KRS 337, § 280.00.

Payment of Wages Generally

337.015. Leave of absence for employee to receive adoptive child — Adoptive parents to receive paid leave and other benefits provided to birth parents — Exemptions.

  1. Upon receiving written request by an employee, every employer shall grant reasonable personal leave not to exceed six (6) weeks, or if the employer has established a policy providing time off for birth parents that is greater than six (6) weeks, that period of time shall be the minimum period of leave available to adoptive parents, when the reception of an adoptive child under the age of ten (10) is the reason for such request.
  2. If an employer provides paid leave or any other benefits to employees who are birth parents following the birth of a child, it shall also provide the same type, amount, and duration of paid leave and other benefits to employees following the adoption of a child.
  3. This section shall not apply to an adoption by a fictive kin, stepparent, stepsibling, blood relative, including a relative of halfblood, first cousin, aunt, uncle, nephew, niece, and a person of a preceding generation as denoted by prefixes of grand, great, or great-great, or a foster parent who adopts a foster child who is already in their care.

History. Enact. Acts, 1982, ch. 422, § 1, effective July 15, 1982; 2021 ch. 76, § 1, effective June 29, 2021.

Research References and Practice Aids

Northern Kentucky Law Review.

General Law Issue: Note: Front Pay Under the FMLA, 38 N. Ky. L. Rev. 259 (2011).

337.020. Time of payment of wages — Exception.

Every employer doing business in this state shall, as often as semimonthly, pay to each of its employees all wages or salary earned to a day not more than eighteen (18) days prior to the date of that payment. Any employee who is absent at the time fixed for payment, or who, for any other reason, is not paid at that time, shall be paid thereafter at any time upon six (6) days’ demand. No employer subject to this section shall, by any means, secure exemption from it. Every such employee shall have a right of action against any such employer for the full amount of his wages due on each regular pay day. The provisions of this section do not apply to those individuals defined in KRS 337.010(2)(a)2.

History. 576a-1: amend. Acts 1978, ch. 340, § 2, effective June 17, 1978; 1982, ch. 126, § 1, effective July 15, 1982.

NOTES TO DECISIONS

1.Exemption.

Store managers were not entitled to the benefits of KRS 337.020 where they were supervisors for purposes of KRS 337.010(2)(a)(2). Barker v. Family Dollar, Inc., 2012 U.S. Dist. LEXIS 153331 (W.D. Ky. Oct. 25, 2012).

Cited:

Barker v. Stearns Coal & Lumber Co., 287 Ky. 340 , 152 S.W.2d 953, 1941 Ky. LEXIS 534 ( Ky. 1941 ); Noel v. Season-Sash, Inc., 722 S.W.2d 901, 1986 Ky. App. LEXIS 1498 (Ky. Ct. App. 1986).

Opinions of Attorney General.

It was the clear intent of the legislature under this section to require firms, individuals and partnerships, as well as corporations, to pay employees at least as frequently as semimonthly, and under subsection (1) of KRS 337.990 to penalize those who fail to comply. OAG 70-830 .

Vacation pay must “vest” at the time of an employee’s separation in order to be “earned” and, thus, to be considered “wages.” Under a written collective bargaining agreement, whether such pay has vested may be determined from the terms of the agreement although, where there is no such agreement, it will be difficult or impossible to make such a determination. OAG 76-387 .

The intention of the legislature in enacting this section was to require that all of a business corporation’s employees should be paid their wages at certain specified times and, therefore, in construing the term “employee” the common-law usage should be used rather than the definition set out in KRS 337.010 . OAG 76-681 .

This section only applies to a situation where the employee is still on the payroll and KRS 337.055 applies where the employee is no longer on the payroll. OAG 79-541 .

Under this section, a deputy and matron who have not been paid have a right of action against the jailer and fiscal court for the full amount of wages due on each regular payday. The affected deputy and matron could go into the local circuit court with a mandamus action, seeking a judgment ordering the fiscal court and county treasurer to pay their salaries pursuant to this section. OAG 82-400 (modifying OAG 82-155 , 80-319 and related opinions).

This section applies to the payment of jail employees, including the jailer’s deputies, and the exception listed in this section does not apply to such county jail employees; thus, the jailer must pay the county jail employees as often as semi-monthly all salary earned to a day not more than 18 days prior to the date of that payment. OAG 83-423 .

Where employer initiated a pay system wherein all payroll checks are directly deposited in a local banking institution without the express permission of the involved employees and monthly service charges were assessed by the bank in the event the employee/depositor failed to maintain a certain minimum balance such plan would violate KRS 337.010(1)(c), this section and KRS 337.060 and this section because the employee would be required to pay a fee to the bank should he wish to withdraw his entire balance as such withdrawal would give him less than the required minimum balance at the end of the month. The present plan was illegal, because the employee was not receiving his full pay, but must pay a charge to the bank in order to obtain his entire pay for the affected pay period. OAG 83-459 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Work and Labor Provisions Under KRS 337, § 280.00.

337.030. Wage earners to be paid in lawful money. [Repealed.]

Compiler’s Notes.

This section (1350) was repealed by Acts 1978, ch. 340, § 7.

337.040. Redemption of script — Action to enforce — Purchaser to keep record. [Repealed.]

Compiler’s Notes.

This section (4758b-1) was repealed by Acts 1978, ch. 340, § 7.

337.050. Time and a half for work done on seventh day of week — Exceptions.

  1. Any employer who permits any employee to work seven (7) days in any one (1) workweek shall pay him at the rate of time and a half for the time worked on the seventh day. For the purposes of this subsection, the term “workweek” shall mean a calendar week or any other period of seven (7) consecutive days adopted by the employer as the workweek with the intention that the same shall be permanent and without the intention to evade the overtime provision set out herein.
    1. Subsection (1) shall not apply in any case in which the employee is not permitted to work more than forty (40) hours during the workweek. In that case the employer may credit against the overtime payable under this section any overtime paid by him to the employees for the same hours under the requirements of any other law or contract. (2) (a) Subsection (1) shall not apply in any case in which the employee is not permitted to work more than forty (40) hours during the workweek. In that case the employer may credit against the overtime payable under this section any overtime paid by him to the employees for the same hours under the requirements of any other law or contract.
    2. Subsection (1) shall not apply to telephone exchanges having less than five hundred (500) subscribers, nor to stenographers, bookkeepers, or technical assistants of professions such as doctors, accountants, lawyers, and other professions licensed under the laws of this state, nor to any employees subject to the Federal Railway Labor Act and seamen or persons engaged in operating boats or other water transportation facilities upon navigable streams, nor to persons engaged in icing railroad cars, nor to common carriers under the supervision of the Department of Vehicle Regulation.
  2. “Employee” as used in subsection (1) does not include any officer, superintendent, foreman, or supervisor whose duties are principally limited to directing or supervising other employees.

History. 1599c-20: amend. Acts 1974, ch. 28, § 1; 1974, ch. 74, Art. IV, § 20(2).

NOTES TO DECISIONS

1.Exemption.

Claim that an employer violated the seventh day statute failed where the store managers fell into the supervisor exception of KRS 337.010(2), such that they were excluded from the benefits provided in KRS 337.385 . Barker v. Family Dollar, Inc., 2012 U.S. Dist. LEXIS 153331 (W.D. Ky. Oct. 25, 2012).

Cited:

Chumley v. Cox, 311 S.W.2d 185, 1958 Ky. LEXIS 177 ( Ky. 1958 ); Commonwealth v. Arlan’s Dep’t Store, 357 S.W.2d 708, 1962 Ky. LEXIS 140 ( Ky. 1962 ); Noel v. Season-Sash, Inc., 722 S.W.2d 901, 1986 Ky. App. LEXIS 1498 (Ky. Ct. App. 1986).

Opinions of Attorney General.

Minimum wage and maximum hour provisions do not apply to county jail deputies. OAG 67-333 .

Counties are political subdivisions of the state and are exempt from the minimum wage obligations imposed by KRS Chapter 337. OAG 68-70 .

The term “workweek” as designated in this section means any consecutive period of seven (7) days of work, whether same shall coincide with the calendar week, the employer’s workweek, or employee’s workweek. OAG 70-600 .

Since the federal basic minimum wage is higher than the state minimum wage under KRS 337.275 , the federal law applies to state and local employees, but since the state law has a lower workweek before overtime provisions apply to state and local employees, including policemen, firemen and security officers under KRS 337.285 , the state law as to overtime is applicable and, pursuant to this section, state and local employees who work seven (7) days in any one (1) workweek must be paid time and a half for the seventh day. OAG 74-532 .

The Kentucky minimum wage law places no restrictions or requirements on holidays or weekends, but it affects the “seventh day law” (KRS 337.050 ), and if a county employee, such as a policeman, works seven (7) consecutive days during his workweek, he has to be paid time and one half (1/2) his regular rate of pay on the seventh day of that workweek unless his total hours are 40 or less during the workweek. OAG 74-593 .

Based upon the state minimum wage law and the regulations pertaining thereto, it would be illegal to allow officers covered by the overtime provisions to receive time off or compensatory time instead of wages for overtime hours. OAG 75-216 .

To be able to work seven (7) days, the employer must meet the exceptions set out in KRS 436.160(1), (3) or (4); however, because an employer, who qualifies for the exception to the Sunday working rules pursuant to the continuous work scheduling requirement, must provide his employees with one (1) day of rest each calendar week, this section will not come into play; therefore, the overtime pay provisions only apply to those businesses that meet the exceptions specified in KRS 436.160(1) and (3). OAG 95-38 .

Research References and Practice Aids

Kentucky Bench & Bar.

Gilliland and McCormick, Minimum Wage and Overtime Pay, Vol. 56, No. 4, Fall 1992 Ky. Bench & B. 32.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Work and Labor Provisions Under KRS 337, § 280.00.

337.055. Payment of all wages or salary upon dismissal or voluntary leaving required.

Any employee who leaves or is discharged from his employment shall be paid in full all wages or salary earned by him; not later than the next normal pay period following the date of dismissal or voluntary leaving or fourteen (14) days following such date of dismissal or voluntary leaving whichever last occurs. Any employee who is absent at the time fixed for payment by an employer, or who, for any other reason, is not paid at that time, shall be paid thereafter at any time or upon fourteen (14) days’ demand. No employer shall, by any means, secure exemption from this section.

History. Enact. Acts 1974, ch. 275, § 1.

NOTES TO DECISIONS

Analysis

1.Payment of “Earned Bonuses.”

Employee's wage payment claim was properly dismissed because the employer had paid the employees all monies owed to him as of the date his employment terminated, the employee's claims for short-term and long-term incentive compensation and vacation and holiday pay failed, and because the employee's temporary-living-expenses claim was connected to his relocation, not his continued employment, it did not fall within the meaning of “wages.” Vogel v. E.D. Bullard Co., 597 Fed. Appx. 817, 2014 FED App. 0949N, 2014 U.S. App. LEXIS 24665 (6th Cir. Ky. 2014 ).

1.5.Employee.

Defendant was entitled to partial summary judgment on plaintiffs’ claims for overtime wages under the Fair Labor Standards Act, 29 U.S.C.S. § 207, and the Kentucky Wages and Hours Act (KWHA), KRS 337.285(1), because plaintiffs were employed in a “bona fide administrative capacity,” and fell within the overtime wage exemption of 29 U.S.C.S. § 213(a)(1), and outside of the scope of “employee” under KRS 337.010(2)(a)(2). Because it appeared that the protections of KRS 337.385(1) and 337.055 might not apply to plaintiffs because they fell outside of the scope of “employee” as defined in the KWHA, the court reserved ruling on plaintiffs’ claims for unpaid wages and liquidated damages under KRS 337.385(1) and 337.055 and requested briefing on the issue. Fox v. Lovas, 2012 U.S. Dist. LEXIS 27908 (W.D. Ky. Mar. 1, 2012).

Cited:

Louisville v. Bergel, 610 S.W.2d 292, 1980 Ky. LEXIS 278 ( Ky. 1980 ); Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 2005 Ky. LEXIS 234 ( Ky. 2005 ); Dodd v. Dyke Indus., 518 F. Supp. 2d 970, 2007 U.S. Dist. LEXIS 78248 (W.D. Ky. 2007 ).

Notes to Unpublished Decisions

1.Payment of “earned bonuses”.

Unpublished decision: Where plaintiff former employee sued defendant former employer alleging a failure to pay an earned bonus under KRS 337.055 , while the term “wages” included “earned bonuses” within its definition under KRS 337.010(1)(c), because the bonus plan awarded bonuses if the company reached certain target levels of performance, which referred to the employer’s performance during each fiscal year, and the employee had worked for only four months of the fiscal year, and the employer offered evidence that it did not award, and had never awarded, pro rata bonuses, summary judgment in favor of the employer was affirmed. Guagenti v. James N. Gray Co., 105 Fed. Appx. 717, 2004 U.S. App. LEXIS 14350 (6th Cir. Ky. 2004 ).

Opinions of Attorney General.

Vacation pay must “vest” at the time of an employee’s separation in order to be “earned” and, thus, to be considered “wages.” Under a written collective bargaining agreement, whether such pay has vested may be determined from the terms of the agreement but, where there is no such agreement, it will be difficult or impossible to make such a determination. OAG 76-387 .

KRS 337.020 only applies to a situation where the employee is still on the payroll and this section applies where the employee is no longer on the payroll. OAG 79-541 .

Since the state is not legally obligated to grant unconditional annual leave as a benefit, it follows that the Department of Personnel may define the terms under which benefits may vest. OAG 91-73 .

It is legally permissible for the Commonwealth to determine by regulation that annual leave may not be converted to terminal wages and salary until 14-days notice of resignation is given. It is also permissible for the Commonwealth to determine that in order to qualify the employee must not have been terminated for misconduct or for poor work performance. OAG 91-73 .

337.060. Unlawful for employer to withhold wages — Exceptions — Specified deductions from wages prohibited.

  1. No employer shall withhold from any employee any part of the wage agreed upon. This section shall not make it unlawful for an employer to withhold or divert any portion of an employee’s wage when the employer is authorized to do so by local, state, or federal law or when a deduction is expressly authorized in writing by the employee to cover insurance premiums, hospital and medical dues, or other deductions not amounting to a rebate or deduction from the standard wage arrived at by collective bargaining or pursuant to wage agreement or statute, nor shall it preclude deductions for union dues where such deductions are authorized by joint wage agreements or collective bargaining contracts negotiated between employers and employees or their representative and meet the requirements of KRS 336.135 . However, a collective bargaining agreement entered into, opted in, renewed, or extended on or after January 9, 2017, shall not contain provisions authorizing or requiring the deduction of any portion of an employee’s wages without the written consent of the employee.
  2. Notwithstanding the provisions of subsection (1) of this section, no employer shall deduct the following from the wages of employees:
    1. Fines;
    2. Cash shortages in a common money till, cash box or register used by two (2) or more persons;
    3. Breakage;
    4. Losses due to acceptance by an employee of checks which are subsequently dishonored if such employee is given discretion to accept or reject any check; or
    5. Losses due to defective or faulty workmanship, lost or stolen property, damage to property, default of customer credit, or nonpayment for goods or services received by the customer if such losses are not attributable to employee’s willful or intentional disregard of employer’s interest.

History. 1599c-19: amend. Acts 1978, ch. 74, § 1, effective June 17, 1978; 1978, ch. 141, § 2, effective June 17, 1978; 1984, ch. 223, § 1, effective July 13, 1984; 2017 ch. 6, § 4, effective January 9, 2017.

NOTES TO DECISIONS

1.Construction.

This section prohibits only the willful withholding of wages with intent to defraud. Poynter v. Louisville R. Co., 309 Ky. 609 , 218 S.W.2d 658, 1949 Ky. LEXIS 775 ( Ky. 1949 ).

2.Deduction by School Board.

This section did not prohibit a school board from deducting union dues from employees’ wages where such deduction was authorized by subsection (2) of KRS 161.158 . Clevinger v. Board of Educ., 789 S.W.2d 5, 1990 Ky. LEXIS 40 ( Ky. 1990 ).

3.Collective Bargaining Agreement.

Award by an arbitrator of a union contract which found that the contract properly provided that funds were to be withheld by the employer from paychecks of all employees eligible for union representation regardless of whether they were actually union members did not violate subsection (1) of this section where the dues deductions provision in the contract clearly fell within the statutory exception because the union was the official representative for the regular full-time maintenance employees, and as such had negotiated a collective bargaining agreement with employer which required dues or the equivalent deduction and the union was the official bargaining representative for all employers, not just those who are members of the union or those who had given employer written authorization for deductions. Accordingly, when the parties negotiated the requirement in the agreement that employer deduct regular union membership dues from employees eligible for union representation, all regular full-time maintenance employees fell within the exemption of subsection (1). Housing Auth. v. Service Employees Int'l Union, Local 557, 885 S.W.2d 692, 1994 Ky. LEXIS 119 ( Ky. 1994 ).

Company did not violate the Kentucky Wage and Hour Act because the employee himself admitted in testimony that he had no entitlement to a Christmas bonus. Stearman v. Ferro Coals, Inc., 751 Fed. Appx. 827, 2017 FED App. 0554N, 2018 U.S. App. LEXIS 31093 (6th Cir. Ky. 2018 ).

4.Recoupment of Commissions.

Judgment ordering an employer to return recouped commissions to its employees was improper because the employees had agreed that the commissions would be debited if an account stopped paying within a 12 month period; the wages agreed upon included this charge back provision. Therefore, the recoupment was not of wages “agreed upon,” and did not violate KRS 337.060 . AT&T Corp. v. Fowler, 2007 Ky. App. LEXIS 339 (Ky. Ct. App. Sept. 14, 2007, sub. op., 2007 Ky. App. Unpub. LEXIS 209 (Ky. Ct. App. Sept. 14, 2007).

5.Preemption of Fraud Claims.

Kentucky Wages and Hours Act, KRS 337.010 et seq., did not preempt a former salesman’s common law fraud claim. An employer could violate the Wages and Hours Act without fraudulent intent; thus, the former salesman’s fraudulent misrepresentation claims regarding concealment of commission calculations were separate from his statutory Wages and Hours Act claims. Dodd v. Dyke Indus., 2008 U.S. Dist. LEXIS 34786 (W.D. Ky. Apr. 25, 2008).

6.Good Faith.

Employee was not entitled to liquidated damages for an employer's failure to pay overtime because the employer acted in good faith by giving the employee extra work to assist the employee and not to thwart underlying public policy. Starr v. Louisville Graphite, Inc., 2016 Ky. App. LEXIS 58 (Ky. Ct. App. Apr. 22, 2016).

7.Deduction by University.

University was properly granted summary judgment on a former medical director’s wage and hour claim where although the university’s governmental immunity had been waived under Ky. Rev. Stat. ch. 337, the director failed to counter the university’s evidence that he had been overpaid by a specific amount, and thus, under former Ky. Rev. Stat. Ann. § 44.030 , the university was entitled to withhold wages. Lipson v. Univ. of Louisville, 556 S.W.3d 18, 2018 Ky. App. LEXIS 201 (Ky. Ct. App. 2018).

Cited:

Noel v. Season-Sash, Inc., 722 S.W.2d 901, 1986 Ky. App. LEXIS 1498 (Ky. Ct. App. 1986), overruled in part, Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 2005 Ky. LEXIS 234 ( Ky. 2005 ), overruled in part as stated, Roby v. Midstates Indus. Group, Inc., — F. Supp. 2d —, 2006 U.S. Dist. LEXIS 78243 (W.D. Ky. Oct. 23, 2006); Dodd v. Dyke Indus., 518 F. Supp. 2d 970, 2007 U.S. Dist. LEXIS 78248 (W.D. Ky. 2007 ).

Opinions of Attorney General.

Gilliland and McCormick, Minimum Wage and Overtime Pay, Vol. 56, No, 4, Fall 1992 Ky. Bench & B. 32.

To interpret this section to require school bus drivers and other noncertified school personnel to be both paid for “snow days” which they did not work and for days worked to make up those days, where there was neither a contractual agreement to pay for snow days as part of the emoluments of the job, nor a statute or regulation to that effect, would be to convert the payment for snow days when they occurred into a bonus or gift in violation of Ky. Const., §§ 3 and 186. OAG 79-337 .

An employer who is permitted under the federal Fair Labor Standards Act regulations to deduct cash shortages from an employee’s wages as long as such deductions do not reduce the employee’s wages below the applicable federal minimum wage, cannot deduct amounts to cover cash shortages without written agreement of the employee under this section since the federal regulations permit such a deduction if it does not result in the wage going below federal standards, but does not authorize or require such a deduction as necessary under this section; except that an employer may deduct for shortages without written agreement if authorized by 803 KAR 1:088. OAG 81-14 .

The term “employer” applied in this section includes all employers in Kentucky, as encompassed under KRS 337.010 , rather than being limited to employers covered by state or federal minimum wage laws. OAG 81-14 .

Where employer initiated a pay system wherein all payroll checks are directly deposited in a local banking institution without the express permission of the involved employees and monthly service charges were assessed by the bank in the event the employee/depositor failed to maintain a certain minimum balance such plan would violate KRS 337.010(1)(c), 337.020 , and this section because the employee would be required to pay a fee to the bank should he wish to withdraw his entire balance as such withdrawal would give him less than the required minimum balance at the end of the month. The present plan was illegal, because the employee was not receiving his full pay, but must pay a charge to the bank in order to obtain his entire pay for the affected pay period. OAG 83-459 .

Research References and Practice Aids

Kentucky Bench & Bar.

Gilliland and McCormick, Minimum Wage and Overtime Pay, Vol. 56, No. 4, Fall 1992 Ky. Bench & B. 32.

337.065. Unlawful for employer to require remittance of gratuity — Tip pooling.

  1. No employer shall require an employee to remit to the employer any gratuity, or any portion thereof, except for the purpose of withholding amounts required by federal or state law. The amount withheld from such gratuity shall not exceed the amount required by federal or state law.
  2. As used in this section, “gratuity” means voluntary monetary contribution received by an employee from a guest, patron, or customer for services rendered.
  3. No employer shall require an employee to participate in a tip pool whereby the employee is required to remit to the pool any gratuity, or any portion thereof, for distribution among employees of the employer.
  4. Employees may voluntarily enter into an agreement to divide gratuities among themselves. The employer may inform the employees of the existence of a voluntary pool and the customary tipping arrangements of the employees at the establishment. Upon petition by the participants in the voluntary pool, and at his own option and expense, an employer may provide custodial services for the safekeeping of funds placed in the pool, if the account is properly identified and segregated from his other business records and open to examination by pool participants.

History. Enact. Acts 1976, ch. 222, § 1; 1996, ch. 115, § 2, effective July 15, 1996.

NOTES TO DECISIONS

1.Class Actions.

Trial court erred in dismissing a server’s class action against a corporation seeking damages and attorney’s fees pursuant to KRS 337.385 , as the server did not waive his right to pursue the cause of action by accepting a settlement for tips improperly withheld by a restaurant under KRS 337.065 in an earlier administrative action, since the release signed by the server applied only to the withheld tips. Singleton v. Bravo Dev., Inc., 2007 Ky. App. LEXIS 352 (Ky. Ct. App. Sept. 21, 2007, sub. op., 2007 Ky. App. Unpub. LEXIS 509 (Ky. Ct. App. Sept. 21, 2007).

Former employers’ motion for reconsideration of court’s class certification decision on former employees’ wage and hour claims was denied because (1) court thoroughly addressed class certification requirements in original memorandum opinion and order and would not revisit those decisions; (2) if employees proved employers’ liability, they would be able to demonstrate that their damages stemmed from employers’ actions that created legal liability; (3) presence of individualized damages could not defeat class certification; and (4) evidence demonstrated that class certification was superior method to adjudicate case fairly and efficiently. Whitlock v. FSL Mgmt., 2013 U.S. Dist. LEXIS 148747 (W.D. Ky. Oct. 16, 2013).

Cited:

Noel v. Season-Sash, Inc., 722 S.W.2d 901, 1986 Ky. App. LEXIS 1498 (Ky. Ct. App. 1986), overruled in part, Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 2005 Ky. LEXIS 234 ( Ky. 2005 ), overruled in part as stated, Roby v. Midstates Indus. Group, Inc., — F. Supp. 2d —, 2006 U.S. Dist. LEXIS 78243 (W.D. Ky. Oct. 23, 2006).

Opinions of Attorney General.

Reducing the amount of tip charged on a credit card by the discount rate which a restaurant owner and a credit card company have negotiated is a violation of this section and, in effect, is remittance of a portion of a gratuity to the employer, even though the employer may assign that portion to a credit card company to cover part of his or her expense of discounting credit card transactions. OAG 87-7 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Work and Labor Provisions Under KRS 337, § 280.00.

337.070. Employer to furnish employee with statement of wage deductions.

All employers who employ ten (10) or more and pay their employees by check or otherwise, making deductions from the salaries and wages due said employees, shall state specifically the amount for which the deductions are made, and each such employer at the time of payment of salary or wage to each employee shall furnish the employee a paper or electronic statement giving the amount of each deduction and the general purpose for which the deduction is made. If an employer provides an electronic statement, then the employer shall provide access to a computer and printer for review and printing by the employee.

HISTORY: Enact. Acts 1944, ch. 63, § 1; 2017 ch. 134, § 5, effective June 29, 2017.

NOTES TO DECISIONS

Cited:

Noel v. Season-Sash, Inc., 722 S.W.2d 901, 1986 Ky. App. LEXIS 1498 (Ky. Ct. App. 1986), overruled in part, Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 2005 Ky. LEXIS 234 ( Ky. 2005 ), overruled in part as stated, Roby v. Midstates Indus. Group, Inc., — F. Supp. 2d —, 2006 U.S. Dist. LEXIS 78243 (W.D. Ky. Oct. 23, 2006).

337.075. Lien on property of employer who violates provisions of chapter — Recording of lien.

  1. A lien may be placed on all property, both real and personal, of an employer who has been assessed civil penalties by the commissioner for violations of the wages and hours provisions of this chapter, but not before all administrative and judicial appeals have been exhausted. The lien shall be in favor of the Labor Cabinet and shall be an amount totaling the unpaid wages and penalties due, together with interest at a rate of twelve percent (12%) per annum from the date the notice of the violation is final, but not before all administrative and judicial appeals have been exhausted. The lien shall be attached to all property and rights to property owned or subsequently acquired by the employer. The commissioner or the commissioner’s designee shall record the lien as provided in subsection (2) of this section. The lien shall show the date on which the notice of violation was issued, the date of the violation, the name and last known address of the employer against whom the assessment was made, and the amount of unpaid wages, penalties, and interest. The lien shall be superior to the lien of any mortgage or encumbrance thereafter created and shall continue for ten (10) years from the time of the recording, unless sooner released or otherwise discharged.
  2. The lien shall be filed in any of the following offices in which the employer owns property or rights to property and any filing fees associated with filing the lien shall be pursuant to KRS 64.012 :
    1. The office of the county clerk of the county in which the defendant employer resides.
    2. The office of the county clerk of the county in which the defendant employer has its principal place of business.
    3. The office of the county clerk of any county in which the defendant employer has property or an interest in property.

History. Enact. Acts 1994, ch. 130, § 1, effective July 15, 1994; 2006, ch. 255, § 24, effective January 1, 2007; 2010, ch. 24, § 1728, effective July 15, 2010.

Employment and Volunteer Firefighting

337.100. Volunteer firefighter, rescue squad member, emergency medical technician, peace officer, or emergency management agency member absent from employment due to emergency or injury incurred in the line of duty.

  1. No employer shall terminate an employee who is a volunteer firefighter, rescue squad member, emergency medical technician, peace officer, or a member of an emergency management agency because that employee, when acting as a volunteer firefighter, rescue squad member, emergency medical technician, peace officer, or a member of an emergency management agency, is absent or late to the employee’s employment in order to respond to an emergency prior to the time the employee is to report to his or her place of employment.
  2. An employer may charge any time that an employee who is a volunteer firefighter, rescue squad member, emergency medical technician, peace officer, or a member of an emergency management agency loses from employment because of the employee’s response to an emergency against the employee’s regular pay.
  3. An employer may request an employee who loses time from the employee’s employment to respond to an emergency to provide the employer with a written statement from the supervisor or acting supervisor of the volunteer fire department, rescue squad, emergency medical services agency, law enforcement agency, or the director of the emergency management agency stating that the employee responded to an emergency and listing the time and date of the emergency.
  4. No employer shall terminate an employee who is a volunteer firefighter, rescue squad member, emergency medical technician, peace officer, or member of an emergency management agency who is absent for a period of no more than twelve (12) months from the employee’s employment because of injuries incurred in the line of duty. The volunteer firefighter, rescue squad member, emergency medical technician, peace officer, or member of an emergency management agency shall provide, at the request of his or her employer:
    1. A written statement from the supervisor, acting supervisor, or director of the volunteer fire department, rescue squad, emergency medical services agency, law enforcement agency, or emergency management agency under whose command the employee was on active duty and on assignment with that fire department, rescue squad, emergency medical services agency, law enforcement agency, or emergency management agency when the injury occurred; and
    2. A written statement from at least one (1) licensed and practicing physician stating that the volunteer firefighter, rescue squad member, emergency medical technician, peace officer, or member of an emergency management agency is injured and a date for the employee’s return to work.
  5. Any employee that is terminated in violation of the provisions of this section may bring a civil action against his or her employer. The employee may seek reinstatement to the employee’s former position, payment of back wages, reinstatement of fringe benefits, and where seniority rights are granted, the reinstatement of seniority rights. In order to recover, the employee shall file this action within one (1) year of the date of the violation of this section.

History. Enact. Acts 2001, ch. 162, § 1, effective June 21, 2001; 2002, ch. 17, § 1, effective July 15, 2002; 2006, ch. 30, § 1, effective July 12, 2006.

Performance Bonds

337.200. Performance bond for wages due from employer engaged in construction work, or the severance, preparation, or transportation of minerals.

Except for employers who have been doing business in the state for five (5) consecutive years, every employer engaged in construction work, or the severance, preparation, or transportation of minerals, shall furnish on a form prescribed by the commissioner a performance bond to assure the payment of all wages due from the employer. Surety for the bond shall be an amount of money equal to the employer’s gross payroll operating at full capacity for four (4) weeks. Any employee whose wages are secured by a bond may obtain payment of those wages, liquidated damages, and attorney’s fees as provided by law on presentation to the commissioner of a final judgment entered by a court of competent jurisdiction. The bond may be terminated, with the approval of the commissioner, on submission of the employer’s statement, lawfully administered under oath, that the employer has ceased doing business in the state and that all due wages have been paid.

History. Enact. Acts 1986, ch. 121, § 1, effective July 15, 1986; 2010, ch. 24, § 1729, effective July 15, 2010.

Minimum Wages

337.210. Unreasonable wage contracts void. [Repealed.]

Compiler’s Notes.

This section (4767a-2: amend. Acts 1966, ch. 158, § 2) was repealed by Acts 1974, ch. 391, § 14.

337.220. Investigation of wages — Request for wage board. [Repealed.]

Compiler’s Notes.

This section (4767a-4: amend. Acts 1966, ch. 158, § 3) was repealed by Acts 1974, ch. 391, § 14.

337.230. Considerations in fixing minimum fair wage. [Repealed.]

Compiler’s Notes.

This section (4767a-1) was repealed by Acts 1974, ch. 391, § 14.

337.240. Wage board — Members — Duties — Powers — Report. [Repealed.]

Compiler’s Notes.

This section (4767a-5; amend: Acts 1966, ch. 158, § 4) was repealed by Acts 1974, ch. 391, § 14.

337.250. Action following wage board report — Directory order. [Repealed.]

Compiler’s Notes.

This section (4767a-6) was repealed by Acts 1974, ch. 391, § 14.

337.260. Special license for less than minimum wage. [Repealed.]

Compiler’s Notes.

This section (4767a-7; amend: Acts 1966, ch. 158, § 5) was repealed by Acts 1974, ch. 391, § 14.

337.270. Mandatory order. [Repealed.]

Compiler’s Notes.

This section (4767a-8) was repealed by Acts 1974, ch. 391, § 14.

337.275. Minimum wage.

  1. Except as may otherwise be provided by this chapter, every employer shall pay to each of his employees wages at a rate of not less than five dollars and eighty-five cents ($5.85) an hour beginning on June 26, 2007, not less than six dollars and fifty-five cents ($6.55) an hour beginning July 1, 2008, and not less than seven dollars and twenty-five cents ($7.25) an hour beginning July 1, 2009. If the federal minimum hourly wage as prescribed by 29 U.S.C. sec. 206(a)(1) is increased in excess of the minimum hourly wage in effect under this subsection, the minimum hourly wage under this subsection shall be increased to the same amount, effective on the same date as the federal minimum hourly wage rate. If the state minimum hourly wage is increased to the federal minimum hourly wage, it shall include only the federal minimum hourly rate prescribed in 29 U.S.C. sec. 206(a)(1) and shall not include other wage rates or conditions, exclusions, or exceptions to the federal minimum hourly wage rate. In addition, the increase to the federal minimum hourly wage rate does not extend or modify the scope or coverage of the minimum wage rate required under this chapter.
  2. Notwithstanding the provisions of subsection (1) of this section, for any employee engaged in an occupation in which he customarily and regularly receives more than thirty dollars ($30) per month in tips from patrons or others, the employer may pay as a minimum not less than the hourly wage rate required to be paid a tipped employee under the federal minimum hourly wage law as prescribed by 29 U.S.C. sec. 203 . The employer shall establish by his records that for each week where credit is taken, when adding tips received to wages paid, not less than the minimum rate prescribed in 29 U.S.C. sec. 203 was received by the employee. No employer shall use all or part of any tips or gratuities received by employees toward the payment of the statutory minimum hourly wage as required by 29 U.S.C. sec. 203. Nothing, however, shall prevent employees from entering into an agreement to divide tips or gratuities among themselves.

History. Enact. Acts 1974, ch. 391, § 2; 1978, ch. 198, § 1, effective June 17, 1978; 1982, ch. 249, § 1, effective July 15, 1982; 1986, ch. 208, § 1, effective July 15, 1986; 1990, ch. 421, § 1, effective July 13, 1990; 1996, ch. 115, § 3, effective July 15, 1996; 1998, ch. 240, § 1, effective July 15, 1998; 2007, ch. 69, § 1, effective June 26, 2007.

NOTES TO DECISIONS

1.Constitutionality.

The requirement under this section that municipalities pay their fire fighters a minimum wage did not per se constitute the exercise of absolute or arbitrary power over the municipalities in violation of Const., § 2. Kentucky Municipal League v. Commonwealth, 530 S.W.2d 198, 1975 Ky. LEXIS 48 ( Ky. 1975 ).

2.Application.

Though the provision for minimum wages was invalid as to municipal employees who are engaged in work of purely local concern, under the theory of severability the provision remained applicable to fire fighters engaged in work of statewide concern. Kentucky Municipal League v. Commonwealth, 530 S.W.2d 198, 1975 Ky. LEXIS 48 ( Ky. 1975 ).

Former employers’ motion for reconsideration of court’s class certification decision on former employees’ wage and hour claims was denied because (1) court thoroughly addressed class certification requirements in original memorandum opinion and order and would not revisit those decisions; (2) if employees proved employers’ liability, they would be able to demonstrate that their damages stemmed from employers’ actions that created legal liability; (3) presence of individualized damages could not defeat class certification; and (4) evidence demonstrated that class certification was superior method to adjudicate case fairly and efficiently. Whitlock v. FSL Mgmt., 2013 U.S. Dist. LEXIS 148747 (W.D. Ky. Oct. 16, 2013).

Cited:

Snyder v. Owensboro, 555 S.W.2d 246, 1977 Ky. LEXIS 499 ( Ky. 1977 ).

Opinions of Attorney General.

Since the federal basic minimum wage is higher than state minimum wage under this section, the federal law applies to state and local employees, but since the state law has a lower workweek before overtime provisions apply to state and local employees, including policemen, firemen and security officers under KRS 337.285 , the state law as to overtime is applicable and, pursuant to KRS 337.050 , state and local employees who work seven days (7) in any one (1) workweek must be paid time and a half for the seventh day. OAG 74-532 .

The Kentucky minimum wage law merely sets the minimum wage for the first 40 hours of work per week and does not preclude an employer from employing his employees beyond 40 hours per week or eight hours per day. OAG 74-593 .

If a city chief of police on 24-hour call seven (7) days a week and receiving $400 per month plus the use of a city apartment meets the definition of an executive, administrative, supervisory or professional employee, he should be excluded from the Kentucky minimum wage law, and by implication from the overtime provisions, but if he does not meet the definition, then he must be paid minimum wages and be covered for overtime. OAG 74-602 .

Based upon the Department of Labor’s regulations LAB-7, 8 and 13, regular recurring compensation such as hazardous duty pay, specialist pay, regular incentive pay and educational allowances are includable in determining a policeman’s base hourly rate, but not court pay which is not regularly paid and comes within the exclusions of section 2(5) of LAB-13. OAG 74-629 .

The Kentucky minimum wage law, which has been found constitutional, uses the Department of Labor’s regulation LAB-7, § 8 in computing the hourly rate of various municipal employees who had previously been paid on a monthly basis by multiplying the monthly salary by 12 to get the yearly salary, dividing by 52 to get the weekly salary, dividing by the number of hours worked per week to give the base rate per hour for the first 40 hours, and then multiplying by 11/2 for all hours worked over 40. OAG 74-906 .

Tobacco workers employed not by farmers but by warehousemen and engaged in stripping, grading, buying, stemming, sorting, redrying, packing and storing tobacco are not “employed in agriculture” within the exemption provision of KRS 337.010 and are entitled to the minimum wage and overtime provisions of this section and KRS 337.285 . OAG 75-55 .

As an election officer is not an “employee” pursuant to KRS 337.010 (2)(c) (now KRS 337.010 (2)(a)), he is not covered by this section. OAG 75-664 .

The state minimum wage law does not exempt part-time or seasonal employees from its orbit. OAG 76-377 .

The Kentucky Department of Labor has the authority to enforce the Kentucky minimum wage and overtime provisions, this section and KRS 337.285 , as to trucking companies employing “over the road” truck drivers who are engaged in interstate commerce. OAG 76-572 .

The state minimum wage law does not exclude part-time or seasonal city employees from coverage under its terms. OAG 82-183 .

While members of the city auxiliary police force must be paid at least the state minimum wage rate for those hours actually worked, even though they are part-time employees, they are not entitled to pay for that portion of time spent “on call” as opposed to hours actually worked. OAG 82-183 .

The state minimum wage statute, this section, as amended in 1982, applies to the jailer deputy and matron. OAG 82-626 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Work and Labor Provisions Under KRS 337, § 280.00.

ALR

Validity of minimum wage statutes relating to private employment. 39 A.L.R.2d 740.

337.280. Publication of names of employers not observing order. [Repealed.]

Compiler’s Notes.

This section (4767a-9) was repealed by Acts 1974, ch. 391, § 14.

337.285. Time and a half for employment in excess of forty hours — Compensatory time — County or city employee, Trooper R Class, CVE R Class — Designated work period for professional firefighters.

  1. No employer shall employ any of his employees for a work week longer than forty (40) hours, unless such employee receives compensation for his employment in excess of forty (40) hours in a work week at a rate of not less than one and one-half (1-1/2) times the hourly wage rate at which he is employed.
  2. This provision shall not apply to the following:
    1. Employees of retail stores engaged in work connected with selling, purchasing, and distributing merchandise, wares, goods, articles, or commodities;
    2. Employees of restaurant, hotel, and motel operations;
    3. Employees as defined and exempted from the overtime provision of the Fair Labor Standards Act in Sections 213(b)(1), 213(b)(6), 213(b)(10), and 213(b)(17) of Title 29, U.S.C.;
    4. Employees whose function is to provide twenty-four (24) hour residential care on the employer’s premises in a parental role to children who are primarily dependent, neglected, and abused and who are in the care of private nonprofit childcaring facilities licensed by the Cabinet for Health and Family Services under KRS 199.640 to 199.670 ; or
    5. Any individual who is employed by a third-party employer or agency other than the family or household using his or her services to provide in-home companionship services for a sick, convalescing, or elderly person.
  3. As used in subsection (2) of this section, “companionship services” means those services which provide in-home fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. These services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services. They may also include the performance of general household work, provided that the household work is incidental, i.e., does not exceed twenty percent (20%) of the total weekly hours worked. The term “companionship services” does not include services relating to the care and protection of the aged or infirm which require and are performed by trained personnel, such as a registered or practical nurse.
  4. Notwithstanding the provisions of subsection (1) of this section or any other chapter of the KRS to the contrary, upon written request by a county or city employee or a Trooper R Class or CVE R Class, made freely and without coercion, pressure, or suggestion by the employer, and upon a written agreement reached between the employer and the county or city employee or the Trooper R Class or CVE R Class before the performance of the work, a county or city employee or a Trooper R Class or CVE R Class who is authorized to work one (1) or more hours in excess of the prescribed hours per week may be granted compensatory leave on an hour-for-hour basis. Upon the written request by a county or city employee or a Trooper R Class or CVE R Class, made freely and without coercion, pressure, or suggestion by the employer, and upon a written agreement reached between the employer and the county or city employee or the Trooper R Class or CVE R Class, before the performance of the work, a county or city employee or a Trooper R Class or CVE R Class who is not exempt from the provisions of the Federal Fair Labor Standards Act of 1938, as amended, 29 U.S.C. secs. 201 et seq., may be granted compensatory time in lieu of overtime pay, at the rate of not less than one and one-half (1-1/2) hours for each hour the county or city employee or the Trooper R Class or CVE R Class is authorized to work in excess of forty (40) hours in a work week.
    1. Upon the request of the county or city employee or the Trooper R Class or CVE R Class, and as provided in subsection (4) of this section, compensatory time shall be awarded as follows: (5) (a) Upon the request of the county or city employee or the Trooper R Class or CVE R Class, and as provided in subsection (4) of this section, compensatory time shall be awarded as follows:
      1. A county or city employee who provided work in excess of forty (40) hours in a public safety activity, an emergency response activity, or a seasonal activity as described in 29 C.F.R. sec. 553.24, may accrue not more than four hundred eighty (480) hours of compensatory time; or
      2. A county or city employee or a Trooper R Class or CVE R Class engaged in other work in excess of forty (40) hours, may accrue not more than two hundred forty (240) hours of compensatory time.
    2. A county or city employee or a Trooper R Class or CVE R Class who has accrued four hundred eighty (480) hours of compensatory time off pursuant to paragraph (a)1. of this subsection, or two hundred forty (240) hours of compensatory time off pursuant to paragraph (a)2. of this subsection, shall for additional overtime hours of work, be paid overtime compensation.
  5. A county or city employee or a Trooper R Class or CVE R Class who has accrued compensatory time off as provided in subsection (4) of this section, and who requested the use of compensatory time, shall be permitted by the employer to use the compensatory time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the employer. Mere inconvenience to the employer shall not constitute a sufficient basis for denial of a county or city employee’s request or a Trooper R Class or CVE R Class request for compensatory time off.
  6. If compensation is paid to a county or city employee or a Trooper R Class or CVE R Class for accrued compensatory time off, the compensation shall be paid at the regular rate earned by the county or city employee or the Trooper R Class or CVE R Class at the time the county or city employee or the Trooper R Class or CVE R Class receives the payment.
  7. Upon a county or city employee’s termination of employment or the termination of employment of a Trooper R Class or CVE R Class, all unused accrued compensatory time shall be paid at a rate of compensation not less than:
    1. The average regular rate received by the county or city employee or the Trooper R Class or CVE R Class during the last three (3) years of the employment of the county or city employee or Trooper R Class or CVE R Class; or
    2. The final regular rate received by the county or city employee or Trooper R Class or CVE R Class, whichever is higher.
  8. Compensatory time shall not be used as a means to avoid statutory overtime compensation. A county or city employee or a Trooper R Class or CVE R Class shall have the right to use compensatory time earned and shall not be coerced to accept more compensatory time than an employer can realistically and in good faith expect to be able to grant within a reasonable period upon the county or city employee or the Trooper R Class or CVE R Class making the request for compensatory time off.
  9. Nothing in subsections (4) to (9) of this section shall be construed to supersede any collective bargaining agreement, memorandum of understanding, or any other agreement between the employer and representative of the county or city employees or the Trooper R Class or CVE R Class.
  10. As used in subsections (4) to (9) of this section:
    1. “County or city employee” means an employee of any county, city, charter county, consolidated local government, unified local government, or urban-county government, including an employee of a county or city elected official;
    2. “CVE R Class” has the same meaning as in KRS 16.010 ; and
    3. “Trooper R Class” has the same meaning as in KRS 16.010 .
  11. In addition to the designation of a work week under subsection (1) of this section, local governments, as defined in KRS 95A.210 (5), may designate a work period for professional firefighter employees as defined in KRS 95A.210 . The designated work period shall be not less than one (1) work week of seven (7) consecutive days and not more than four (4) work weeks of twenty-eight (28) consecutive days for purposes of complying with the requirements of the Federal Labor Standards Act of 1938, as amended, 29 U.S.C. secs. 201 et seq. This subsection shall not exempt local governments from complying with the overtime requirements set forth in subsection (1) of this section and is intended to:
    1. Clarify the option to designate both a work week for compliance with Kentucky law and a work period for compliance with the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. secs. 201 et seq.; and
    2. Allow for the application of the partial exemption set forth in 29 U.S.C. sec. 207(k) in determining overtime pay under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. secs. 201 et seq., only.
    1. A law enforcement department of a consolidated local government organized under KRS Chapter 67C shall not be deemed to have violated subsection (1) of this section with respect to the employment of a peace officer if: (13) (a) A law enforcement department of a consolidated local government organized under KRS Chapter 67C shall not be deemed to have violated subsection (1) of this section with respect to the employment of a peace officer if:
      1. The officer works eighty (80) hours or less in a work period of fourteen (14) consecutive days; and
      2. The law enforcement department and a representative of a collective bargaining unit certified under KRS 67C.408 that includes the officer agree to the exception.
    2. It is the intent of this subsection to allow the employment of a peace officer for longer than forty (40) hours in any seven (7) consecutive days within a fourteen (14) day work period without incurring the obligation to pay a rate of not less than one and one-half (1-1/2) times the officer’s hourly wage under subsection (1) of this section.

HISTORY: Enact. Acts 1974, ch. 391, § 3; 1976, ch. 285, § 1; 1978, ch. 198, § 2, effective June 17, 1978; 1980, ch. 326, § 1, effective July 15, 1980; 1982, ch. 376, § 1, effective July 15, 1982; 1986, ch. 423, § 193, effective July 1, 1987; 1998, ch. 426, § 559, effective July 15, 1998; 2002, ch. 68, § 1, effective July 15, 2002; 2002, ch. 329, § 1, effective July 15, 2002; 2004, ch. 122, § 1, effective July 13, 2004; 2005, ch. 99, § 607, effective June 20, 2005; 2008, ch. 75, § 1, effective July 15, 2008; 2009, ch. 33, § 5, effective March 20, 2009; 2016 ch. 43, § 1, effective April 6, 2016; 2018 ch. 195, § 1, effective July 14, 2018.

Compiler’s Notes.

The Fair Labor Standards Act, referred to in subsections (2)(c) and (4), is compiled as 29 USCS § 201 et seq.

Legislative Research Commission Notes.

(3/25/19). 2019 Ky. Acts ch. 67, sec. 1, amended KRS 95A.210 to add new subsections and to change the internal numbering of others. KRS 337.285(12) cites KRS 95A.210 (3). It is clear from the context that in this section KRS 95A.210(3) should have been changed to KRS 95A.210(5) to conform. This error has been corrected in codification under the authority of KRS 7.136 .

NOTES TO DECISIONS

1.Constitutionality.

The fact that municipalities were required to pay their fire fighters overtime pay did not per se constitute the exercise of absolute or arbitrary power over the municipalities in violation of Const., § 2. Kentucky Municipal League v. Commonwealth, 530 S.W.2d 198, 1975 Ky. LEXIS 48 ( Ky. 1975 ).

2.Application.

Though the provision for overtime payments was invalid as to municipal employees who are engaged in work of purely local concern, under the theory of severability the provision remained applicable to fire fighters engaged in work of statewide concern. Kentucky Municipal League v. Commonwealth, 530 S.W.2d 198, 1975 Ky. LEXIS 48 ( Ky. 1975 ).

Ordinances fixing the hourly pay scale for firemen which do not conform with the requirements of this section were not invalid where they were adopted prior to the effective date of this section. Snyder v. Owensboro, 555 S.W.2d 246, 1977 Ky. LEXIS 499 ( Ky. 1977 ).

Where an ordinance changing from a monthly salary to an hourly rate of pay for fire fighters was adopted and became effective prior to the effective date of this section, this section would not be given retroactive effect to invalidate the ordinance. Miller v. Lexington-Fayette Urban County Government, 557 S.W.2d 430, 1977 Ky. App. LEXIS 835 (Ky. Ct. App. 1977).

District fire chiefs were not employees under KRS 337.285 since the city’s actual practices of requiring scheduled shifts, allowing shift trades, changing pay when the time changed, requiring timesheets, requiring approval before vacation or compensatory time could be used, allowing compensatory time, and, in one instance, disciplining a district fire chief for an unrelated administrative violation by the loss of two vacation days, were insufficient to show that the chiefs were employees rather than supervisory, salaried personnel. City of Louisville, Div. of Fire v. Fire Serv. Managers Ass'n by & Through Kaelin, 212 S.W.3d 89, 2006 Ky. LEXIS 296 ( Ky. 2006 ).

Liability for overtime pay was established under KRS 337.285 and, thus, the state supreme court did not have to determine whether the government employers were acting as agents of the state when they participated on the Professional Firefighters Foundation Program Fund. Even assuming that to be true, the directives of KRS Chapter 95A and KRS 337.285 showed clearly that the General Assembly had waived any governmental or sovereign immunity that such status might have otherwise bestowed on the government employers with respect to liability for paying overtime wages to local firefighters involved in improving their education and training. Madison County Fiscal Court v. Ky. Labor Cabinet, 352 S.W.3d 572, 2011 Ky. LEXIS 114 ( Ky. 2011 ).

Defendant was entitled to partial summary judgment on plaintiffs’ claims for overtime wages under the Fair Labor Standards Act, 29 U.S.C.S. § 207, and the Kentucky Wages and Hours Act (KWHA), KRS 337.285(1), because plaintiffs were employed in a “bona fide administrative capacity,” and fell within the overtime wage exemption of 29 U.S.C.S. § 213(a)(1), and outside of the scope of “employee” under KRS 337.010(2)(a)(2). Because it appeared that the protections of KRS 337.385(1) and 337.055 might not apply to plaintiffs because they fell outside of the scope of “employee” as defined in the KWHA, the court reserved ruling on plaintiffs’ claims for unpaid wages and liquidated damages under KRS 337.385(1) and 337.055 and requested briefing on the issue. Fox v. Lovas, 2012 U.S. Dist. LEXIS 27908 (W.D. Ky. Mar. 1, 2012).

3.Wage Rates.

Under this section, the proper formula for determining wage rates for firemen was to divide the number of hours worked in a week into the week’s pay to establish the hourly wage rate, and then add to that the figure obtained by multiplying one and one-half (11/2) times the number of overtime hours per week in order to determine total weekly pay. Snyder v. Owensboro, 555 S.W.2d 246, 1977 Ky. LEXIS 499 ( Ky. 1977 ).

Federal case law provided guidance on applying the salary basis test under KRS 337.285 where the salary basis test for bona fide executive employees of the Fair Labor Standards Act, 29 USCS § 201 et seq., was substantially similar to those in KRS ch. 337 and the relevant administrative regulations. City of Louisville, Div. of Fire v. Fire Serv. Managers Ass'n by & Through Kaelin, 212 S.W.3d 89, 2006 Ky. LEXIS 296 ( Ky. 2006 ).

Even though included in the firefighters’ total wages, a clothing allowance was not remuneration for purposes of calculating overtime pay because it was not compensation for services they performed for the city, but a payment by which they were reimbursed for having to purchase their own work-clothing. Just as the disbursement of clothing would not be an element of remuneration, neither are payments which reimburse the firefighters for purchasing clothing on their own. Commonwealth v. Hasken, 265 S.W.3d 215, 2007 Ky. App. LEXIS 244 (Ky. Ct. App. 2007).

4.Time “on call.”

Where policemen were ordered to be able to be reached by telephone, and to report on duty within 30 minutes thereafter, 24 hours a day, they were not to be paid for “on call” time since policemen are normally considered to be under a duty to respond at any time; although it was error for the court to deny a jury trial on this issue, such error was harmless since a directed verdict for the county would have been proper. Spellman v. Fiscal Court of Jefferson County, 574 S.W.2d 342, 1978 Ky. App. LEXIS 623 (Ky. Ct. App. 1978).

5.Collective Bargaining Agreement.

Provision in collective bargaining agreement between city and fraternal order of police, to the effect that for overtime in excess of 30 minutes the member should be paid the overtime rate for a full hour, and that overtime of less than 30 minutes should not be paid, was not invalid under this section or KRS 337.385(1). Orms v. Louisville, 686 S.W.2d 464, 1984 Ky. App. LEXIS 612 (Ky. Ct. App. 1984).

The 15-minute “roll call” prior to the beginning of each firefighter’s shift was not compensable, where the firefighters’ employment agreement, which was the result of careful, good faith bargaining, set out the requirement of “roll call” attendance, but made no mention of compensation for this extra-shift labor, and the union had accepted the practice by many years of acquiescence to the lack of payment for “roll call.” Louisville v. Gnagie, 716 S.W.2d 236, 1986 Ky. LEXIS 287 ( Ky. 1986 ).

Secretary of the Kentucky Department of Labor misinterpreted 803 KAR 1:060 by ruling that 2,912 hours (the average hours firefighters worked per year) was the proper divisor to use to calculate their overtime pay, as the collective bargaining agreement and other evidence established that the parties intended to use additional elements of pay as compensation for a 40-hour work week (2,080 hours per year). Commonwealth v. Hasken, 265 S.W.3d 215, 2007 Ky. App. LEXIS 244 (Ky. Ct. App. 2007).

6.Compensable Labor.

In a class action by firefighters against the city for compensation for the 15-minute “roll call” prior to each shift pursuant to this section, summary judgment liability was appropriate where there was no dispute that there had continued for many years a practice whereby firefighters arrived 15 minutes prior to the beginning of their shifts for “roll call,” the parties agreed that firefighters had received no compensation for this time, and the dispute was only in the legal significance of “roll call,” i.e. whether it represented compensable labor. Louisville v. Gnagie, 716 S.W.2d 236, 1986 Ky. LEXIS 287 ( Ky. 1986 ).

Warehouse employees' Kentucky Wages and Hours Act suit for compensation for mandatory time spent proceeding through a theft-prevention security screening operation was not a compensable postliminary activity because security screenings were not the warehouse employees' principal activities. Vance v. Amazon.com, Inc. (In re Amazon.com, Inc.), 852 F.3d 601, 2017 FED App. 0073P, 2017 U.S. App. LEXIS 5622 (6th Cir. Ky. 2017 ).

U.S. Supreme Court's Integrity Staffing Solutions, Inc. v. Busk ruling that post-shift security screening was a noncompensable postliminary activity applied under the Kentucky Wages and Hours Act (KWHA) because the KWHA incorporated the Portal-to-Portal Act, 29 U.S.C.S. § 251, compensation limits on preliminary and postliminary activities. Vance v. Amazon.com, Inc. (In re Amazon.com, Inc.), 852 F.3d 601, 2017 FED App. 0073P, 2017 U.S. App. LEXIS 5622 (6th Cir. Ky. 2017 ).

7.Federal Law.

This section is preempted by federal law as to regulation of interstate railroads. R.J. Corman R.R. Company/Memphis Line v. Palmore, 999 F.2d 149, 1993 U.S. App. LEXIS 17601 (6th Cir. Ky. 1993 ).

Since the Fair Labor Standards Act, 29 USCS § 201 et seq., automatically entitled all employees to overtime pay unless those employees fell under a specified exemption, and individual who were employed in a bona fide supervisory capacity were not employees at all under KRS 337.285 , this distinct structural difference rendered the federal case law regarding the allocation of the burden of proof inapposite. City of Louisville, Div. of Fire v. Fire Serv. Managers Ass'n by & Through Kaelin, 212 S.W.3d 89, 2006 Ky. LEXIS 296 ( Ky. 2006 ).

8.Sovereign Immunity.

Where county employees alleged that the county violated the Fair Labor Standards Act, 29 USCS § 201 et seq., and the Kentucky Wages and Hours Act, KRS ch. 37, their state law claims were barred by sovereign immunity, which was not waived by provisions in KRS 337.285 , 337.385 . Crawford v. Lexington-Fayette Urban County Gov't, 2007 U.S. Dist. LEXIS 2567 (E.D. Ky. Jan. 9, 2007).

In firefighters’ action seeking overtime wages and related benefits, county was entitled to sovereign immunity because KRS 337.285 of the Kentucky Wage and Hour Act did not expressly or by implication waive immunity; in addition, county ordinances and policies did not constitute a “contract” for which immunity was waived. Blankenship v. Lexington-Fayette Urban County Gov't, 2010 Ky. App. LEXIS 145 (Ky. Ct. App. Aug. 20, 2010).

Sovereign immunity was waived in an action alleging overtime wage violations under KRS 337.285 that was brought against a county government by currently employed, retired, and formerly employed firefighters, and a trial court thus erred in dismissing the action based upon that defense, because a statute directing a governmental unit to pay its employees in a prescribed manner necessarily and overwhelmingly implied a waiver of immunity from liability to the employees for nonpayment. Blankenship v. Lexington-Fayette Urban Cnty. Gov't, 2012 Ky. App. Unpub. LEXIS 1069 (Ky. Ct. App. May 4, 2012), vacated, 2015 Ky. LEXIS 1720 (Ky. May 6, 2015).

9.Statute of Limitations.

Where firefighters challenged a city’s calculations of their overtime pay, the five-year limitations period of KRS 413.120 was not equitably tolled by operation of KRS 413.190(2), as there was no evidence the city concealed its overtime pay calculations or obstructed the prosecution of firefighters’ claims regarding overtime pay. Commonwealth v. Hasken, 265 S.W.3d 215, 2007 Ky. App. LEXIS 244 (Ky. Ct. App. 2007).

10.Overtime.

Municipal order which revised an overtime policy for city employees did not allow appellee city police officer to claim overtime after working 40 hours and claiming two additional hours of annual leave time; the order did not violate KRS 95.495(1) as the plain language of the statute only permitted overtime payment for any work performed. City of Bowling Green v. Helbig, 399 S.W.3d 445, 2012 Ky. App. LEXIS 195 (Ky. Ct. App. 2012).

Employee was not entitled to liquidated damages for an employer's failure to pay overtime because the employer acted in good faith by giving the employee extra work to assist the employee and not to thwart underlying public policy. Starr v. Louisville Graphite, Inc., 2016 Ky. App. LEXIS 58 (Ky. Ct. App. Apr. 22, 2016).

Cited:

McMichael v. Falls City Towing Co., 199 F. Supp. 2d 632, 2002 U.S. Dist. LEXIS 8170 (W.D. Ky. 2002 ).

Opinions of Attorney General.

Overtime in one workweek cannot be credited to undertime in a subsequent workweek. OAG 74-393 .

Since the federal basic minimum wage is higher than the state minimum wage under KRS 337.275 , the federal law applies to state and local employees, but since the state law has a lower workweek before overtime provisions apply to state and local employees, including policemen, firemen and security officers under this section, the state law as to overtime is applicable and, pursuant to KRS 337.050 , state and local employees who work seven (7) days in any one workweek must be paid time and a half for the seventh day. OAG 74-532 .

Overtime payment is required for time spent over 40 hours per workweek and policemen, who are not excluded employees, cannot be given compensable time as a credit against overtime. OAG 74-593 .

An individual may be scheduled to work a ten (10) hour day four (4) days a week to make his 40 hours. OAG 74-593 .

The Kentucky minimum wage law places no restrictions or requirements on holidays or weekends, but it affects the “seventh day law” (KRS 337.050 ), and if a county employee, such as a policeman, works seven (7) consecutive days during his workweek, he has to be paid time and one half (1/2) his regular rate of pay on the seventh day of that workweek unless his total hours are 40 or less during the workweek. OAG 74-593 .

The Kentucky minimum wage law merely sets the minimum wage for the first 40 hours of work per week and does not preclude an employer from employing his employees beyond 40 hours per week or eight (8) hours per day. OAG 74-593 .

If a city chief of police on 24-hour call seven (7) days a week and receiving $400 per month plus the use of a city apartment meets the definition of an executive, administrative, supervisory or professional employee, he should be excluded from the Kentucky minimum wage law, and by implication from the overtime provisions, but if he does not meet the definition, then he must be paid minimum wages and be covered for overtime. OAG 74-602 .

If employees exchange hours of work and it results in excess hours for a particular employee, that employee must be paid time and a half over 40 hours in any one (1) workweek, as the state minimum wage law does not authorize the payment of minimum wages to positions, but to persons. OAG 74-694 .

Both the state and federal minimum wage laws require proper record keeping, and if a city were to report that two (2) firemen each worked 40 hours, when in fact they had exchanged hours of work and one (1) fireman worked 80 hours while the other had not worked, then the report would be in violation of proper record keeping. OAG 74-694 .

Under KRS 337.010 all automobile dealerships which do $95,000 gross annual sales, exclusive of excise taxes, are covered under the state minimum wage law. Automobile salesmen are excluded both from the state minimum wage and the overtime section of the law. Parts managers are covered by the minimum wage but are excluded from the overtime provisions, and mechanics are neither excluded from the minimum wage nor the overtime provisions and must be paid time and a half their regular rate of pay for all hours worked in excess of 40 hours per workweek. OAG 74-777 .

Tobacco workers employed not by farmers but by warehousemen and engaged in stripping, sorting, grading, buying, stemming, redrying, packing and storing tobacco are not “employed in agriculture” within the exemption provision of KRS 337.010 and are entitled to the minimum wage and overtime provisions of KRS 337.275 and this section. OAG 75-55 .

Policemen required to attend special training school should be considered on working time and paid at that rate, and only where the criteria of Department of Labor regulation 803 KAR 1:065(6)(1) are present would the attendance not be considered working time. OAG 75-216 .

Based upon the state minimum wage law and the regulations pertaining thereto, it would be illegal to allow officers covered by the overtime provisions to receive time off or compensatory time instead of wages for overtime hours. OAG 75-216 .

If a police officer is required to spend time in court, it is considered working time, and whether he receives time and a half for such time will depend upon whether his total hours in the specific workweek in which the court time occurred were over 40 hours. OAG 75-216 .

Arrest fees of policemen must be included in their total compensation in order to arrive at a rate upon which overtime compensation can be computed. OAG 75-371 .

Assuming the state minimum wage law is constitutional for public officers and is ratified by the Court of Appeals in a pending case, a city may not require its police officers to work 48 hours a week without paying overtime for the hours worked in excess of 40 and may not circumvent the law by juggling straight time and overtime rates to achieve a lesser gross monthly pay. OAG 75-607 .

An election officer is not covered by this section as he is not an “employee” within the meaning of KRS 337.010 . OAG 75-664 .

Any police officer required to work over 40 hours during any workweek would be entitled to overtime pay. OAG 76-287 .

A police officer’s hourly wage rate and what he receives through the city’s participation in the K.L.E.F.P.F. program must both be included in the officers total compensation in order to arrive at a rate upon which overtime compensation can be computed. OAG 76-361 .

In view of the fact that by extensive regulation of the trucking industry Congress has pre-empted the area of maximum hours and overtime pay for those trucking employees subject to the Motor Carriers Act, this section cannot be applied to motor carrier employees exempted by the Federal Fair Labor Standards Act. OAG 77-65 .

A county official who works employees over a 40-hour week where said employees are paid a monthly salary can be held liable to pay the overtime rate and liquidated damages where applicable. The county would be the employer where a county employee is involved or where an employee’s salary, even though he is a deputy of a constitutional officer, is funded out of the county treasury; thus, the “employer” liability will follow the usual source of funding of the affected employee’s compensation. OAG 77-504 .

Where time and a half payment for overtime is involved, such money will come from the same source that the ordinary salary comes from; if a deputy jailer is paid wholly out of the fees of the jailer, then the jailer would be responsible for seeing that the time and a half payments were paid out of his fees, but if the deputy jailer was compensated wholly out of the county treasury, then the time and a half pay would have to come out of the county treasury. OAG 78-565 .

If police officers attend a job related training session which is held in addition to their required workweek, they must be compensated for the hours put forth at the training session, which would be considered working time, pursuant to the overtime pay provisions of this section and they could not receive compensatory time instead of wages for overtime hours. OAG 79-206 .

There are no provisions in the minimum wage and overtime pay provisions allowing police officers to receive time off work or compensatory time instead of wages for overtime hours. OAG 79-296 .

This state’s minimum wage and overtime pay provisions do not exclude police officers unless they are classified as executive, administrative, professional or supervisory personnel and ordinary police officers do not fall within this exclusion. OAG 79-296 .

Employees of the county clerk, jailer and sheriff must be paid overtime, at the rate of time and a half, when they work longer than a 40 hour week, and such overtime payment must be paid from the “75% fund” set up by Const., § 106. OAG 81-123 .

Deputy sheriffs are subject to time and a half for employment in excess of 40 hours. OAG 82-118 .

A city may give its police officers a one-hour lunch period and still require that those police officers work an eight-hour shift. Although police officers cannot be required to work more than eight (8) hours per day, except in an emergency, the lunch break is not usually considered worktime. OAG 82-143 .

A county clerk had the authority to authorize his deputies to work in excess of a 40-hour workweek, where it was reasonably necessary to carry out his statutory duties. This section mandates the payment of overtime (time and a half) where the deputy works longer than a 40-hour week and the overtime payment must come from the same source that the regular salary comes from; in the case of the county clerk, such payment would come from the fees of the office, or from the county treasury, or from a combination of both sources. OAG 82-478 .

Acts 1982, ch. 385 does not require that jail employees’ benefits be the same as benefits received by other county employees. Jail employees are subject to the state minimum wage law which requires that certain employees, not excepted, be paid time and a half for hours worked in excess of 40 hours per week. OAG 82-505 .

KRS 337.285 , providing for time and a half for employment in excess of 40 hours, applies to the jailer as employer and the jail matron as an employee of the jailer; however, if the jail matron is the wife of the jailer, then under KRS 337.010(2)(a)(vi), (now subdivision (2)(a) 6.) such a spouse of the employer would be exempt from the operation of KRS Chapter 337 since, under that subsection a spouse of the employer is expressly exempt. OAG 82-625 .

Since the jailer has the direct supervision over his deputies, including the matron, he has the direct responsibility of determining precisely the necessary work schedule and must use good judgment in authorizing overtime. OAG 82-625 .

If a county jailer employs a matron who is of no relation to the jailer, he must carefully determine whether the time in excess of a 40 hour week is “actually necessary”; where the overtime is not shown to be actually necessary in the exercise of the deputy’s or matron’s public function, such overtime would not be valid against the “jail” budget or the general county budget. Where overtime is not shown to be in the “public good,” this is equivalent to saying that the extra time is not necessary. OAG 82-625 .

Where it is shown that a jailer is guilty of mismanagement in creating an “overtime” situation, he will be liable on his bond under KRS 71.010 ; such jailer, where he illegally creates an overtime situation, would finally be personally responsible to the employee for the overtime. OAG 82-625 .

Where this section (time and a half) is properly applied (extra time is necessary), then if the “jail budget” part of the county budget does not contain the money to pay for such overtime, the fiscal court is responsible for paying it, since the fiscal court has the overall duty of maintaining a county jail operation regardless of whether it admits an employer-employee relationship or not. In such situation the “employer” is still the jailer under KRS Chapter 337. OAG 82-625 .

Prior to July 1, 1982, the effective date of the 1982 amendment to KRS 441.005 , relating to definition of “county jail,” the jailer, and, if necessary (where jailer had no funds for that purpose) the fiscal court, was responsible for providing for any overtime worked by the deputy jailers. OAG 82-626 .

This section (overtime pay) applied to jail deputies and matrons prior to the enactment of Acts 1982, ch. 385, except where the deputy or matron was the parent, spouse, child or other member of the jailer’s immediate family. OAG 82-626 .

Prior to the enactment of Acts 1982, ch. 385, where the time in excess of 40 hours was authorized by the jailer, the time and one half (1/2) payment was a claim against the jailer’s fees; where he had no fees available, the county treasurer, where a properly budgeted sum was available, was answerable to such payment for overtime, under the concept that the county jail was a county institution, even though the jailer was immediately in charge of the jail, and the fiscal court was ultimately or derivatively responsible for the effective operation of that county institution. OAG 82-626 .

On and after July 1, 1982, the effective date of Acts 1982, ch. 385, the county treasurer at the discretion of the jailer is responsible for payment of overtime to the deputy jailer and matron out of the jail budget part of the county budget, assuming that the overtime is necessary and that such an expenditure is within an authorized budget category, as covered in KRS 441.008(2) (now 441.235(2)); if not, then the fiscal court will have to pay it out where such funds are available. OAG 82-626 .

The determination of whether overtime is actually necessary is a responsibility of the jailer and lies within his sound discretion. OAG 82-626 .

The jailer should authorize work in excess of 40 hours (per week) only where necessary; where it is shown that a jailer is guilty of mismanagement in authorizing an “overtime situation,” he would be personally liable, and liable on his bond for the payment of the overtime to the deputy or matron and the claim would not be payable from the jail fund or county treasury. Where the overtime is necessary, the claim for overtime must now be paid from the jail fund, or from the county treasury generally, where there are no jail budget funds to pay it. OAG 82-626 .

Overtime payments are not wage fixations or adjustments in terms of KRS 64.530 governing compensation of county officers; overtime payments are simply calculated at one and one-half (11/2) of the regular salary rate established by fiscal court. OAG 84-183 .

The fiscal court has no authority to require its approval for overtime work of deputies of local constitutional officers where the deputy’s salary is paid out of the sheriff’s fees. OAG 84-183 .

If it appeared that overtime work by sheriff’s deputy was reasonably necessary to carry out the sheriff’s duties, then the fiscal court must give the sheriff credit in the yearly settlement for the amount of overtime pay the sheriff effected from the funds of his office; the overtime should normally be paid out of the salary source, which was the county treasury for the particular deputy sheriff. If the fiscal court refuses to credit the sheriff’s payment of overtime, assuming that the overtime work was reasonably necessary, the fiscal court would be acting arbitrarily, contrary to Const., § 2. OAG 84-183 .

County may continue to allow employees to work in excess of 40 hours per week, but, in compliance with 29 USCS 207(a) (1) and this section, the county must compensate employees who do so at the rate of one and one half (11/2) times the hourly wage rate at which the individuals are employed, and, in compliance with this section, the County must compensate the employees in wages, not in compensatory time off. OAG 91-187 .

Research References and Practice Aids

Cross-References.

Liability of employer for payment of less than wages and overtime compensation to which employee is entitled, KRS 337.385 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Work and Labor Provisions Under KRS 337, § 280.00.

337.290. Revision of wage order. [Repealed.]

Compiler’s Notes.

This section (4767a-10) was repealed by Acts 1974, ch. 391, § 14.

337.295. Administrative regulations.

Regulations issued by the commissioner under KRS 337.275 to 337.325 , 337.345 , and 337.385 to 337.405 may include, but are not limited to, regulations defining and governing bona fide executive, administrative, or professional employees; regulations governing learners, apprentices, workers with disabilities, sheltered workshop employees, and students, regulations governing outside salesmen; bonuses; part-time rates; special pay for special or extra work; allowances as part of the wage rates applicable under KRS 337.275 for board, lodging, and gratuities; other facilities or services furnished by employers and used by employees; and other special items usual in a particular employer-employee relationship.

History. Enact. Acts 1974, ch. 391, § 4; 1994, ch. 405, § 86, effective July 15, 1994; 2010, ch. 24, § 1730, effective July 15, 2010.

NOTES TO DECISIONS

1.Constitutionality.

This section, in giving the secretary of labor the power to issue regulations defining and governing provisions for minimum wages and overtime payments, did not constitute an invalid delegation of legislative authority under Const., §§ 27 and 28. Kentucky Municipal League v. Commonwealth, 530 S.W.2d 198, 1975 Ky. LEXIS 48 ( Ky. 1975 ).

Opinions of Attorney General.

Regulation LAB-6 defines an individual employed in a bona fide executive capacity. OAG 74-602 .

337.300. Revision of administrative regulations. [Repealed.]

Compiler’s Notes.

This section (4767a-11) was repealed by Acts 1974, ch. 391, § 14.

337.310. Appeal of commissioner’s order or decision.

All orders or decisions of the commissioner issued or made under KRS 337.020 to 337.405 may be appealed, and upon appeal an administrative hearing shall be conducted in accordance with KRS Chapter 13B.

History. 4767a-12: amend. Acts 1974, ch. 391, § 5; 1978, ch. 340, § 3, effective June 17, 1978; 1996, ch. 318, § 313, effective July 15, 1996; 2010, ch. 24, § 1731, effective July 15, 2010.

NOTES TO DECISIONS

1.Limited Review.

Review is limited to a determination of whether or not the finding of the Secretary is supported by what is variously described as substantial evidence, evidence of substance, or evidence of probative value. Middlekamp v. Willis, 267 S.W.2d 924, 1953 Ky. LEXIS 1228 (Ky. Ct. App. 1953).

2.Jurisdiction.

The jurisdiction of the Circuit Court attaches to wage concerns only after the facts have been decided by the commissioner. Review by the Circuit Court is restricted to certain concerns delineated not only by this section, but also by 803 KAR 1:035(9, 10). Early v. Campbell County Fiscal Court, 690 S.W.2d 398, 1985 Ky. App. LEXIS 510 (Ky. Ct. App. 1985), overruled, Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 2005 Ky. LEXIS 234 ( Ky. 2005 ).

The Commissioner (now Secretary) of Labor has original jurisdiction only in those wage and hour disputes in which the duty to provide the benefits sought by the claimant derives solely from the Workers’ Compensation Act, not from an agreement between the parties as to the terms and conditions of employment, and in those situations in which the parties agree to have their disputes resolved by the administrative route and the parties thereby waive their right to seek a judicial remedy. Noel v. Season-Sash, Inc., 722 S.W.2d 901, 1986 Ky. App. LEXIS 1498 (Ky. Ct. App. 1986), overruled in part, Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 2005 Ky. LEXIS 234 ( Ky. 2005 ).

Where the basis for the employee’s claim emanated from his contract of employment with the employer, this section did not prevent the trial court from exercising jurisdiction. Noel v. Season-Sash, Inc., 722 S.W.2d 901, 1986 Ky. App. LEXIS 1498 (Ky. Ct. App. 1986), overruled in part, Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 2005 Ky. LEXIS 234 ( Ky. 2005 ).

Cited:

Young v. Willis, 305 Ky. 201 , 203 S.W.2d 5, 1947 Ky. LEXIS 773 ( Ky. 1947 ); Hotel & Restaurant Ass’n v. Commissioner of Dep’t of Indus. Relations, 374 S.W.2d 501, 1963 Ky. LEXIS 178 ( Ky. 1963 ); McMichael v. Falls City Towing Co., 199 F. Supp. 2d 632, 2002 U.S. Dist. LEXIS 8170 (W.D. Ky. 2002 ).

Opinions of Attorney General.

Since the Secretary may decide questions arising out of any statute from KRS 337.020 to 337.405 , any subject matter contained therein would be covered, and some of these statutes deal with subjects other than minimum wages. OAG 78-697 .

337.320. Record to be kept by employer.

  1. Every employer shall keep a record of:
    1. The amount paid each pay period to each employee;
    2. The hours worked each day and each week by each employee; and
    3. Such other information as the commissioner requires.
  2. Such records shall be kept on file for at least one (1) year after entry. They shall be open to the inspection and transcript of the commissioner or the commissioner’s authorized representative at any reasonable time, and every employer shall furnish to the commissioner or the commissioner’s authorized representative on demand a sworn statement of them. The commissioner may require the statement to be upon forms prescribed or approved by him or her.

History. 4767a-13: amend. Acts 1966, ch. 158, § 6; 1974, ch. 391, § 6; 2010, ch. 24, § 1732, effective July 15, 2010.

NOTES TO DECISIONS

1.Construction.

The phrase “at least one (1) year” means the records must be kept not less than one (1) year, but it does not prohibit their retention for more than one (1) year. Cabe v. Kitchen, 415 S.W.2d 96, 1967 Ky. LEXIS 300 ( Ky. 1967 ).

2.Subpoena of Records.

Fact that records are required to be kept for at least one (1) year does not restrict the Secretary’s rights of inspection to records kept during that period, and subpoena for records in existence prior to the one-year period was valid. Cabe v. Kitchen, 415 S.W.2d 96, 1967 Ky. LEXIS 300 ( Ky. 1967 ).

Opinions of Attorney General.

Both the state and federal minimum wage laws require proper record keeping, and if a city were to report that two firemen each worked 40 hours in a week when, in fact, they had exchanged hours of work and one (1) fireman worked 80 hours while the other had not worked, then the report would be in violation of proper record keeping. OAG 74-694 .

337.325. Posting of summaries of wage and hour laws, orders, and regulations by employers.

Every employer subject to any provision of KRS 337.275 to 337.325 , 337.345 , and 337.385 to 337.405 or of any regulations or orders issued under KRS 337.295 shall keep copies of such summaries of wage and hour laws and regulations issued under KRS 337.295 posted in a conspicuous and accessible place in or about the premises wherein any person subject thereto is employed. Employers shall be furnished copies of such summaries, orders and regulations by the state on request without charge. Failure to mail such summaries to an employer shall not relieve the employer from the duty of complying with the provisions.

History. Enact. Acts 1974, ch. 391, § 8.

337.330. Employer to post minimum fair-wage order. [Repealed.]

Compiler’s Notes.

This section (4767a-14: amend. Acts 1966, ch. 158, § 7) was repealed by Acts 1974, ch. 391, § 14.

337.340. Power to question employees.

Every employer shall permit the commissioner or the commissioner’s authorized agent to question any of his or her employees in the place of employment and during work hours in respect to the wages paid to and the hours worked by such employee or other employees.

History. 4767a-15; 2010, ch. 24, § 1733, effective July 15, 2010.

NOTES TO DECISIONS

1.Hearing.

Secretary of Labor was authorized to hold hearing on employer’s liability for difference between wages paid and minimum wages. Cabe v. Eubanks, 411 S.W.2d 334, 1967 Ky. LEXIS 467 ( Ky. 1967 ).

337.345. Confidentiality of information.

Except as otherwise provided in this section, the department shall not disclose the identity of any individual filing a complaint or request for inspection under any section of this chapter, except as necessary to enforce, and then only with the specific written permission of the complainant.

Except as otherwise provided in this section, information secured from inspection of the records, or from the transcriptions thereof, or from inspection of the employer’s premises by the commissioner or the commissioner’s authorized representatives, shall be held confidential and shall not be disclosed or be open to any person except such information may be made available to:

  1. Officials concerned with, and for the purposes of administration of the laws relating to matters under the jurisdiction of the commissioner;
  2. Any agency of this or any other state, or any federal agency for the purpose of enforcing KRS 337.275 to 337.325 , 337.345 , and 337.385 to 337.405 ; and
  3. To the Wage and Hour and Public Contracts Division of the United States, Department of Labor.

History. Enact. Acts 1974, ch. 391, § 7; 1978, ch. 340, § 6, effective June 17, 1978; 2010, ch. 24, § 1734, effective July 15, 2010.

NOTES TO DECISIONS

Cited:

Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 2005 Ky. LEXIS 234 ( Ky. 2005 ).

Opinions of Attorney General.

The Labor Cabinet properly denied a request by an attorney, on behalf of a city, for a copy of a complaint filed with the cabinet initiating a prevailing wage inspection of the city, as, pursuant to this section, the cabinet was prohibited from releasing the complaint and any information identifying employees contacted by the cabinet in its investigation concerning the workplace violation. OAG 99-ORD-15.

Pursuant to KRS 337.345 , in tandem with KRS 61.878(1)(l), the Cabinet is prohibited from releasing the complaint, the name of the complainant, and any information identifying employees contacted by the Cabinet in its investigation, and information secured from inspection of the records, or from the transcriptions thereof, or from inspection of the employer’s concerning the violation. OAG 02-ORD-157.

337.350. Employer not to discriminate or pay less than fair wage. [Repealed.]

Compiler’s Notes.

This section (4767a-16: amend. Acts 1966, ch. 158, § 8) was repealed by Acts 1974, ch. 391, § 14.

337.355. Lunch period requirements.

Employers, except those subject to the Federal Railway Labor Act, shall grant their employees a reasonable period for lunch, and such time shall be as close to the middle of the employee’s scheduled work shift as possible. In no case shall an employee be required to take a lunch period sooner than three (3) hours after his work shift commences, nor more than five (5) hours from the time his work shift commences. This section shall not be construed to negate any provision of a collective bargaining agreement or mutual agreement between the employee and employer.

History. Enact. Acts 1974, ch. 333, § 1.

NOTES TO DECISIONS

Analysis

1.Class Actions.

In an employee’s complaint seeking compensation for off-the-clock work under KRS 337.385 and for a denial of meal and rest breaks in violation of KRS 337.355 and 337.365 , he failed as a matter of law to carry his burden of establishing that class action claims predominated and that the institution of a class action would be a superior and more efficient means by which to resolve the parties’ wage and hour dispute under Fed. R. Civ. P. 23(b)(3). In a class action, the court would be left with a series of mini-trials on questions of both liability and damages involving if not hundreds, at a minimum, dozens of plaintiff employees who would rightfully be required to come forward and prove that they were required by their manager(s) to work off-the-clock and/or were denied lunch and rest breaks, when such events did occur, the duration of such events, and their resulting losses, both monetary and non-monetary. England v. Advance Stores Co., 263 F.R.D. 423, 2009 U.S. Dist. LEXIS 79329 (W.D. Ky. 2009 ).

Employer was not entitled to summary judgment in an employee’s action seeking compensation for off-the-clock work and for a denial of meal and rest breaks. A private cause of action exists under KRS 446.070 for damages suffered as the result of a denial of lunch and rest breaks in violation of KRS 337.355 and 337.365 . England v. Advance Stores Co., 263 F.R.D. 423, 2009 U.S. Dist. LEXIS 79329 (W.D. Ky. 2009 ).

There was no factual basis in the record for a reasonable juror to impose punitive damages based on an employer’s fraud, malice, or oppression under KRS 411.184(2) for off-the-clock work and for a denial of meal and rest breaks in violation of KRS 337.355 and 337.365 . At most, the employee was trained by his store manager to clock out earlier in the store closing procedures than the company’s written store closing procedures required. England v. Advance Stores Co., 263 F.R.D. 423, 2009 U.S. Dist. LEXIS 79329 (W.D. Ky. 2009 ).

2.Jury Instruction.

In a case brought under the Kentucky Wages and Hours Act, a trial court did not err by instructing the jury that, for purposes of this statute, a bona fide meal break was determined by the predominant benefit test; moreover, a jury instruction properly informed the jury that it was the employees' burden to prove that they missed specific meal breaks and acted reasonably to be compensated for them. The employees' claims that they missed lunch practically every day due to the fact that they were carrying a radio did not establish with specificity a claim for compensable time. Hisle v. CorrectCare-Integrated Health, Inc., 2015 Ky. App. LEXIS 89 (Ky. Ct. App. June 12, 2015), review denied, ordered not published, 2016 Ky. LEXIS 136 (Ky. Mar. 9, 2016).

Notes to Unpublished Decisions

1.Class Actions.

Unpublished decision: Employees could not be certified as class for their state-law claims, because district court properly granted summary judgment on employees' state-law claims regarding whether they were guaranteed meal and rest breaks. Jones-Turner v. Yellow Enteprise Sys., LLC, 597 Fed. Appx. 293, 2015 FED App. 0003N, 2015 U.S. App. LEXIS 326 (6th Cir. Ky. 2015 ).

337.360. Right to collect fair wage. [Repealed.]

Compiler’s Notes.

This section (4767a-17: amend. Acts 1966, ch. 158, § 9) was repealed by Acts 1974, ch. 391, § 14.

337.365. Rest periods for employees.

No employer shall require any employee to work without a rest period of at least ten (10) minutes during each four (4) hours worked, except those employees who are under the Federal Railway Labor Act. This shall be in addition to the regularly scheduled lunch period. This section shall not apply where a collective bargaining agreement provides for a total number of minutes that are equal to or exceed ten (10) minutes accrued for each four (4) hours of work. If a collective bargaining agreement does not contain provisions allowing rest periods, employers shall allow a rest period of at least ten (10) minutes during each four (4) hours worked. No reduction in compensation shall be made for hourly or salaried employees.

History. Enact. Acts 1958, ch. 36, § 1; 1974, ch. 386, § 106; 1980, ch. 356, § 1, effective July 15, 1980; 2020 ch. 48, § 1, effective March 27, 2020.

Compiler’s Notes.

The Federal Railway Labor Act referred to in this section is compiled at 45 USCS §§ 151 et seq.

NOTES TO DECISIONS

Analysis

1.Class Actions.

In an employee’s complaint seeking compensation for off-the-clock work under KRS 337.385 and for a denial of meal and rest breaks in violation of KRS 337.355 and 337.365 , he failed as a matter of law to carry his burden of establishing that class action claims predominated and that the institution of a class action would be a superior and more efficient means by which to resolve the parties’ wage and hour dispute under Fed. R. Civ. P. 23(b)(3). In a class action, the court would be left with a series of mini-trials on questions of both liability and damages involving if not hundreds, at a minimum, dozens of plaintiff employees who would rightfully be required to come forward and prove that they were required by their manager(s) to work off-the-clock and/or were denied lunch and rest breaks, when such events did occur, the duration of such events, and their resulting losses, both monetary and non-monetary. England v. Advance Stores Co., 263 F.R.D. 423, 2009 U.S. Dist. LEXIS 79329 (W.D. Ky. 2009 ).

Employer was not entitled to summary judgment in an employee’s action seeking compensation for off-the-clock work and for a denial of meal and rest breaks. A private cause of action exists under KRS 446.070 for damages suffered as the result of a denial of lunch and rest breaks in violation of KRS 337.355 and 337.365 . England v. Advance Stores Co., 263 F.R.D. 423, 2009 U.S. Dist. LEXIS 79329 (W.D. Ky. 2009 ).

There was no factual basis in the record for a reasonable juror to impose punitive damages based on an employer’s fraud, malice, or oppression under KRS 411.184(2) for off-the-clock work and for a denial of meal and rest breaks in violation of KRS 337.355 and 337.365 . At most, the employee was trained by his store manager to clock out earlier in the store closing procedures than the company’s written store closing procedures required. England v. Advance Stores Co., 263 F.R.D. 423, 2009 U.S. Dist. LEXIS 79329 (W.D. Ky. 2009 ).

2.Rest Breaks.

Store managers’ claims that the employer prevented them from taking rest breaks was rejected where the managers provided no evidence that the employer had a policy in place that denied them the opportunity to take rest breaks, and deposition testimony revealed that the managers in fact often took breaks. Barker v. Family Dollar, Inc., 2012 U.S. Dist. LEXIS 153331 (W.D. Ky. Oct. 25, 2012).

Cited:

Noel v. Season-Sash, Inc., 722 S.W.2d 901, 1986 Ky. App. LEXIS 1498 (Ky. Ct. App. 1986), overruled in part, Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 2005 Ky. LEXIS 234 ( Ky. 2005 ), overruled in part as stated, Roby v. Midstates Indus. Group, Inc., — F. Supp. 2d —, 2006 U.S. Dist. LEXIS 78243 (W.D. Ky. Oct. 23, 2006).

Notes to Unpublished Decisions

1.Class Actions.

Unpublished decision: Employees could not be certified as class for their state-law claims, because district court properly granted summary judgment on employees' state-law claims regarding whether they were guaranteed meal and rest breaks. Jones-Turner v. Yellow Enteprise Sys., LLC, 597 Fed. Appx. 293, 2015 FED App. 0003N, 2015 U.S. App. LEXIS 326 (6th Cir. Ky. 2015 ).

Opinions of Attorney General.

A female employee who is required to work for a four-hour period must be given a ten-minute rest period some time during that four-hour period. The time when the rest period is to be granted is discretionary with the employer. The employee cannot be docked for taking the rest period and if she is docked she can exercise her remedies under the law to recover the lost wages. OAG 62-990 .

The regularly scheduled lunch period should not be considered a “work” period. OAG 70-611 .

The test of how many rest periods are required is — how many hours does the employee “work,” regardless of how the period is broken by lunch periods. OAG 70-611 .

This section, KRS 337.370 (repealed) and 337.380 (repealed) are preempted by title VII, Civil Rights Act of 1964, for those employers covered by that title where the fact situations involve a necessary conflict between state and federal law. OAG 72-461 (opinion prior to 1974 amendment withdraws OAG 69-334 ).

The term “employee” as used in this section includes certified personnel employed in public schools. OAG 76-187 .

Since this section does not apply to meal periods except to state that the rest period is in addition to a regularly scheduled lunch period, there would be no conflict between this section and an agreement between an employer and his employees concerning unpaid meal periods. OAG 77-68 .

Since Congress has assumed the regulation and control of interstate commerce, this section cannot be applied to drivers, drivers’ helpers, loaders, mechanics and other employees of interstate motor carriers who perform activities affecting the safety or operation of motor vehicles in the transportation on the public highways of passengers or property. OAG 77-335 .

The obligatory ten-minute rest period required by this section must be considered as working time; thus, where an employee actually works a minimum of three (3) hours and 50 minutes, a ten-minute rest period must be added to the hours worked, to determine the number of rest periods and wherein each one occurs. OAG 84-251 .

The rest period required by this section must be given during the four (4) hours worked and, since a ten-minute rest period is considered work time (and must be compensated therefor), an employer could not work an employee more than three (3) hours and 50 minutes without giving him a rest period since the total hours worked would be four (4) hours; otherwise, an employer could work an employee three (3) hours and 59 minutes and thus avoid the rest period. OAG 84-251 .

Research References and Practice Aids

Kentucky Law Journal.

The “Equal Rights” Amendment — Positive Panacea or Negative Nostrum?, 59 Ky. L.J. 953 (1971).

337.370. Hours of work for infant female limited. [Repealed.]

Compiler’s Notes.

This section (4866b-1: amend. Acts 1968, ch. 100, § 7) was repealed by Acts 1974, ch. 391, § 14.

337.380. Hours of work for any female limited. [Repealed.]

Compiler’s Notes.

This section (4866b-2) was repealed by Acts 1974, ch. 391, § 14.

337.385. Employer’s liability — Unpaid wages and liquidated damages — Punitive damages for forced labor or services.

  1. Except as provided in subsection (3) of this section, any employer who pays any employee less than wages and overtime compensation to which such employee is entitled under or by virtue of KRS 337.020 to 337.285 shall be liable to such employee affected for the full amount of such wages and overtime compensation, less any amount actually paid to such employee by the employer, for an additional equal amount as liquidated damages, and for costs and such reasonable attorney’s fees as may be allowed by the court.
  2. If, in any action commenced to recover such unpaid wages or liquidated damages, the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he or she had reasonable grounds for believing that his or her act or omission was not a violation of KRS 337.020 to 337.285 , the court may, in its sound discretion, award no liquidated damages, or award any amount thereof not to exceed the amount specified in this section. Any agreement between such employee and the employer to work for less than the applicable wage rate shall be no defense to such action. Such action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves.
  3. If the court finds that the employer has subjected the employee to forced labor or services as defined in KRS 529.010 , the court shall award the employee punitive damages not less than three (3) times the full amount of the wages and overtime compensation due, less any amount actually paid to such employee by the employer, and for costs and such reasonable attorney’s fees as may be allowed by the court, including interest thereon.
  4. At the written request of any employee paid less than the amount to which he or she is entitled under the provisions of KRS 337.020 to 337.285 , the commissioner may take an assignment of such wage claim in trust for the assigning employee and may bring any legal action necessary to collect such claim, and the employer shall be required to pay the costs and such reasonable attorney’s fees as may be allowed by the court. The commissioner in case of suit shall have power to join various claimants against the same employer in one (1) action.

History. Enact. Acts 1974, ch. 391, § 9; 1978, ch. 340, § 4, effective June 17, 1978; 2010, ch. 24, § 1735, effective July 15, 2010; 2013, ch. 25, § 25, effective June 25, 2013.

NOTES TO DECISIONS

Analysis

1.Jurisdiction of Court.

Although the Circuit Court is a court of competent jurisdiction as referred to in subsection (1) of this section, it is not one of original jurisdiction; thus its competent jurisdiction does not attach until after the labor commissioner (now secretary) has conducted his own proceeding, i.e. it is involved only in review, not initial resolution. Early v. Campbell County Fiscal Court, 684 S.W.2d 316, 1985 Ky. App. LEXIS 729 (Ky. Ct. App.), op. withdrawn, 690 S.W.2d 398, 1985 Ky. App. LEXIS 510 (Ky. Ct. App. 1985).

The jurisdiction of the Circuit Court attaches to wage concerns only after the facts have been decided by the commissioner (now secretary). Review by the Circuit Court is restricted to certain concerns delineated not only by KRS 337.310 , but also by 803 KAR 1:035(9, 10). Early v. Campbell County Fiscal Court, 690 S.W.2d 398, 1985 Ky. App. LEXIS 510 (Ky. Ct. App. 1985), overruled, Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 2005 Ky. LEXIS 234 ( Ky. 2005 ).

Circuit Court had original subject matter jurisdiction over a wage and hour dispute between an employer and employee pursuant to KRS 337.385 , and original jurisdiction is not vested exclusively in the Department of Labor. Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 2005 Ky. LEXIS 234 ( Ky. 2005 ).

Based on the decision in Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 2005 Ky. LEXIS 234 ( Ky. 2005 ), it was clear that KRS 337.385(1) unambiguously authorized an uncompensated or under compensated employee to sue an employer in federal district court, and thus, the district court erred when it held that it lacked jurisdiction over an employee’s wage claim. Oaks v. 3M Co., 453 F.3d 781, 2006 U.S. App. LEXIS 16170 (6th Cir. 2006).

KRS 337.385 barred proceeding to a civil lawsuit until the Kentucky Labor Commissioner had conducted his own proceeding; claims brought pursuant to KRS 337.385 had to first be raised before the Kentucky Labor Cabinet to resolve questions of fact. Because the employee failed to comply with that requirement in his wage claim, the employee could not avail himself of the benefits of KRS 337.385. Davis v. Siemens Med. Solutions USA, Inc., 399 F. Supp. 2d 785, 2005 U.S. Dist. LEXIS 27232 (W.D. Ky. 2005 ), aff'd, 279 Fed. Appx. 378, 2008 FED App. 0300N, 2008 U.S. App. LEXIS 11934 (6th Cir. Ky. 2008 ).

2.Collective Bargaining Agreement.

Provision in collective bargaining agreement between city and fraternal order of police, to the effect that for overtime in excess of 30 minutes the member should be paid the overtime rate for a full hour, and that overtime of less than 30 minutes should not be paid, was not invalid under KRS 337.285 or subsection (1) of this section. Orms v. Louisville, 686 S.W.2d 464, 1984 Ky. App. LEXIS 612 (Ky. Ct. App. 1984).

3.Damages.

Where, in exchange for the employee’s resignation, the employer agreed to pay him ninety (90) days severance pay, his accrued vacation pay, and two (2) personal days pay, but the employer paid the employee all but one (1) week of the ninety (90) days severance pay, and refused to pay him the accrued vacation pay and the two (2) personal days pay, the trial court was correct in finding that the employer acted in bad faith and was, therefore, liable to the employee for damages, attorney fees, and costs. Healthcare of Louisville v. Kiesel, 715 S.W.2d 246, 1986 Ky. App. LEXIS 1214 (Ky. Ct. App. 1986).

Former salesman’s election to plead part of his case as a common law breach of contract and fraud relieved him of the KRS 413.120(12) statute of limitations which applied to statutory claims, but also foreclosed him from the liquidated damages and attorney’s fees provided for by KRS 337.385(1). Any other result seemed unfair because it would have allowed a plaintiff to characterize his claim as a common law claim for purposes of an advantageous statute of limitations, but as a statutory claim for purposes of statutory liquidated damages and attorney’s fees. Dodd v. Dyke Indus., 2008 U.S. Dist. LEXIS 34786 (W.D. Ky. Apr. 25, 2008).

Employee was not entitled to liquidated damages for an employer's failure to pay overtime because the employer acted in good faith by giving the employee extra work to assist the employee and not to thwart underlying public policy. Starr v. Louisville Graphite, Inc., 2016 Ky. App. LEXIS 58 (Ky. Ct. App. Apr. 22, 2016).

Ky. Rev. Stat. Ann. § 337.385 (2) language “such action may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself, herself, or themselves” is plain and unambiguous; it indicates that apart from any future penalty enforcement proceedings from the Cabinet, a private cause of action lies in circuit court for recovery of Ky. Rev. Stat. Ann. § 337.385 damages. Vogt Power Int'l, Inc. v. Labor Dep't of Workplace Stds., 588 S.W.3d 169, 2019 Ky. App. LEXIS 186 (Ky. Ct. App. 2019).

4.Type of Employee.

A medical director of a medical health plan was not excepted from recovery under this section because he was “employed in a bona fide executive, administrative, supervisory or professional capacity,” under subdivision (2) of KRS 337.010 because the context “required otherwise;” it is just as unlawful to fail to pay or to withhold a part of the salary of an executive, administrative, supervisory or professional employee as it would be to do so in the case of any other type of employee. Healthcare of Louisville v. Kiesel, 715 S.W.2d 246, 1986 Ky. App. LEXIS 1214 (Ky. Ct. App. 1986).

Defendant was entitled to partial summary judgment on plaintiffs’ claims for overtime wages under the Fair Labor Standards Act, 29 U.S.C.S. § 207, and the Kentucky Wages and Hours Act (KWHA), KRS 337.285(1), because plaintiffs were employed in a “bona fide administrative capacity,” and fell within the overtime wage exemption of 29 U.S.C.S. § 213(a)(1), and outside of the scope of “employee” under KRS 337.010(2)(a)(2). Because it appeared that the protections of KRS 337.385(1) and 337.055 might not apply to plaintiffs because they fell outside of the scope of “employee” as defined in the KWHA, the court reserved ruling on plaintiffs’ claims for unpaid wages and liquidated damages under KRS 337.385(1) and 337.055 and requested briefing on the issue. Fox v. Lovas, 2012 U.S. Dist. LEXIS 27908 (W.D. Ky. Mar. 1, 2012).

5.Sovereign Immunity.

Where county employees alleged that the county violated the Fair Labor Standards Act, 29 USCS § 201 et seq., and the Kentucky Wages and Hours Act, KRS ch. 337, their state law claims were barred by sovereign immunity, which was not waived by provisions in KRS 337.285 , 337.385 . Crawford v. Lexington-Fayette Urban County Gov't, 2007 U.S. Dist. LEXIS 2567 (E.D. Ky. Jan. 9, 2007).

6.Class Actions.

Trial court erred in dismissing a server’s class action against a corporation seeking damages and attorney’s fees pursuant to KRS 337.385 , as the server did not waive his right to pursue the cause of action by accepting a settlement for tips improperly withheld by a restaurant under KRS 337.065 in an earlier administrative action, since the release signed by the server applied only to the withheld tips. Singleton v. Bravo Dev., Inc., 2007 Ky. App. LEXIS 352 (Ky. Ct. App. Sept. 21, 2007, sub. op., 2007 Ky. App. Unpub. LEXIS 509 (Ky. Ct. App. Sept. 21, 2007).

In an employee’s complaint seeking compensation for off-the-clock work under KRS 337.385 and for a denial of meal and rest breaks in violation of KRS 337.355 and 337.365 , he failed as a matter of law to carry his burden of establishing that class action claims predominated and that the institution of a class action would be a superior and more efficient means by which to resolve the parties’ wage and hour dispute under Fed. R. Civ. P. 23(b)(3). In a class action, the court would be left with a series of mini-trials on questions of both liability and damages involving if not hundreds, at a minimum, dozens of plaintiff employees who would rightfully be required to come forward and prove that they were required by their manager(s) to work off-the-clock and/or were denied lunch and rest breaks, when such events did occur, the duration of such events, and their resulting losses, both monetary and non-monetary. England v. Advance Stores Co., 263 F.R.D. 423, 2009 U.S. Dist. LEXIS 79329 (W.D. Ky. 2009 ).

Trial court properly denied an employee's motion to certify a class action for unpaid overtime because, while the statute at issue permitted actions by one or more employees, it did not permit actions to be brought on behalf of employees who were similarly situated, and the civil procedure rule for class certification could not override the statute's limitation on who could bring claims for unpaid wages where the limitation was contained in a substantive statute and was intertwined with the statute's rights and remedies. McCann v. Sullivan Univ. Sys., 2015 Ky. App. LEXIS 31 (Ky. Ct. App. Feb. 27, 2015, sub. op., 2015 Ky. App. Unpub. LEXIS 862 (Ky. Ct. App. Feb. 27, 2015).

Ky. Rev. Stat. Ann. § 337.385 prohibited suits in a representative capacity, and this prohibition was so intertwined with the Kentucky Wage and Hour Act's rights and remedies that allowing certification under Fed. R. Civ. P. 23 would violate the Rules Enabling Act. Green v. Platinum Rests. Mid-America LLC, 2015 U.S. Dist. LEXIS 171647 (W.D. Ky. Feb. 24, 2015).

State court decision that the Kentucky Wage and Hour Act could not support class-action claims did not require decertification of a class after a settlement agreement had been reached, as it was not shown that any of the class certification requirements were affected or that the Rules Enabling Act required decertification; the fairness requirement of Fed. R. Civ. P. 23 did not bar enforcement of the settlement after a post-settlement change in substantive law. Whitlock v. FSL Mgmt., LLC, 843 F.3d 1084, 2016 FED App. 5086P, 2016 U.S. App. LEXIS 22218 (6th Cir. Ky. 2016 ).

Employees could not assert a representative action against employers for violations of the Kentucky Wage and Hour Act because it was predicted that Kentucky courts would so hold. Williams v. King Bee Delivery, LLC, 199 F. Supp. 3d 1175, 2016 U.S. Dist. LEXIS 104001 (E.D. Ky. 2016 ), dismissed, 2017 U.S. Dist. LEXIS 36195 (E.D. Ky. Mar. 14, 2017).

7.De Minimis.

Employee’s claim for off-the-clock work under KRS 337.385 was not a de minimis one because the district court hesitated to judicially draft a ten-minute de minimis rule into the Kentucky Wages and Hours Act. The employer did not extinguish the claim by tendering solely the wages sought without consideration of any of the other potential forms of recovery under the Kentucky Wages and Hours Act, such as liquidated damages, attorney’s fees and cost. England v. Advance Stores Co., 263 F.R.D. 423, 2009 U.S. Dist. LEXIS 79329 (W.D. Ky. 2009 ).

8.Preemption.

Employees’ claims that their employer paid them amounts less than the wages and overtime compensation they were entitled to were preempted by 26 U.S.C.S. § 7422 because the claims were actually an attempt to recover excessive Federal Insurance Contribution Act taxes that had been withheld from their paychecks, making their suit a tax refund suit. Berera v. Mesa Med. Group, LLC, 985 F. Supp. 2d 836, 2013 U.S. Dist. LEXIS 171989 (E.D. Ky. 2013 ), dismissed, 2014 U.S. Dist. LEXIS 393 (E.D. Ky. Jan. 3, 2014), modified, aff'd, 779 F.3d 352, 2015 U.S. App. LEXIS 2581 (6th Cir. Ky. 2015 ).

9.Attorney Fees.

When an employer was found to have failed to pay an employee overtime, a trial court's award of attorney fees had to be reconsidered because the trial court did not find a lodestar figure and incorrectly reduced the fee based on the employer's good faith, which was not a reason to reduce a fee award. Starr v. Louisville Graphite, Inc., 2016 Ky. App. LEXIS 58 (Ky. Ct. App. Apr. 22, 2016).

Circuit court properly awarded a reduced amount of attorney fees to an employee rather than the amount requested because it focused on the employee's wage-and-hour counterclaim and not on the time for defending the employer's breach of contract claim, used the lodestar approach to evaluate whether the requested rate was reasonable in relation to the claim, the claim's novelty and difficulty, and the number of the hours to be attributed strictly to that claim, developed a blended rate where it could not attribute where the hours of each attorney was spent in relationship to the different parts of the case, and the amount awarded was sufficient to allow access to court for enforcement of timely payment of the employee's wages. Hunt v. N. Am. Stainless, 482 S.W.3d 796, 2016 Ky. App. LEXIS 9 (Ky. Ct. App. 2016).

Cited:

McMichael v. Falls City Towing Co., 199 F. Supp. 2d 632, 2002 U.S. Dist. LEXIS 8170 (W.D. Ky. 2002 ).

Notes to Unpublished Decisions

Analysis

1.Type of Employee.

Unpublished decision: In a given case, an otherwise exempt employee can recover under KRS 337.385 notwithstanding the limitations stated in KRS 337.010 if the context requires otherwise, but there was no evidence of a unique context that warranted an exception from the statutory provisions in the case of a professional electrical engineer who, in performing his tasks as a corporate quality manager, used his engineering skills, his analytic skills and considerable independent judgment to succeed in his work. He supervised others and made employment decisions. Whitewood v. Robert Bosch Tool Corp., 323 Fed. Appx. 397, 2009 FED App. 0227N, 2009 U.S. App. LEXIS 6227 (6th Cir. Ky. 2009 ).

4.Type of Employee.

Unpublished decision: On an employee's claim that his employer violated this statute when it failed to pay him severance and benefits, the employee did not identify context and equities of his particular case which would overcome § 337.010 's exclusion of individuals employed in a bona fide executive, administrative, supervisory, or professional capacity. Because the employee failed to show that the “context required otherwise,” the district court did not err in granting the employer summary judgment on this claim. Hackney v. Lincoln Nat'l Fire Ins. Co., 657 Fed. Appx. 563, 2016 FED App. 0592N, 2016 U.S. App. LEXIS 19989 (6th Cir. Ky. 2016 ).

Opinions of Attorney General.

A county official who works employees over a 40 hour week where said employees are paid a monthly salary can be held liable for paying the overtime rate and liquidated damages where applicable. The county would be the employer where a county employee is involved or where an employee’s salary, even though he is a deputy of a constitutional officer, is funded out of the county treasury; thus, the “employer” liability will follow the usual source of funding of the affected employee’s compensation. OAG 77-504 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Work and Labor Provisions Under KRS 337, § 280.00.

337.390. Time book to be kept by employers of females. [Repealed.]

Compiler’s Notes.

This section (4866b-5) was repealed by Acts 1974, ch. 391, § 14.

337.395. Effect on existing standards.

Any standards relating to minimum wages, maximum hours, overtime compensation, or other working conditions, in effect under any other law of this state which are more favorable to employees than standards applicable hereunder shall not be deemed to be amended, rescinded or otherwise affected by KRS 337.275 to 337.325 , 337.345 , and 337.385 to 337.405 but shall continue in full force and effect until they are specifically superseded by standards more favorable to such employees by operation of or in accordance with KRS 337.275 to 337.325 , 337.345 , and 337.385 to 337.405 or regulations issued thereunder.

History. Enact. Acts 1974, ch. 391, § 10.

NOTES TO DECISIONS

1.Generally.

United States District Court for the Western District of Kentucky refused to enforce former KRS 337.380 (repealed 1974) under KRS 337.395 where the 1974 Wage and Hour Act expressly repealed, not amended or rescinded, the female maximum hour law, if the court continued to enforce a statute that the General Assembly explicitly repealed, the court would have effectively undermined legislative intent and invaded constitutionally prescribed boundaries between the judicial and legislative branches of the government, and the statute limiting female work hours was outdated, discriminatory on its face and likely a violation of the Equal Protection Clauses of both the United States Constitution and the Kentucky Constitution. Barker v. Family Dollar, Inc., 2012 U.S. Dist. LEXIS 153331 (W.D. Ky. Oct. 25, 2012).

337.400. Employers of females to post law and notice of hours of work. [Repealed.]

Compiler’s Notes.

This section (4866b-6) was repealed by Acts 1974, ch. 391, § 14.

337.405. Effect on bargaining rights.

Nothing in KRS 337.275 to 337.325 , 337.345 , and 337.385 to 337.405 shall be deemed to interfere with, impede, or in any way diminish the right of employees to bargain collectively through representatives of their own choosing in order to establish wages in excess of the applicable minimum or to establish hours of work shorter than the applicable minimum under KRS 337.275 and 337.285 .

History. Enact. Acts 1974, ch. 391, § 11.

337.410. Department to enforce law. [Repealed.]

Compiler’s Notes.

This section (1599c-16) was repealed by Acts 1974, ch. 391, § 14.

Court-Ordered Appearance

337.415. Court-ordered appearance by employee not grounds for dismissal by employer — Penalty for unlawful discharge.

No employer shall discharge an employee for taking time off, as required by law, to appear in any duly constituted local, state or federal court or duly constituted administrative tribunal or hearing if such employee, prior to taking such time off, gives notice to the employer that he is required to serve by presenting a copy of the court or administrative certificate to said employer. The penalty for such unlawful discharge may include, but is not limited to, reemployment, assessment of court costs, appropriate attorney fees, and back pay as ordered by a court of competent jurisdiction.

History. Enact. Acts 1980, ch. 190, § 1, effective July 15, 1980.

Wage Discrimination Because of Sex

337.420. Definitions.

  1. “Employee” means any individual employed by any employer, including but not limited to individuals employed by the state or any of its political subdivisions, instrumentalities, or instrumentalities of political subdivisions.
  2. “Employer” means a person who has two (2) or more employees within the state in each of twenty (20) or more calendar weeks in the current or preceding calendar year and an agent of such a person.
  3. “Wage rate” means all compensation for employment, including payment in kind and amounts paid by employers for employee benefits, as defined by the commissioner in regulations issued under KRS 337.420 to 337.433 and 337.990(11).
  4. “Employ” includes to suffer or permit to work.
  5. “Occupation” includes any industry, trade, business, or branch thereof, or any employment or class of employment.
  6. “Commissioner” means the commissioner of the Department of Workplace Standards under the direction and supervision of the secretary of the Labor Cabinet.
  7. “Person” includes one (1) or more individuals, partnerships, corporations, legal representatives, trustees, trustees in bankruptcy, or voluntary associations.

History. Enact. Acts 1966, ch. 114, § 1; 1980, ch. 230, § 1, effective July 15, 1980; 1984, ch. 414, § 13, effective July 13, 1984; 1990, ch. 42, § 5, effective July 13, 1990; 2010, ch. 24, § 1736, effective July 15, 2010; 2017 ch. 3, § 7, effective January 9, 2017.

NOTES TO DECISIONS

Debtor’s countercomplaint against her former employer failed to state a claim that the employer had violated the Kentucky Equal Pay Law because there were no facts pled as to when, where, why, or how the employer discriminated in its payment of wages and compensation to the debtor. Credit Bureau Systems, Inc. v. Elam (In re Elam), 2019 Bankr. LEXIS 3220 (Bankr. E.D. Tenn. Oct. 10, 2019).

337.423. Discrimination prohibited.

  1. No employer shall discriminate between employees in the same establishment on the basis of sex, by paying wages to any employee in any occupation in this state at a rate less than the rate at which he or she pays any employee of the opposite sex for comparable work on jobs which have comparable requirements relating to skill, effort and responsibility. Differentials which are paid pursuant to established seniority systems or merit increase systems, which do not discriminate on the basis of sex, shall not be included within this prohibition. Nothing in KRS 337.420 to 337.433 and 337.990(11) shall apply to any employer who is subject to the federal Fair Labor Standards Act of 1938, as amended, when that act imposes comparable or greater requirements than contained in KRS 337.420 to 337.433 and 337.990(11) and when the employer files with the commissioner of the Department of Workplace Standards a statement that the employer is covered by the federal Fair Labor Standards Act of 1938, as amended.
  2. An employer who is paying a wage differential in violation of KRS 337.420 to 337.433 and 337.990(11) shall not, in order to comply with it, reduce the wage rates of any employee.
  3. No person shall cause or attempt to cause an employer to discriminate against any employee in violation of KRS 337.420 to 337.433 and 337.990(11).
  4. No employer may discharge or discriminate against any employee by reason of any action taken by such employee to invoke or assist in any manner the enforcement of KRS 337.420 to 337.433 and 337.990(11).

History. Enact. Acts 1966, ch. 114, § 2; 1984, ch. 414, § 14, effective July 13, 1984; 1990, ch. 42, § 6, effective July 13, 1990; 2010, ch. 24, § 1737, effective July 15, 2010; 2017 ch. 3, § 8, effective January 9, 2017.

Compiler’s Notes.

The Fair Labor Standards Act of 1938, referred to in subsection (1), is compiled as 29 USCS § 201 et seq.

NOTES TO DECISIONS

1.Evidence.

Employer’s motion for summary judgment against an employee’s claims for damages for alleged violations of KRS 344.040 and KRS 337.423 was properly granted, as: (1) there was not sufficient prima facie evidence to support the constructive discharge, gender discrimination, and retaliation claims; (2) an equal pay claim was time-barred; and (3) a sexual orientation claim was filed in the wrong forum, since the county human rights commission had jurisdiction over that claim. Crockett v. CHA HMO, Inc., 2008 Ky. App. LEXIS 103 (Ky. Ct. App. Apr. 4, 2008), review denied, ordered not published, 2009 Ky. LEXIS 262 (Ky. May 13, 2009).

2.Filing Cause of Action.

Under KRS 337.423 , a cause of action cannot occur after the final date of employment, when an employee stops accruing wages. Crockett v. CHA HMO, Inc., 2008 Ky. App. LEXIS 103 (Ky. Ct. App. Apr. 4, 2008), review denied, ordered not published, 2009 Ky. LEXIS 262 (Ky. May 13, 2009).

Cited:

Mitchell v. Mid-Continent Spring Co., 466 F.2d 24, 1972 U.S. App. LEXIS 7954 (6th Cir. 1972), cert. denied, 410 U.S. 928, 93 S. Ct. 1363, 35 L. Ed. 2d 589, 1973 U.S. LEXIS 3345 (1973).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Work and Labor Provisions Under KRS 337, § 280.00.

ALR

Application of state law to sex discrimination in employment. 87 A.L.R.3d 93.

Construction and application of provisions of Equal Pay Act of 1963 (29 USCS § 206(d)) prohibiting wage discrimination on basis of sex. 7 A.L.R. Fed. 707.

Comparable worth as applied to sex wage claims. 62 A.L.R. Fed. 707.

337.425. Powers of commissioner.

  1. For this purpose, the commissioner, or the commissioner’s authorized representative, may enter the place of employment of any employer to inspect and copy payrolls and other employment records, to compare character of work and operations on which persons employed by him or her are engaged, to question such persons, and to obtain other information necessary to the administration and enforcement of KRS 337.420 to 337.433 and 337.990(11).
  2. The commissioner or the commissioner’s authorized representative may examine witnesses under oath, and require by subpoena the attendance and testimony of witnesses and the production of any documentary evidence relating to the subject matter of any investigation undertaken pursuant to KRS 337.420 to 337.433 and 337.990(11).If a person fails to attend, testify or produce documents under or in response to a subpoena, the Circuit Court in the judicial circuit where the hearing is being held, on application of the commissioner or the commissioner’s representative, may issue an order requiring the person to appear before the commissioner or the commissioner’s authorized representative, or to produce documentary evidence, and any failure to obey the order of the court may be punished by the court as contempt.
  3. The commissioner may endeavor to eliminate pay practices unlawful under KRS 337.420 to 337.433 and 337.990(11) by informal methods of conference, conciliation and persuasion, and supervise the payment of wages owing to any employee under KRS 337.420 to 337.433 and 337.990(11).
  4. The commissioner may issue regulations not inconsistent with the purpose of KRS 337.420 to 337.433 and 337.990(11), necessary or appropriate to carry out its provisions.

History. Enact. Acts 1966, ch. 114, § 3; 1976, ch. 62, § 119; 1990, ch. 42, § 7, effective July 13, 1990; 2010, ch. 24, § 1738, effective July 15, 2010; 2017 ch. 3, § 9, effective January 9, 2017.

NOTES TO DECISIONS

Cited:

Mitchell v. Mid-Continent Spring Co., 466 F.2d 24, 1972 U.S. App. LEXIS 7954 (6th Cir. 1972), cert. denied, 410 U.S. 928, 93 S. Ct. 1363, 35 L. Ed. 2d 589, 1973 U.S. LEXIS 3345 (1973).

337.427. Collection of unpaid wages and other relief.

  1. Any employer who violates the provisions of KRS 337.423 shall be liable to the employee or employees affected in the amount of their unpaid wages, and in instances of willful violation in employee suits under subsection (2) of this section, up to an additional equal amount as liquidated damages.
  2. Action to recover the liability may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves and other employees similarly situated. The court in the action shall, in cases of violation in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.
  3. An agreement by any employee to work for less than the wage to which the employee is entitled under KRS 337.420 to 337.433 and 337.990(11) shall not be a bar to any such action, or to a voluntary wage restitution of the full amount due under KRS 337.420 to 337.433 and 337.990(11).
  4. At the written request of any employee claiming to have been paid less than the wage to which he may be entitled under KRS 337.420 to 337.433 and 337.990(11) , the commissioner may bring any legal action necessary in behalf of the employee to collect the claim for unpaid wages. The commissioner shall not be required to pay the filing fee, or other costs, in connection with the action. The commissioner shall have power to join various claims against the employer in one (1) cause of action.
  5. In proceedings under this section, the court may order other affirmative action as appropriate, including reinstatement of employees discharged in violation of KRS 337.420 to 337.433 and 337.990(11).
  6. The commissioner may on his or her own motion petition any court of competent jurisdiction to restrain violations of KRS 337.423 , and petition for such affirmative relief as the court may deem appropriate, including restoration of unpaid wages and reinstatement of employees, consistent with the purpose of KRS 337.420 to 337.433 and 337.990(11).

History. Enact. Acts 1966, ch. 114, § 4; 1990, ch. 42, § 8, effective July 13, 1990; 2010, ch. 24, § 1739, effective July 15, 2010; 2017 ch. 3, § 10, effective January 9, 2017.

NOTES TO DECISIONS

Cited:

Mitchell v. Mid-Continent Spring Co., 466 F.2d 24, 1972 U.S. App. LEXIS 7954 (6th Cir. 1972), cert. denied, 410 U.S. 928, 93 S. Ct. 1363, 35 L. Ed. 2d 589, 1973 U.S. LEXIS 3345 (1973).

337.430. Statute of limitations.

Court action under KRS 337.420 to 337.433 and 337.990(11) may be commenced no later than six (6) months after the cause of action occurs.

History. Enact. Acts 1966, ch. 114, § 5; 1990, ch. 42, § 9, effective July 13, 1990; 2017 ch. 3, § 11, effective January 9, 2017.

NOTES TO DECISIONS

1.Filing Cause of Action.

Under KRS 337.423 , a cause of action cannot occur after the final date of employment, when an employee stops accruing wages. Crockett v. CHA HMO, Inc., 2008 Ky. App. LEXIS 103 (Ky. Ct. App. Apr. 4, 2008), review denied, ordered not published, 2009 Ky. LEXIS 262 (Ky. May 13, 2009).

337.433. Posting of law.

Every person subject to KRS 337.420 to 337.433 and 337.990(11) shall keep an abstract or copy of KRS 337.420 to 337.433 and 337.990(11) posted in a conspicuous place in or about the premises where any employee is employed. Employers shall be furnished copies or abstracts of KRS 337.420 to 337.433 and 337.990(11) by the state on request without charge.

History. Enact. Acts 1966, ch. 114, § 7; 1990, ch. 42, § 10, effective July 13, 1990; 2017 ch. 3, § 12, effective January 9, 2017.

Public Works

337.505. Definition of “prevailing wage” — Fringe benefits included. [Repealed]

History. Enact. Acts 1962, ch. 173, § 1; 1968, ch. 33, § 1; 1970, ch. 33, § 2; 1974, ch. 341, § 2; 1982, ch. 54, § 2, effective July 15, 1982; 2010, ch. 24, § 1740, effective July 15, 2010; repealed by 2017 ch. 3, § 14, effective January 9, 2017.

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 173, § 1; 1968, ch. 33, § 1; 1970, ch. 33, § 2; 1974, ch. 341, § 2; 1982, ch. 54, sec. 2, effective July 15, 1982; 2010, ch. 24, sec. 1740, effective July 15, 2010) was repealed by Acts 2017, ch. 3, § 14, effective January 9, 2017.

337.510. Public authority’s duties as to inclusion of prevailing wage in proposals and contracts. [Repealed]

History. 2290c-2: amend. Acts 1960, ch. 56, § 1; 1970, ch. 33, § 3; 1974, ch. 341, § 3; 2010, ch. 24, § 1741, effective July 15, 2010; repealed by 2017 ch. 3, § 14, effective January 9, 2017.

Compiler’s Notes.

This section (Recodified 1942 Ky. Acts ch. 208, § 1, effective October 1, 1942, from Ky. Stat. § 2290c-2; 1960, ch. 56, § 1, effective June 16, 1960; 1970, ch. 33, § 3; 1974 Ky. Acts ch. 341, § 3; 2010 Ky. Acts ch. 24, § 1741, effective July 15, 2010) was repealed by Acts 2017, ch. 3, § 14, effective January 9, 2017.

337.512. Duties of individual officers with respect to prevailing wage law. [Repealed]

History. Enact. Acts 1970, ch. 33, § 4; 1974, ch. 341, § 4; 2010, ch. 24, § 1742, effective July 15, 2010; repealed by 2017 ch. 3, § 14, effective January 9, 2017.

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 33, § 4; 1974, ch. 341, § 4; 2010, ch. 24, § 1742, effective July 15, 2010) was repealed by Acts 2017, ch. 3, § 14, effective January 9, 2017.

337.515. Application of KRS 337.510 to 337.550. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 173, § 3; 1970, ch. 33, § 5) was repealed by Acts 1974, ch. 341, § 10.

337.520. Determination of prevailing wages — Administrative regulations — Filing wage contract. [Repealed]

History. 2290c-3: amend. Acts 1960, ch. 56, § 2; 1962, ch. 173, § 2(1) to (4); 1968, ch. 33, § 2; 1970, ch. 33, § 6; 1974, ch. 341, § 5; 1982, ch. 54, § 3, effective July 15, 1982; 1996, ch. 48, § 2, effective July 15, 1996; 2010, ch. 24, § 1743, effective July 15, 2010; repealed by 2017 ch. 3, § 14, effective January 9, 2017.

Compiler’s Notes.

This section (Recodified 1942 Ky. Acts ch. 208, § 1, effective October 1, 1942, from Ky. Stat. § 2290c-3; 1962, ch. 173, § 2(1) to (4); 1968, ch. 33, § 2; 1970, ch. 33, § 6; 1974, ch. 341, § 5; 1982, ch. 54, § 3, effective July 15, 1982; 1996, ch. 48, § 2, effective July 15, 1996; 2010, ch. 24, § 1743, effective July 15, 2010) was repealed by Acts 2017, ch. 3, § 14, effective January 9, 2017.

337.522. Hearings — Publication of determination — Revisions — Prevailing wage review boards attached to Labor Cabinet for administrative purposes. [Repealed]

History. Enact. Acts 1962, ch. 173, § 2(5) to (7); 1972, ch. 275, § 1; 1974, ch. 341, § 6; 1984, ch. 414, § 15, effective July 13, 1984; 1996, ch. 48, § 3, effective July 15, 1996; 2010, ch. 24, § 1744, effective July 15, 2010; repealed by 2017 ch. 3, § 14, effective January 9, 2017.

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 173, § 2(5) to (7); 1972, ch. 275, § 1; 1974, ch. 341, § 6; 1984, ch. 414, § 15, effective July 13, 1984; 1996, ch. 48, § 3, effective July 15, 1996; 2010, ch. 24, § 1744, effective July 15, 2010) was repealed by Acts 2017, ch. 3, § 14, effective January 9, 2017.

337.524. Which rates to apply while review is pending. [Repealed]

History. Enact. Acts 1970, ch. 33, § 12; 2010, ch. 24, § 1745, effective July 15, 2010; repealed by 2017 ch. 3, § 14, effective January 9, 2017.

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 33, § 12; 2010, ch. 24, § 1745, effective July 15, 2010), was repealed by Acts 2017, ch. 3, § 14, effective January 9, 2017.

337.525. Judicial review. [Repealed]

History. Enact. Acts 1962, ch. 173, § 5; 1970, ch. 33, § 7; 1984, ch. 414, § 16, effective July 13, 1984; 2010, ch. 24, § 1746, effective July 15, 2010; repealed by 2017 ch. 3, § 14, effective January 9, 2017.

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 173, § 5; 1970, ch. 33, § 7; 1984, ch. 414, § 16, effective July 13, 1984; 2010, ch. 24, § 1746, effective July 15, 2010) was repealed by Acts 2017, ch. 3, § 14, effective January 9, 2017.

337.530. Contractor to pay prevailing wages and post rates — Payroll records — On-site inspections. [Repealed]

History. 2290c-4: amend. Acts 1960, ch. 56, § 3; 1962, ch. 173, § 4; 1970, ch. 33, § 8; 1974, ch. 341, § 7; 1982, ch. 54, § 4, effective July 15, 1982; 2010, ch. 24, § 1747, effective July 15, 2010; repealed by 2017 ch. 3, § 14, effective January 9, 2017.

Compiler’s Notes.

This section (2290c-4: amend. Acts 1960, ch. 56, § 3; 1962, ch. 173, § 4; 1970, ch. 33, § 8; 1974, ch. 341, § 7; 1982, ch. 54, § 4, effective July 15, 1982; 2010, ch. 24, § 1747, effective July 15, 2010) was repealed by Acts 2017, ch. 3, § 14, effective January 9, 2017.

337.540. Limitation of working hours — Exceptions — Overtime. [Repealed]

History. 2290c-5: amend. Acts 1968, ch. 33, § 3; 1974, ch. 341, § 8; 1994, ch. 258, § 1, effective July 15, 1994; repealed by 2017 ch. 3, § 14, effective January 9, 2017.

Compiler’s Notes.

This section (2290c-5: amend. Acts 1968, ch. 33, § 3; 1974, ch. 341, § 8; 1994, ch. 258, § 1, effective July 15, 1994) was repealed by Acts 2017, ch. 3, § 14, effective January 9, 2017.

337.545. Suspension of application of KRS 337.540 during national emergency. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 136, §§ 1, 3) was repealed by Acts 1950, ch. 176, § 1.

337.548. Injunction of violation of prevailing wage law. [Repealed]

History. Enact. Acts 1970, ch. 33, § 9; 2010, ch. 24, § 1748, effective July 15, 2010; repealed by 2017 ch. 3, § 14, effective January 9, 2017.

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 33, § 9; 2010, ch. 24, § 1748, effective July 15, 2010) was repealed by Acts 2017, ch. 3, § 14, effective January 9, 2017.

337.550. Department to aid in enforcement — Remedies of laborer. [Repealed]

History. 2290c-6: amend. Acts 1970, ch. 33, § 10; 1974, ch. 341, § 9; 1978, ch. 340, § 5, effective June 17, 1978; 2010, ch. 24, § 1749, effective July 15, 2010; repealed by 2017 ch. 3, § 14, effective January 9, 2017.

Compiler’s Notes.

This section (2290c-6: amend. Acts 1970, ch. 33, § 10; 1974, ch. 341,§ 9; 1978, ch. 340, § 5, effective June 17, 1978; 2010, ch. 24, § 1749, effective July 15, 2010) was repealed by Acts 2017, ch. 3, § 14, effective January 9, 2017.

Penalties

337.990. Penalties.

The following civil penalties shall be imposed, in accordance with the provisions in KRS 336.985 , for violations of the provisions of this chapter:

  1. Any firm, individual, partnership, or corporation that violates KRS 337.020 shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) for each offense. Each failure to pay an employee the wages when due him under KRS 337.020 shall constitute a separate offense.
  2. Any employer who violates KRS 337.050 shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000).
  3. Any employer who violates KRS 337.055 shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) for each offense and shall make full payment to the employee by reason of the violation. Each failure to pay an employee the wages as required by KRS 337.055 shall constitute a separate offense.
  4. Any employer who violates KRS 337.060 shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) and shall also be liable to the affected employee for the amount withheld, plus interest at the rate of ten percent (10%) per annum.
  5. Any employer who violates the provisions of KRS 337.065 shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) for each offense and shall make full payment to the employee by reason of the violation.
  6. Any person who fails to comply with KRS 337.070 shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) for each offense and each day that the failure continues shall be deemed a separate offense.
  7. Any employer who violates any provision of KRS 337.275 to 337.325 , KRS 337.345 , and KRS 337.385 to 337.405 , or willfully hinders or delays the commissioner or the commissioner’s authorized representative in the performance of his or her duties under KRS 337.295 , or fails to keep and preserve any records as required under KRS 337.320 and 337.325 , or falsifies any record, or refuses to make any record or transcription thereof accessible to the commissioner or the commissioner’s authorized representative shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000). A civil penalty of not less than one thousand dollars ($1,000) shall be assessed for any subsequent violation of KRS 337.285(4) to (9) and each day the employer violates KRS 337.285(4) to (9) shall constitute a separate offense and penalty.
  8. Any employer who pays or agrees to pay wages at a rate less than the rate applicable under KRS 337.275 and 337.285 , or any wage order issued pursuant thereto shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000).
  9. Any employer who discharges or in any other manner discriminates against any employee because the employee has made any complaint to his or her employer, to the commissioner, or to the commissioner’s authorized representative that he or she has not been paid wages in accordance with KRS 337.275 and 337.285 or regulations issued thereunder, or because the employee has caused to be instituted or is about to cause to be instituted any proceeding under or related to KRS 337.385 , or because the employee has testified or is about to testify in any such proceeding, shall be deemed in violation of KRS 337.275 to 337.325 , KRS 337.345 , and KRS 337.385 to 337.405 and shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000).
  10. Any employer who violates KRS 337.365 shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000).
  11. A person shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) when that person discharges or in any other manner discriminates against an employee because the employee has:
    1. Made any complaint to his or her employer, the commissioner, or any other person; or
    2. Instituted, or caused to be instituted, any proceeding under or related to KRS 337.420 to 337.433 ; or
    3. Testified, or is about to testify, in any such proceedings.

History. 576a-2, 1350, 1599c-19, 1599c-20, 2290c-4, 2290c-7, 4767a-16, 4866b-7: amend. Acts 1944, ch. 63, § 2; 1960, ch. 56, § 4, effective June 16, 1960; 1970, ch. 33, § 11; 1974, ch. 391, § 13; 1976, ch. 222, § 2; 1980, ch. 188, § 262, effective July 15, 1980; 1990, ch. 42, § 3, effective July 13, 1990; 2002, ch. 329, § 2, effective July 15, 2002; 2004, ch. 122, § 2, effective July 13, 2004; 2010, ch. 24, § 1750, effective July 15, 2010; 2017 ch. 3, § 6, effective January 9, 2017.

Legislative Research Commission Note.

(10/23/90). Through an apparent clerical or typographical error, the reference to KRS 337.505 to 337.550 in the first sentence of what is now subsection (13) of this statute was transformed into “KRS 337.505 or 337.550 .” Compare 1970 Ky. Acts ch. 33, sec. 11, with 1974 Ky. Acts ch. 391, sec. 13. Pursuant to KRS 7.136(1), 446.270 , and 446.280 . The prior wording has been restored.

NOTES TO DECISIONS

1.Employee’s Right of Action.

Employee could assert a retaliatory termination claim for being discharged for complaining the employee was unlawfully denied overtime pay because (1) the employee was among the class of persons protected by the Kentucky Wage and Hour Act, and (2) Ky. Rev. Stat. Ann. § 337.990(9) did not provide the employee with a civil remedy. Williams v. King Bee Delivery, LLC, 199 F. Supp. 3d 1175, 2016 U.S. Dist. LEXIS 104001 (E.D. Ky. 2016 ), dismissed, 2017 U.S. Dist. LEXIS 36195 (E.D. Ky. Mar. 14, 2017).

2.Wages Wrongfully Withheld.

Circuit court correctly determined there was no basis for setting aside the Cabinet’s order that the employer wrongfully withheld wages belonging to a former employee where the employer had no policy beyond the requirement of submitting a timesheet that required the employee to prove the number of hours he worked while out of the office, the employee verified the timesheets’ accuracy, the employer approved them, and they showed the employee was owed outstanding wages representing 58 hours of annual leave. Vogt Power Int'l, Inc. v. Labor Dep't of Workplace Stds., 588 S.W.3d 169, 2019 Ky. App. LEXIS 186 (Ky. Ct. App. 2019).

Cited:

Barker v. Stearns Coal & Lumber Co., 287 Ky. 340 , 152 S.W.2d 953, 1941 Ky. LEXIS 534 ( Ky. 1941 ); Hardin Memorial Hospital, Inc. v. Land, 645 S.W.2d 711, 1983 Ky. App. LEXIS 277 (Ky. Ct. App. 1983).

Opinions of Attorney General.

It was the clear intent of the legislature under KRS 337.020 to require firms, individuals, and partnerships as well as corporations to pay employees at least as frequently as semimonthly and, under subsection (1) of this section, to penalize those who fail to comply. OAG 70-830 .

Where the primary factor in the failure to pay pursuant to the prevailing wage rate provisions for a public works project was the fiscal court’s failure to observe the mandatory requirements of KRS 337.510 and 337.512 in that the fiscal court failed to obtain the prevailing wage rate schedules and to incorporate them into the bid specifications and the contract, the fiscal court was not only responsible for making sufficient payments to the contractors and their employees to comply with the applicable prevailing wage provisions, but the fiscal court and its members faced a potential liability for damages, injury or loss sustained by any person as a result of their negligence in failing to comply with the requirements of KRS 337.505 to 337.550 . OAG 80-547 .

337.991. Penalty. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 36, § 2) was repealed by Acts 1990, ch. 42, § 11.

337.992. Penalties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 114, § 8) was repealed by Acts 1990, ch. 42, § 11.

337.993. Penalties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 275, § 2; 1984, ch. 223, § 2) was repealed by Acts 1990, ch. 42, § 11.

337.994. Penalty for violating KRS 337.200.

Any employer who violates KRS 337.200 shall be fined not less than one hundred dollars ($100) nor more than five hundred dollars ($500). Each day that the employer violates KRS 337.200 shall constitute a separate offense and penalty. If the employer is a corporation, the officers of the corporation shall be personally liable for the penalty imposed herein.

History. Enact. Acts 1990, ch. 104, § 1, effective July 13, 1990.

CHAPTER 338 Occupational Safety and Health of Employees

338.010. Definitions and applicability. [Repealed.]

Compiler’s Notes.

This section (1599c-4, 1599c-22, 1599c-27, 1599c-39: amend. Acts 1958, ch. 132, § 1) was repealed by Acts 1972, ch. 251, § 22.

Legislative Research Commission Note.

This section was repealed by Acts 1972, ch. 251, § 22, and amended by Acts 1972, ch. 326, § 1. The total purpose of the two acts appears to be served by repeal of this section and replacement with KRS 338.015 , and the acts have been compiled accordingly.

338.011. Statement of purpose and policy.

The General Assembly finds that occupational accidents and diseases produce personal injuries and illness including loss of life as well as economic loss. Therefore, the General Assembly declares that it is the purpose and policy of the Commonwealth of Kentucky to promote the safety, health and general welfare of its people by preventing any detriment to the safety and health of all employees, both public and private, covered by this chapter, arising out of exposure to harmful conditions and practices at places of work and otherwise to preserve our human resources by providing for education and training, inspection of workplaces, consultation, services, research, reports and statistics, and other means of furthering progress in the field of occupational safety and health.

History. Enact. Acts 1972, ch. 251, § 1.

NOTES TO DECISIONS

1.Applicability.

Although the accident was an event which the Kentucky Occupational Safety and Health Act (KOSHA) administrative regulation was designed to prevent, logger who made profit from purchasing standing timber from property owners and then cutting and selling the logs to timber mills such as the one where accident occurred, was not an employee of the timber mill, and thus was not in the class of persons the KOSHA regulation was designed to protect, as such the negligence per se standard did not apply. Carman v. Dunaway Timber Co., 949 S.W.2d 569, 1997 Ky. LEXIS 27 ( Ky. 1997 ).

Handyman’s negligence per se claim failed as a matter of law because a limited liability company (LLC) had no duty to comply with the Kentucky Occupational Safety and Health Act; the handyman was an independent contractor, rather than an employee of the LLC, and was performing specialized work unrelated to the normal operations of the LLC’s property rental business, and thus, the responsibility for complying with safety laws applicable to that specialized work was upon the handyman. Auslander Props., LLC v. Nalley, 558 S.W.3d 457, 2018 Ky. LEXIS 371 ( Ky. 2018 ).

2.Legislative Intent.

Because the authority to impose penalties for violations of the KOSHA standards is placed in the Kentucky Occupational Safety and Health Commission, an administrative body, the General Assembly intended this chapter to impose civil rather than criminal penalties. Commonwealth v. Lawson Mardon Flexible Packaging, Inc., 10 S.W.3d 488, 1999 Ky. App. LEXIS 163 (Ky. Ct. App. 1999).

3.Penalties.

Because this chapter is properly regarded as a civil statute both in form and in application, the penalties imposed by it do not bring about Fifth Amendment protection from subsequent criminal prosecution. Commonwealth v. Lawson Mardon Flexible Packaging, Inc., 10 S.W.3d 488, 1999 Ky. App. LEXIS 163 (Ky. Ct. App. 1999).

4.Citation Not Void

Citation against a subcontractor working on a multi-employer work site under the Kentucky Occupational Safety and Health Act (KOSHA), KRS 338.011 et seq., was not void for a failure to comply with KRS 338.111 as the subcontractor did not show prejudice, was no longer on site when the inspection was conducted, and would have required advance notice, which would have defeated the purpose of KOSHA; the primary contractor was afforded the opportunity to attend the opening conference and walk around inspection. Dep't of Labor v. Hayes Drilling, Inc., 354 S.W.3d 131, 2011 Ky. App. LEXIS 146 (Ky. Ct. App. 2011).

5.Abatement Requirements.

It was the Kentucky Occupational Safety and Health Act’s, KRS 338.011 et seq., purpose to prevent the first accident and recurring accidents, and where a citation acknowledged that the alleged violation had been eliminated on April 19, 2005, and a subcontractor was informed that abatement was not an issue, the requirements of KRS 338.141 were met. Dep't of Labor v. Hayes Drilling, Inc., 354 S.W.3d 131, 2011 Ky. App. LEXIS 146 (Ky. Ct. App. 2011).

Opinions of Attorney General.

KRS Chapter 338, in not excluding the state or its subdivisions from its scope, has waived sovereign immunity for penalties against such entities. OAG 75-161 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Kentucky Occupational Safety and Health, § 286.00.

338.015. Definitions and applicability.

As used in this chapter:

  1. “Employer” shall mean any entity for whom a person is employed except those employers excluded in KRS 338.021 ;
  2. “Employee” shall mean any person employed except those employees excluded in KRS 338.021 ;
  3. The term “occupational safety and health standard” means a standard which requires conditions, or the adoption or use of one (1) or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment. “Standard” has the same meaning as and includes the words “regulation” and “rule”;
  4. “Occupational safety and health hazard” means any practice or condition in a place of employment which may be deemed detrimental to the safety and health of employees;
  5. “Occupational injury or illness” means any abnormal condition or disorder of an employee caused by exposure to factors associated with his or her employment;
  6. “Board” means the Kentucky Occupational Safety and Health Standards Board established under this chapter;
  7. “Commissioner” means the commissioner of the Department of Workplace Standards under the direction and supervision of the secretary of the Labor Cabinet;
  8. “Review commission” means the Kentucky Occupational Safety and Health Review Commission established under this chapter;
  9. The term “national consensus standard” means any occupational safety and health standard or modification thereof which has been adopted and promulgated by a nationally recognized standards-producing organization;
  10. The term “established federal standard” means any operative occupational safety and health standard established by any agency of the United States government;
  11. “Department” means the Department of Workplace Standards; and
  12. “Secretary” means the secretary of the Labor Cabinet.

History. Enact. Acts 1972, ch. 251, § 2; 1984, ch. 414, § 17, effective July 13, 1984; 2005, ch. 123, § 37, effective June 20, 2005; 2010, ch. 24, § 1751, effective July 15, 2010.

NOTES TO DECISIONS

1.Employee.

Employer-employee relationship is a familiar and well-established species of agency relationship, and it carries with it a wide range of specific legal obligations applicable in circumstances far beyond the Kentucky Occupational Safety and Health Act regulations; a member of a limited liability company (LLC) conducting business and performing work as an agent of the LLC does not automatically become an employee of the LLC. Auslander Props., LLC v. Nalley, 558 S.W.3d 457, 2018 Ky. LEXIS 371 ( Ky. 2018 ).

Limited liability company (LLC) was not an employee for purposes of the Kentucky Occupational Safety and Health Act because nothing in the record suggested that the sole member of the LLC was an employee of his own LLC. Auslander Props., LLC v. Nalley, 558 S.W.3d 457, 2018 Ky. LEXIS 371 ( Ky. 2018 ).

Handyman’s negligence per se claim failed as a matter of law because a limited liability company (LLC) had no duty to comply with the Kentucky Occupational Safety and Health Act; the handyman was an independent contractor, rather than an employee of the LLC, and was performing specialized work unrelated to the normal operations of the LLC’s property rental business, and thus, the responsibility for complying with safety laws applicable to that specialized work was upon the handyman. Auslander Props., LLC v. Nalley, 558 S.W.3d 457, 2018 Ky. LEXIS 371 ( Ky. 2018 ).

Opinions of Attorney General.

The provisions of this section and of KRS 338.021 would apply to state and local governments and their respective employees. OAG 72-523 .

Both the history of the Kentucky occupational safety and health statutes and the requirements of the federal Occupational Safety and Health Act of 1970 authorizing a state to submit an approved plan indicate an intention to cover state, municipal, and other political subdivision employees under the state act, and civil penalties may be assessed against such entities. OAG 75-161 .

Where Kentucky Labor Cabinet receives complaints from employees who are faced with choice of driving defective and unsafe vehicles on public highways or being fired, the Labor Cabinet is not restricted in exercising jurisdiction to just “off the road” job site employees, since KRS 338.021 applies labor’s safety jurisdiction to all employers and employees in all places and an occupational safety and health hazard is, under this section, any detrimental practice or condition in a place of employment; however, the Labor Cabinet is not required to enforce standards under these sections, and may refrain from exercising that jurisdiction by agreement under KRS 15.610 with other enforcement agencies which exercise dual and overlapping jurisdictions; and the Labor Cabinet will lose any jurisdiction which it does retain at such time as the Bureau (now Department) of Vehicle Regulation and the Vehicle Equipment Safety Commission promulgate rules, regulations, or a code which supersede the statutes governing the Labor Cabinet jurisdiction. OAG 81-24 .

Research References and Practice Aids

Kentucky Bench & Bar.

Lester, Ensuring the Health Care Worker Can Perform the Essential Functions of Their Position in the Increasingly Restricted Legal Environment Governing Hiring and Disability Accommodation, Volume 75, No. 3, May 2011, Ky. Bench & Bar 10.

338.020. Industrial safety board. [Repealed.]

Compiler’s Notes.

This section (1599c-21: amend. Acts 1958, ch. 131, § 1) was repealed by Acts 1972, ch. 251, § 22.

338.021. Exclusions.

  1. This chapter applies to all employers, employees, and places of employment throughout the Commonwealth except the following:
    1. Employees of the United States government; and
    2. Employers, employees and places of employment over which federal agencies other than the Occupational Safety and Health Administration of the United States Department of Labor exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health.
    1. Notwithstanding any voluntary agreement entered into between the United States Department of Labor and a franchisee, neither a franchisee nor a franchisee’s employee shall be deemed to be an employee of the franchisor for any purpose under this chapter. (2) (a) Notwithstanding any voluntary agreement entered into between the United States Department of Labor and a franchisee, neither a franchisee nor a franchisee’s employee shall be deemed to be an employee of the franchisor for any purpose under this chapter.
    2. Notwithstanding any voluntary agreement entered into between the United States Department of Labor and a franchisor, neither a franchisor nor a franchisor’s employee shall be deemed to be an employee of the franchisee for any purpose under this chapter.
    3. For purposes of this subsection, “franchisee” and “franchisor” have the same meanings as in 16 C.F.R. sec. 436.1.
  2. Nothing in this chapter shall be construed to supersede or in any manner affect any workers’ compensation law or to enlarge or diminish or affect in any manner the common law or statutory rights, duties, or liabilities of employers or employees, under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of employment.

HISTORY: Enact. Acts 1972, ch. 251, § 3; 1982, ch. 378, § 1, effective July 15, 1982; 2017 ch. 24, § 2, effective June 29, 2017.

NOTES TO DECISIONS

1.Purpose.

The purpose of this section seems to be the preclusion of independent civil actions based on violations of the Kentucky Occupational Safety and Health Act. Childers v. International Harvester Co., 569 S.W.2d 675, 1977 Ky. App. LEXIS 927 (Ky. Ct. App. 1977).

2.Workers’ Compensation.

This statute does not preclude the assessment of the 15 percent penalty provided for in the workers’ compensation statute (KRS 342.165 ) for intentional failure of an employer to comply with safety statutes or regulations. Childers v. International Harvester Co., 569 S.W.2d 675, 1977 Ky. App. LEXIS 927 (Ky. Ct. App. 1977).

Subsection (2) of this section does not prohibit the assessment of a penalty under the Workers’ Compensation Act for a violation of a regulation promulgated under the Kentucky Occupational Safety and Health Act, KRS Chapter 338; this does not mean, however, that every violation by an employer of a regulation promulgated under statutory authority should result in an increase in the employer’s liability under the Workers’ Compensation Act since KRS 342.165 requires an “intentional failure of the employer to comply with any specific statute or lawful regulation made thereunder.” Barmet of Kentucky, Inc. v. Sallee, 605 S.W.2d 29, 1980 Ky. App. LEXIS 362 (Ky. Ct. App. 1980).

3.Violation of Federal Regulation.

A violation of a regulation promulgated under the federal Occupational Safety and Health Act does not give rise to an independent tort action by the employee against his employer. Stinnett v. Buchele, 598 S.W.2d 469, 1980 Ky. App. LEXIS 312 (Ky. Ct. App. 1980).

4.Preemption.

A claim by a pesticide worker that he was wrongfully discharged for complaints about unsafe work conditions were not preempted by federal law under KRS 338.221 where the worker was not engaged in agricultural work. Terminix Int'l v. Sec'y of Labor, 92 S.W.3d 743, 2002 Ky. App. LEXIS 2340 (Ky. Ct. App. 2002).

Cited:

Kentucky Utilities Co. v. Auto Crane Co., 674 S.W.2d 15, 1983 Ky. App. LEXIS 402 (Ky. Ct. App. 1983); Stovall v. A. O. Smith Corp., 676 S.W.2d 475, 1984 Ky. App. LEXIS 501 (Ky. Ct. App. 1984).

Opinions of Attorney General.

Where Kentucky Department of Labor receives complaints from employees who are faced with choice of driving defective and unsafe vehicles on public highways or being fired, the Department of Labor is not restricted in exercising jurisdiction to just “off the road” job site employees, since this section applies labor’s safety jurisdiction to all employers and employees in all places and an occupational safety and health hazard is, under KRS 338.015 , any detrimental practice or condition in a place of employment; however, the Department of Labor is not required to enforce standards under these sections, and may refrain from exercising that jurisdiction by agreement under KRS 15.610 with other enforcement agencies which exercise dual and overlapping jurisdictions; and the Department of Labor will lose any jurisdiction which it does retain at such time as the Bureau (now Department) of Vehicle Regulation and the Vehicle Equipment Safety Commission promulgate rules, regulations, or a code which supersede the statutes governing the Department of Labor jurisdiction. OAG 81-24 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Harned and Hopgood, Worker’s Compensation, 70 Ky. L.J. 499 (1981-82).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Kentucky Occupational Safety and Health, § 286.00.

338.030. Employer to furnish safeguards — Effect of failure to use. [Repealed.]

Compiler’s Notes.

This section (1599c-23) was repealed by Acts 1972, ch. 251, § 22.

338.031. Obligations of employers and employees.

  1. Each employer:
    1. Shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
    2. Shall comply with occupational safety and health standards promulgated under this chapter.
  2. Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this chapter which are applicable to his own actions and conduct.

History. Enact. Acts 1972, ch. 251, § 4.

NOTES TO DECISIONS

1.Knowledge of Regulations.

Either the employer must know that a safety regulation exists or the regulation must have been in existence long enough to create a presumption of knowledge before the employer may be assessed a penalty for its violation. Barmet of Kentucky, Inc. v. Sallee, 605 S.W.2d 29, 1980 Ky. App. LEXIS 362 (Ky. Ct. App. 1980).

2.Fact Issue.

In personal injury action, where there was evidence of probative value that decomposed silage had been allowed to accumulate on silo’s steps, an issue of fact was presented as to whether such decomposed silage existed on the steps of the silo and, if so, whether employers were negligent in allowing it to be there and in failing to provide the injured employee a safe place to work. Taylor v. Kennedy, 700 S.W.2d 415, 1985 Ky. App. LEXIS 606 (Ky. Ct. App. 1985).

3.Worker’s Compensation.

This section, which deals with employer and employee shared obligations to promote and insure workplace safety, does not preclude the assessment of a penalty for employer or employee misconduct in the foregoing regard pursuant to KRS 342.165 in a worker’s compensation case involving the Kentucky Occupational Health and Safety Act violation. Whittaker v. McClure, 891 S.W.2d 80, 1995 Ky. LEXIS 6 ( Ky. 1995 ).

Claimant failed to sustain contention that employer intentionally failed to provide ventilation system in vocational school where claimant taught refrigeration, heating and air conditioning where he cited no statute or regulation which required mechanical ventilation or the use of protective gloves or a respirator when working with solvents or sufficient evidence that the employer’s failure to provide this equipment indicated such a gross disregard of patently obvious, basic safety concepts, therefore, there was not an adequate basis to overcome the requirement of KRS 342.165 that a specific statute or regulation concerning it must have been violated in order to justify 15% penalty. Cabinet for Workforce Dev. v. Cummins, 950 S.W.2d 834, 1997 Ky. LEXIS 87 ( Ky. 1997 ).

When a worker was hurt when the worker's supervisor drove a company vehicle after smoking marijuana, the worker was not entitled to a safety violation enhancement because the employer (1) took reasonable steps by obtaining random drug screens and periodically checking driving records before letting employees drive company vehicles and (2) could not reasonably anticipate the supervisor would drive under the influence. Gregory v. A & G Tree Serv., 2018 Ky. App. LEXIS 79 (Ky. Ct. App. Feb. 16, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 971 (Ky. Ct. App. Feb. 16, 2018).

Safety-violation benefit enhancement in Kentucky’s workers’ compensation statute does not apply to a temporary staffing company employee except in extremely limited circumstances, leaving a temporary employee without the same entitlement to enhanced benefits as an injured employee of the host company. Maysey v. Express Servs., 620 S.W.3d 63, 2021 Ky. LEXIS 123 ( Ky. 2021 ).

4.Intentional Violation.

Substantial evidence supported administrative law judge’s inference that employer’s violation was intentional where there was evidence that supervisory personnel, including claimant’s foreman, were aware of the defective condition of the grader and substantial evidence supported the conclusion that the grader was moving faster than it would have been were it not defective, thereby contributing to the severity of the accident, and fact that this section was enacted in 1972, precluded an argument that the employer was unaware of its requirements. Therefore, imposition of 15% safety violation penalty was warranted under KRS 342.165 . Apex Mining v. Blankenship, 918 S.W.2d 225, 1996 Ky. LEXIS 19 ( Ky. 1996 ).

Where there was substantial evidence that the employer was aware of the defective condition of the grader, and it was apparent, even to a lay person, that a piece of heavy equipment without brakes, with a decelerator that was not in proper condition and with a throttle fastened in the wide open position created a safety hazard, especially when evidence showed that other operators had been forced to crash the defective machine into other equipment in order to stop it, the case did not concern a safety hazard of which the employer could reasonably have been unaware but instead, concerned a hazard that was obvious. Apex Mining v. Blankenship, 918 S.W.2d 225, 1996 Ky. LEXIS 19 ( Ky. 1996 ).

There was substantial evidence to support the finding that the employer violated the general duty clause of this section, and that it intentionally failed to comply with a specific statute; therefore, under KRS 342.165 , the employer was subject to a fifteen percent (15%) enhancement of the benefit owed to the employee. Lexington-Fayette Urban County Gov't v. Offutt, 11 S.W.3d 598, 2000 Ky. App. LEXIS 10 (Ky. Ct. App. 2000).

Where the father was killed in a work-related accident when the father’s truck rolled off the road and down an 800-foot embankment, where the employer had violated federal regulations that required a berm of sufficient height to stop the truck, and where, as a result, a 30 percent penalty pursuant to KRS 342.165 was awarded to the beneficiary due to the finding that the employer intentionally violated KRS 338.031(1)(a), substantial evidence supported the determination; during the repair of the berm, which was ongoing at the time of the accident, the employer decided to continue sending employees up the dangerous road instead of waiting until the berm was repaired in all sections, and there was evidence that the financial incentive of keeping the trucks running outweighed a prudent consideration of the hazard posed by the inadequate berm. Hawkeye Constr. Co. v. Little, 151 S.W.3d 360, 2004 Ky. App. LEXIS 345 (Ky. Ct. App. 2004).

Even assuming that an employer’s conduct in failing to secure a ladder was an intentional violation of KRS 338.031(1)(a), it was certainly not an egregious violation; accordingly, the Workers’ Compensation Board erred by affirming an administrative law judge’s decision that increased the employee’s temporary total and permanent partial disability benefits. Wehr Constructors, Inc. v. Gibson, 2007 Ky. App. LEXIS 399 (Ky. Ct. App. Oct. 12, 2007).

ALJ correctly applied the four-part Offutt test to determine that the employer violated the general duties provision, KRS 338.031 , and this finding allowed the ALJ to enhance the employee’s weekly income benefits pursuant to KRS 342.165(1); the evidence was sufficient to prove that the employer intentionally violated § 338.031 (1)(a). Hornback v. Hardin Mem. Hosp., 2013 Ky. LEXIS 233 (Ky. May 23, 2013), modified, 2013 Ky. LEXIS 576 (Ky. Oct. 24, 2013), sub. op., 411 S.W.3d 220, 2013 Ky. LEXIS 577 ( Ky. 2013 ).

Regarding whether a hospital intentionally violated KRS 338.031(1)(a), there was sufficient evidence that the hospital intentionally disregarded the safely hazard that can occur if an elevator stalls by failing to take appropriate preventative measures to prevent or reduce the risk of injury. The hospital’s failure to take any prophylactic measures to prevent the claimant from suffering her ultimate fate of falling into an open elevator shaft could only be considered to be an intentional disregard of a safety hazard. Hornback v. Hardin Mem. Hosp., 411 S.W.3d 220, 2013 Ky. LEXIS 577 ( Ky. 2013 ).

4.5.Violation Under Special Duty Clause.

To establish a prima facie case for either a serious, or “other than serious”, Kentucky Occupational Safety and Health Act (KOSHA) violation under the special duty clause of KRS 338.031(1)(b), the Labor Cabinet bears the burden of proving, by a preponderance of the evidence, that (1) the cited standard applies to the facts; (2) the requirements of the standard were not met; (3) employees had access to the hazardous or violative condition (i.e., a violative or hazardous condition existed, and employees were exposed to it); and (4) the employer knew or could have known of the hazardous condition with the exercise of reasonable diligence. DOL v. Morel Constr. Co., 359 S.W.3d 438, 443, 2011 Ky. App. LEXIS 56 (Ky. Ct. App. 2011).

Administrative law judge properly found that the statutory general duty clause was violated because testimony from an injured employee and his coworkers established that the various hazards at issue were known to the employer prior to the employee's injury and reasonably contributed to the his injury. Am. Woodmark Corp. v. Mullins, 484 S.W.3d 307, 2016 Ky. App. LEXIS 94 (Ky. Ct. App. 2016).

5.Failure to Comply.
6.—Cause of Action.

Complaint alleging that employer of decedent, murdered while on the job, failed to provide a safe place to work, failed to provide proper equipment, and failed to train decedent in the safe method of doing the work which resulted in his death stated a cause of action. Johnson v. Thoni Oil Magic Benzol Gas Stations, Inc., 467 S.W.2d 772, 1971 Ky. LEXIS 403 ( Ky. 1971 ) (decided under prior law).

Circuit court did not err in finding for an injured worker in his premises liability action against a building owner because the owner owed certain duties to the worker under the Kentucky Occupational Safety and Health Act where the core function of the owner included landscaping and building maintenance, and, even if the worker were an independent contractor, the general duties of employers inured to the benefit of, inter alia, independent contractors themselves, the owner never delegated control or safety compliance to the worker, and the owner's member actively oversaw the maintenance of the rental properties, and directly participated in the maintenance activity at issue. Auslander Props., LLC v. Nalley, 2016 Ky. App. LEXIS 10 (Ky. Ct. App. Jan. 29, 2016), rev'd, 558 S.W.3d 457, 2018 Ky. LEXIS 371 ( Ky. 2018 ), rev'd, 2018 Ky. LEXIS 255 (Ky. June 14, 2018) (Ky. Ct. App. Jan. 29, 2016), rev’d, 2018 Ky. LEXIS 255 (Ky. June 14, 2018), rev’d, 558 S.W.3d 457, 2018 Ky. LEXIS 371 ( Ky. 2018 ).

7.Degree of Care.

Where evidence showed that decedent, who was killed when bulldozer he was operating went over a retaining wall, was aware of the danger that was present and that work area was safe if bulldozer was operated properly, statute did not operate to make employer an insurer. Robbins v. Shepherd, 509 S.W.2d 278, 1974 Ky. LEXIS 563 ( Ky. 1974 ) (decided under prior law).

8.Independent Contractors.

KOSHA’s protections extend to any employee, including an employee of an independent contractor, who is performing work at another employer’s workplace. Hargis v. Baize, 168 S.W.3d 36, 2005 Ky. LEXIS 158 ( Ky. 2005 ).

Where an employer hired an independent contractor to haul logs and the independent contractor was killed when a log rolled off a trailer and struck him, because the employer had failed to follow KOSHA log-securing procedures, KOSHA protections applied to the decedent contractor, and the employer had violated KRS 338.031(1), KRS 446.070 authorized a private civil action for damages against the employer. Hargis v. Baize, 168 S.W.3d 36, 2005 Ky. LEXIS 158 ( Ky. 2005 ).

Some basic aspects of routine landscape maintenance fall within the core functions of managing and renting real estate but specialized work requires specialized knowledge and skills beyond what is reasonably expected of an ordinary property rental business; an employer who uses a specialized independent contractor properly relies upon the contractor’s skill and superior knowledge of the risks inherent in the work, safety equipment, and techniques required by regulations for minimizing risks. Auslander Props., LLC v. Nalley, 558 S.W.3d 457, 2018 Ky. LEXIS 371 ( Ky. 2018 ).

Handyman’s negligence per se claim failed as a matter of law because a limited liability company (LLC) had no duty to comply with the Kentucky Occupational Safety and Health Act; the handyman was an independent contractor, rather than an employee of the LLC, and was performing specialized work unrelated to the normal operations of the LLC’s property rental business, and thus, the responsibility for complying with safety laws applicable to that specialized work was upon the handyman. Auslander Props., LLC v. Nalley, 558 S.W.3d 457, 2018 Ky. LEXIS 371 ( Ky. 2018 ).

When an employer sends its own employees into harm’s way to perform any task regardless of the nature of the business, the employer must apprise itself of, and comply with, safety regulation applicable to that task, but when the employer engages the services of an independent contractor for a task alien to the core function of the employer’s business, the employer is relying upon the contractor’s special expertise and ability to know and obey the applicable safety standards of that activity. Auslander Props., LLC v. Nalley, 558 S.W.3d 457, 2018 Ky. LEXIS 371 ( Ky. 2018 ).

Construction company did not owe an independent contractor’s employee any duty under the Kentucky Occupational Safety and Health Act where the independent contractor had contracted with the homeowners and had not reached out to the company to coordinate a time for the employee to perform the work, and thus, there was no pseudo employer-employee relationship contemplated by the case law interpreting Ky. Rev. Stat. Ann. § 338.031(1). Holder v. Paragon Homes, LLC, 2020 Ky. App. LEXIS 39 (Ky. Ct. App. Apr. 3, 2020, sub. op., 2020 Ky. App. Unpub. LEXIS 826 (Ky. Ct. App. Apr. 3, 2020).

9.Substantial Evidence Found.

Substantial evidence supported a citation issued to a subcontractor as a creating employer at a multi-employer work site under KRS 338.031(1)(b) as the subcontractor dug a hole in which another contractor’s employee fell and placed plywood over the hole without securing it in place and marking the hazard. Dep't of Labor v. Hayes Drilling, Inc., 354 S.W.3d 131, 2011 Ky. App. LEXIS 146 (Ky. Ct. App. 2011).

10.General Duty Clause.

Under the general duty clause, it was no error to dismiss a citation based on the Secretary of Labor's (Secretary) failure to show a work implement malfunctioned because the Secretary worded a recognized hazard as caused by a malfunctioning implement, requiring such proof, rather than a general hazard. Sec'y of Labor v. UPS, 512 S.W.3d 739, 2017 Ky. App. LEXIS 38 (Ky. Ct. App. 2017).

It was no error to dismiss a citation for the Secretary of Labor's (Secretary) failure to prove a recognized hazard because the Secretary did not show a malfunctioning work implement caused the hazard, and neither an employer nor the industry recognized this malfunctioning implement as a hazard. Sec'y of Labor v. UPS, 512 S.W.3d 739, 2017 Ky. App. LEXIS 38 (Ky. Ct. App. 2017).

It was no error to dismiss a citation based on the Secretary of Labor's (Secretary) failure to prove a feasible means of abatement of a hazard because, while a means existed, the Secretary showed no recognized hazard, making a feasible abatement's availability immaterial. Sec'y of Labor v. UPS, 512 S.W.3d 739, 2017 Ky. App. LEXIS 38 (Ky. Ct. App. 2017).

Research References and Practice Aids

Kentucky Bench & Bar.

Henley, Violence in the Workplace: Does Workers’ Compensation Apply?, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 24.

Lowther and Lowther, Workplace Injuries: Safety Penalties and Workers’ Compensation Claims, Vol. 72, No. 5, September 2008, Ky. Bench & Bar 22.

Kentucky Law Journal.

Braden, An Insurer’s Liability to Third Parties for Negligent Inspection, 66 Ky. L.J. 910 (1977-1978).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Kentucky Occupational Safety and Health, § 286.00.

338.040. Board to fix and enforce standards of safety. [Repealed.]

Compiler’s Notes.

This section (1599c-24) was repealed by Acts 1972, ch. 251, § 22.

338.041. Administration of matters pertaining to occupational safety and health — Contract with other agencies.

  1. The Department of Workplace Standards in the Labor Cabinet shall administer all matters pertaining to occupational safety and occupational health.
  2. The department may require the assistance of other state agencies and may enter into agreements with other state agencies and political subdivisions of the Commonwealth for the administration of this chapter.
  3. The department may enter into an agreement with the Cabinet for Health and Family Services and other appropriate departments or agencies to conduct research, experiments, and demonstrations relating to occupational safety and health, including studies of psychological factors involved, and relating to innovative methods, techniques, and approaches for dealing with occupational safety and health problems in the administration of this chapter.

History. Enact. Acts 1972, ch. 251, § 5; 1974, ch. 311, § 1; 1976, ch. 299, § 86; 1978, ch. 155, § 155, effective June 17, 1978; 1984, ch. 414, § 18, effective July 13, 1984; 1998, ch. 426, § 560, effective July 15, 1998; 2005, ch. 99, § 608, effective June 20, 2005; 2010, ch. 24, § 1752, effective July 15, 2010.

Opinions of Attorney General.

Basic enforcement powers rest with the Department of Labor, with the Department of Health (now Cabinet for Health and Family Services) merely furnishing technical assistance and research which may aid in enforcement. OAG 72-523 .

The Labor Cabinet has primary enforcement power as to other state agencies and local and county governments. OAG 72-523 .

Research References and Practice Aids

Kentucky Bench & Bar.

Waddell, Kentucky Occupational Safety and Health Practice, Vol. 45, No. 2, April 1981, Ky. Bench & Bar 24.

Northern Kentucky Law Review.

Comments, The Fourth Amendment and the Administrative Search, 5 N. Ky. L. Rev. 219 (1978).

338.042. Expansion of Department of Workplace Standards — Duties of additional staff.

Effective July 1, 1994, the Department of Workplace Standards shall be expanded by sixteen (16) employees. These additional staff shall assist employers in their efforts to improve safety and health practices in their workplaces; to assure compliance with industrial health and safety regulations; and to expedite the processing of contested citations and appeals. These additional expenditures shall be financed by funds collected for the special fund pursuant to KRS 342.122 .

History. Enact. Acts 1994, ch. 181, § 73, effective April 4, 1994; 2010, ch. 24, § 1753, effective July 15, 2010.

338.050. Determination and removal of unsafe working conditions. [Repealed.]

Compiler’s Notes.

This section (1599c-25: amend. Acts 1946, ch. 243) was repealed by Acts 1972, ch. 251, § 22.

338.051. Kentucky Occupational Safety and Health Standards Board — Membership — Terms — Chairman — Meetings — Quorum — Regulations — Compensation.

  1. There is hereby established the Kentucky Occupational Safety and Health Standards Board consisting of the secretary and twelve (12) members equally representing industry, labor, agriculture, and the safety and health profession. The members shall be appointed by the Governor for terms of three (3) years and until their successors are appointed and qualified, from lists of nominees submitted by bona fide associations representative of industry, labor, agriculture, and the safety and health profession. Members shall receive twenty-five dollars ($25) per day for attending each meeting and shall be reimbursed for actual expenses incurred in carrying out their duties. The secretary shall act as chairman of the board. No member of the board may have a concurrent term on the review commission.
  2. The board shall hold annual meetings and additional meetings as needed. A majority of the board constitutes a quorum for the transaction of business.
  3. The board shall adopt and promulgate occupational safety and health rules, regulations, and standards, except that the chairman of the board may adopt established federal standards without board approval if necessary to meet federal time requirements. The board shall secure all expertise, testimony, and evidence necessary to accomplish the purposes of this chapter.
  4. The board shall be attached to the Labor Cabinet for administrative purposes.

History. Enact. Acts 1972, ch. 251, § 6; 1978, ch. 154, § 37, effective June 17, 1978; 1982, ch. 378, § 2, effective July 15, 1982; 1984, ch. 414, § 19, effective July 13, 1984; 2006, ch. 89, § 1, effective July 12, 2006; 2010, ch. 24, § 1754, effective July 15, 2010.

NOTES TO DECISIONS

1.Authority.

Circuit court erred in affirming a decision of the Kentucky Occupational Safety and Health Review Commission (Tribunal) because the Tribunal acted outside its role as a neutral administrative arbiter; the Tribunal relied on a regulation the Kentucky Occupational Safety and Health Standards Board never endorsed, and thus, it effectively expanded the kinds of complaints protected by the Kentucky Occupational Safety and Health Act which was a usurpation of the Board's policy-making authority. Estill County Fiscal Court v. Commonwealth, 2015 Ky. App. LEXIS 24 (Ky. Ct. App. Feb. 27, 2015, sub. op., 2015 Ky. App. Unpub. LEXIS 865 (Ky. Ct. App. Feb. 27, 2015).

Cited:

Ernest Simpson Constr. Co. v. Conn, 625 S.W.2d 850, 1981 Ky. LEXIS 310 ( Ky. 1981 ); Secretary of Labor v. Irvin H. Whitehouse & Sons, 977 S.W.2d 250, 1998 Ky. App. LEXIS 76 (Ky. Ct. App. 1998).

Research References and Practice Aids

Kentucky Bench & Bar.

Waddell, Kentucky Occupational Safety and Health Practice, Vol. 45, No. 2, April 1981, Ky. Bench & Bar 24.

Kentucky Law Journal.

Kentucky Law Survey, Harned and Hopgood, Worker’s Compensation, 70 Ky. L.J. 499 (1981-82).

338.060. Judicial review of board’s action. [Repealed.]

Compiler’s Notes.

This section (1599c-26) was repealed by Acts 1972, ch. 251, § 22.

338.061. Occupational safety and health standards — Suspension, delay, or alteration in enforcement of administrative regulation.

  1. Occupational safety and health standards may be adopted, modified, or repealed by the board through the administrative regulation process of KRS Chapter 13A as it shall deem necessary, except the secretary may through an administrative order suspend, delay, or alter enforcement of a promulgated occupational safety and health administrative regulation if the federal government has suspended, delayed, or enjoined the corresponding federal regulation or suspended, delayed, enjoined, or altered the enforcement thereof. Any action taken by the secretary to suspend, delay, or alter the enforcement of an occupational safety and health administrative regulation pursuant to this subsection shall be consistent with those taken by the federal government, except that the secretary may enforce an administrative regulation or standard which immediately preceded the administrative regulation whose enforcement is amended, delayed, or altered.
  2. Established federal standards and national consensus standards may be adopted by reference.

History. Enact. Acts 1972, ch. 251, § 7; 2006, ch. 89, § 2, effective July 12, 2006; 2018 ch. 8, § 1, effective March 8, 2018.

NOTES TO DECISIONS

Cited:

Kentucky Utilities Co. v. Auto Crane Co., 674 S.W.2d 15, 1983 Ky. App. LEXIS 402 (Ky. Ct. App. 1983); Secretary of Labor v. Irvin H. Whitehouse & Sons, 977 S.W.2d 250, 1998 Ky. App. LEXIS 76 (Ky. Ct. App. 1998).

338.062. Occupational safety and health standards — Capped at federal standards — Exemption for public employees.

After July 1, 2021, neither the Kentucky Occupational Safety and Health Standards Board nor the secretary shall adopt or promulgate any occupational safety and health administrative regulation that is more stringent than the corresponding federal provision enforced by the United States Department of Labor under the Occupational Safety and Health Act of 1970. Whereas the Occupational Safety and Health Act of 1970 does not apply to public employees, the cabinet shall retain the authority to promulgate and enforce, as necessary, administrative regulations pertaining to public employees.

HISTORY: 2021 ch. 162, § 1, effective June 29, 2021.

338.070. Suction and exhaust system for buffing and grinding machinery. [Repealed.]

Compiler’s Notes.

This section (2062f-1) was repealed by Acts 1972, ch. 251, § 22 and by Acts 1972, ch. 326, § 4.

338.071. Kentucky Occupational Safety and Health Review Commission — Membership — Terms — Quorum — Hearings — Regulations — Compensation — Employees.

  1. There is hereby established the Kentucky Occupational Safety and Health Review Commission consisting of three (3) members appointed by the Governor on the basis of their experience and competence in the fields of occupational safety and health. The members selected shall be qualified to represent the interest of employers, employees, and the occupational safety and health profession with a minimum of five (5) years experience in their respective fields.
  2. Members of the review commission shall serve terms of four (4) years and until their successors are appointed.
  3. The review commission shall hold monthly meetings and additional meetings as deemed necessary. A majority of the review commission constitutes a quorum for the transaction of business. Special meetings of the review commission may be called upon reasonable notice by the commissioner or by any two (2) members of the commission.
  4. The review commission shall hear and rule on appeals from citations, notifications, and variances issued under the provisions of this chapter and adopt and promulgate rules and regulations with respect to the procedural aspect of its hearings.
  5. The review commission shall have the authority to employ a secretary, hearing officers, and other employees as may become necessary.
  6. The chairman of the commission and each of the other two (2) members shall be paid a salary fixed under KRS 64.640 .
  7. The secretary of the commission shall be paid a salary to be fixed by the commission, with the approval of the Governor. The commission shall fix the compensation of all its other employees.
  8. The commissioners and the secretary and employees of the commission are entitled to all necessary expenses incurred in traveling on business of the commission.
  9. The commission shall be attached to the Labor Cabinet for administrative purposes only.

History. Enact. Acts 1972, ch. 251, § 8; 2005, ch. 123, § 38, effective June 20, 2005; 2010, ch. 24, § 1755, effective July 15, 2010.

NOTES TO DECISIONS

1.Authority.

The Kentucky Occupational Safety and Health Review Commission is the ultimate decision-maker in occupational safety and health cases and may either hear cases themselves or hire hearing officers to serve in its place; however, the final authority rests with the Commission, and the Commission is not bound by the decision of the hearing officer. Secretary of Labor v. Boston Gear, Inc., 25 S.W.3d 130, 2000 Ky. LEXIS 89 ( Ky. 2000 ).

Circuit court erred in affirming a decision of the Kentucky Occupational Safety and Health Review Commission (Tribunal) because the Tribunal acted outside its role as a neutral administrative arbiter; the Tribunal relied on a regulation the Kentucky Occupational Safety and Health Standards Board never endorsed, and thus, it effectively expanded the kinds of complaints protected by the Kentucky Occupational Safety and Health Act which was a usurpation of the Board's policy-making authority. Estill County Fiscal Court v. Commonwealth, 2015 Ky. App. LEXIS 24 (Ky. Ct. App. Feb. 27, 2015, sub. op., 2015 Ky. App. Unpub. LEXIS 865 (Ky. Ct. App. Feb. 27, 2015).

Cited:

A & H Truck Line, Inc. v. Kentucky Occupational Safety & Health Review Com., 536 S.W.2d 315, 1976 Ky. LEXIS 70 ( Ky. 1976 ).

Opinions of Attorney General.

This section and KRS 338.081 and 338.091 seem to make adequate provision for due process in the enforcement of provisions of the Occupational Safety and Health Act. OAG 72-523 .

The Kentucky Occupational Safety and Health Review Commission (KOSHRC), is an exclusively quasi-judicial body and is not subject to the Open Meetings Law; however, its hearings must be open to the public when it is receiving evidence but after a hearing it may deliberate in private as a jury would. OAG 83-259 .

There is nothing in this section and KRS 338.081 or related statutes that would prohibit a member of the occupational safety and health review commission or any employee thereof, whether under contract or otherwise, from becoming a candidate for public office and at the same time retaining his position; this being the case, there is no constitutional or statutory objection to a hearing officer appointed by the commission pursuant to KRS 338.081 from becoming a candidate for nomination and election to the office of state representative. OAG 84-103 .

Upon review of this section and KRS 64.640 , as well as of KRS 18A.350 , 18A.355 , and 18A.360 (now repealed), the incumbents of the Occupational Safety Health and Review Commission are included under the language of KRS 18A.350 which defines employee as any officer or employee of the executive branch of government; therefore, it would appear that the members of the Occupational Safety Health and Review Commission are eligible for annual increments, although it is entirely possible that this was not the intent of the legislature. OAG 90-25 .

Research References and Practice Aids

Kentucky Bench & Bar.

Waddell, Kentucky Occupational Safety and Health Practice, Vol. 45, No. 2, April 1981, Ky. Bench & Bar 24.

338.080. Hoods—Suction and exhaust pipes. [Repealed.]

Compiler’s Notes.

This section (2062f-1 to 2062f-3) was repealed by Acts 1972, ch. 251, § 22 and by Acts 1972, ch. 326, § 4.

338.081. Hearing officer — Employment — Powers.

  1. Hearings authorized by the provisions of this chapter may be conducted by a hearing officer appointed by the review commission to serve in its place. Said hearing officer may be a full-time employee, serve by contract, or be paid on a per diem basis at the discretion of the review commission.
  2. In the conduct of these hearings, the review commission or hearing officer may subpoena and examine witnesses, require the production of evidence, administer oaths, and take testimony and depositions.
  3. After hearing an appeal, the review commission may sustain, modify or dismiss a citation or penalty.

History. Enact. Acts 1972, ch. 251, § 9.

NOTES TO DECISIONS

1.Authority.

The Kentucky Occupational Safety and Health Review Commission is the ultimate decision-maker in occupational safety and health cases and may either hear cases themselves or hire hearing officers to serve in its place; however, the final authority rests with the Commission, and the Commission is not bound by the decision of the hearing officer. Secretary of Labor v. Boston Gear, Inc., 25 S.W.3d 130, 2000 Ky. LEXIS 89 ( Ky. 2000 ).

Opinions of Attorney General.

There is nothing in KRS 338.071 and this section or related statutes that would prohibit a member of the occupational safety and health review commission or any employee thereof, whether under contract or otherwise, from becoming a candidate for public office and at the same time retaining his position; this being the case, there is no constitutional or statutory objection to a hearing officer appointed by the commission pursuant to this section from becoming a candidate for nomination and election to the office of state representative. OAG 84-103 .

338.090. Fans — Suction required. [Repealed.]

Compiler’s Notes.

This section (2062f-4) was repealed by Acts 1972, ch. 251, § 22 and by Acts 1972, ch. 326, § 4.

338.091. Appeals — Procedure.

  1. Any party adversely affected or aggrieved by a final order of the review commission may appeal within thirty (30) days to the Franklin Circuit Court on the record for a review of such order. No new evidence may be introduced in the Circuit Court. An appeal may be taken to the Court of Appeals from any decision of the Circuit Court under this section.
  2. The commencement of proceedings under this section shall not, unless ordered by the court, operate as a stay of an order of the review commission.

History. Enact. Acts 1972, ch. 251, § 10.

NOTES TO DECISIONS

Analysis

1.Order Final by Operation of Law.

Where Occupational Safety and Health Review Commission failed to take action on its hearing officer’s decision within 40 days, this resulted in the decision becoming final by operation of law; later order of Commission that purported to grant petition for review had no legal effect; there was no statutory provision authorizing the Commission to reconsider its final decision or to extend the period of time for taking an appeal of its final order. Elliot Electric/Kentucky, Inc. v. Ky. OSHRC, 323 S.W.3d 373, 2010 Ky. App. LEXIS 172 (Ky. Ct. App. 2010).

Where Occupational Safety and Health Review Commission failed to take action on its hearing officer’s decision within 40 days, this resulted in the decision becoming final by operation of law; later order of Commission that purported to grant petition for review had no legal effect, notwithstanding regulatory provisions which permitted any party aggrieved by a final order of the commission to file a motion for stay, since the regulations did not confer any authority upon the Commission to modify or alter its final order. Elliot Electric/Kentucky, Inc. v. Ky. OSHRC, 323 S.W.3d 373, 2010 Ky. App. LEXIS 172 (Ky. Ct. App. 2010).

2.Equitable Tolling.

Doctrine of equitable tolling did not apply to suspend running of 30 day period for aggrieved party to file appeal to Franklin Circuit Court where, after Commission initially failed to take action on its hearing officer’s decision within 40 day period, a later order of Occupational Safety and Health Review Commission purported to grant petition for review. Elliot Electric/Kentucky, Inc. v. Ky. OSHRC, 323 S.W.3d 373, 2010 Ky. App. LEXIS 172 (Ky. Ct. App. 2010).

Notes to Unpublished Decisions

1.Stay.

Unpublished decision: Employer’s motion for reconsideration, which was filed with the Kentucky Occupational Safety and Health Review Commission after it had rendered its final order, did not stay the 30-day period allowed for an appeal under KRS 338.091(1); given the procedural history of the case, nothing in KRS ch. 338 specifically conferred upon the Commission the power to reconsider or reopen a final order that it had issued. Gaines v. Ky. OSHRC, 326 S.W.3d 818, 2010 Ky. App. LEXIS 71 (Ky. Ct. App. 2010).

Research References and Practice Aids

Kentucky Bench & Bar.

Waddell, Kentucky Occupational Safety and Health Practice, Vol. 45, No. 2, April 1981, Ky. Bench & Bar 24.

338.100. Commissioner to enforce laws—Inspections. [Repealed.]

Compiler’s Notes.

This section (1599c-18, 2062f-5) was repealed by Acts 1972, ch. 251, § 22 and by Acts 1972, ch. 326, § 4.

338.101. Authority of commissioner.

  1. In order to carry out the purposes of this chapter, the commissioner or the commissioner’s authorized representative shall have the authority:
    1. To enter without delay and advance notice any place of employment during regular working hours and at other reasonable times in order to inspect such places, question privately any such employer, owner, operator, agent, employee, or employee’s representative, and investigate such facts, conditions, practices, or matters deemed appropriate to determine the cause of, or to prevent the occurrence of, any occupational injury or illness.
    2. To administer oaths, take depositions, conduct hearings, take photographs, review any and all accident and illness records, and secure any other evidence deemed necessary to evaluate any occupational safety and health hazard in order to ascertain whether any person has violated any provision of this chapter or regulations issued pursuant thereto.
  2. If an employer refuses such entry, then the commissioner may apply to the Franklin Circuit Court for an order to enforce the right of entry.

History. Enact. Acts 1972, ch. 251, § 11; 2010, ch. 24, § 1756, effective July 15, 2010.

NOTES TO DECISIONS

1.Construction.

Subsection (2) of this section is not in conflict with KRS 24A.110(1) as the latter statute deals exclusively with the jurisdiction of district court in criminal matters. Stovall v. A. O. Smith Corp., 676 S.W.2d 475, 1984 Ky. App. LEXIS 501 (Ky. Ct. App. 1984).

Subsection (2) of this section vests exclusive jurisdiction in the Franklin County Circuit to issue a search warrant to enforce the right of entry of the commissioner to conduct inspections in business not otherwise excluded by KRS 338.021 . Stovall v. A. O. Smith Corp., 676 S.W.2d 475, 1984 Ky. App. LEXIS 501 (Ky. Ct. App. 1984).

2.Health and Safety Inspections.

In the absence of any showing that a tractor company was inherently dangerous, was subject to federal or state regulation or licensing, was pervasively regulated or was an industry with a long history of regulation, a health and safety inspection of the closed area of the premises would not be permitted without a search warrant or court order, either of which must be based upon a showing of probable cause. Yocom v. Burnette Tractor Co., 555 S.W.2d 823, 1977 Ky. App. LEXIS 803 (Ky. Ct. App. 1977), aff'd, 566 S.W.2d 755, 1978 Ky. LEXIS 365 ( Ky. 1978 ).

The probable cause requirement for inspection may be satisfied by demonstrating that the place to be inspected is of the general type due for inspection under statutory or administrative standards setting up categories of places subject to inspection and bearing a rational connection to the goal sought to be achieved by the Kentucky Occupational Health and Safety Act and a showing of “reasonable ground of suspicion of violation” in the particular premises is not required before probable cause to inspect is deemed satisfied. Yocom v. Burnette Tractor Co., 566 S.W.2d 755, 1978 Ky. LEXIS 365 ( Ky. 1978 ).

The U.S. Const., Amend. 4 and Ky. Const., § 10 require a search warrant or court order “based upon a showing of probable cause” to permit a search and inspection by state inspection officials of the closed areas of business premises whose health and safety conditions are statutorily regulated in the absence of any showing that the business is inherently dangerous, or in the absence of any showing that their business was subject to federal or state regulation and/or license, or pervasively regulated or an industry with a long history of regulation. Yocom v. Burnette Tractor Co., 566 S.W.2d 755, 1978 Ky. LEXIS 365 ( Ky. 1978 ).

A county Circuit Court lacked jurisdiction to quash three (3) search warrants, and the corporations whose premises were searched pursuant to the warrants were required to exhaust their administrative remedies. Kentucky Labor Cabinet v. Graham, 43 S.W.3d 247, 2001 Ky. LEXIS 65 ( Ky. 2001 ), overruled in part, Hoskins v. Maricle, 150 S.W.3d 1, 2004 Ky. LEXIS 196 ( Ky. 2004 ).

3.Administrative Appeals.

The Kentucky Occupational Safety and Health Review Commission has authority to remand an administrative appeal to a hearing officer to renew or continue taking evidence. Secretary of Labor v. Boston Gear, Inc., 25 S.W.3d 130, 2000 Ky. LEXIS 89 ( Ky. 2000 ).

Cited:

A & H Truck Line, Inc. v. Kentucky Occupational Safety & Health Review Com., 536 S.W.2d 315, 1976 Ky. LEXIS 70 ( Ky. 1976 ); Richmond v. Commonwealth, 637 S.W.2d 642, 1982 Ky. LEXIS 288 ( Ky. 1982 ).

Opinions of Attorney General.

The term “question privately” in subdivision (1)(a) of this section, makes any statement taken from an employee, or other person authorized to be questioned by the statute, confidential and, as such, it is exempt from mandatory public disclosure by KRS 61.878(1)(j) (now (1)(l)); accordingly, the Department of Labor properly denied inspection of the statements of witnesses, taken in private interviews, concerning the fatal injury of a worker. OAG 82-192 .

Inspection of witness statements made by employees to a compliance officer of the department of labor concerning a fatality at a construction company was properly denied under the Open Records Law. OAG 83-5 .

Statements of witnesses to a fatal construction accident taken in private interviews by officials from the department of labor are exempt from mandatory public disclosure by KRS 61.878(1)(j) (now (1)(l)); the mere fact that two pages of a four (4) page statement by one (1) of the witnesses were mistakenly included in papers released to an attorney, did not estop the department of labor from refusing to release the other two (2) pages of the statement. OAG 83-140 .

The compliance officer’s worknotes and the two (2) employee statements made during an investigation of an accident were exempt from public inspection as “preliminary” under KRS 61.878(1)(g) and (1)(h) (now (1)(i) and (j)). OAG 84-275 .

Disclosure of employee interview statements included in records involving Labor Cabinet report relative to incident involving death of employee made under subdivision (1)(a) of this section were confidential and exempt from mandatory disclosure under KRS 61.878(1)(j) (now (1)(l)). OAG 84-345 .

The term “question privately” in subdivision (1)(a) of this section makes any statement taken from an employee confidential and, therefore, exempt from mandatory public disclosure by KRS 61.878(1)(j) (now (1)(l)). OAG 84-365 ; OAG 85-58 .

Even if a settlement has been reached relative to Occupational Safety and Health Administration charges, material which was excluded from public inspection pursuant to KRS 61.878(1)(g), (h) and (j) (now (1)(i), (j) and (l)) and subdivision (1)(a) of this section may still be excluded in the absence of a court order to the contrary, as the status of this material as preliminary matters and confidential interviews will not change regardless of what happens relative to any charges which might have been filed. OAG 85-58 .

The Labor Cabinet acted in conformity with the Open Records Law in denying access to records in an occupational safety and health investigative file consisting of a compliance officer’s worknotes and six (6) employee interview statements relating to a sewer man-hole accident. OAG 85-123 .

Subdivision (1)(a) of KRS 61.878 is not limited to the prevention of inspection by the employer of the interview statements of his own employees; it precludes the public inspection of any employee interview statement obtained under the provisions of this section. OAG 85-142 .

The term “question privately” in subdivision (1)(a) of this section makes any statement taken from an employee confidential and, therefore, exempt from mandatory public disclosure by KRS 61-878(1)(j) (now (1)(l)). OAG 85-142 ; 85-146; 86-3.

The Labor Cabinet’s denial of the request to furnish the names of the employees from whom the Labor Cabinet obtained statements pursuant to subdivision (1)(a) of this section proper under subdivision (1)(j) (now (1)(l)) of KRS 61.878 of the Open Records Act and subdivision (1)(a) of this section. OAG 86-3 .

Denial of the request to inspect the compliance officer’s worknotes and the three (3) employee interview statements in the occupational safety and health investigative file was proper under the Open Records Law pursuant to subdivisions (1)(g), (h) and (j) of KRS 61.878 (now subdivisions (1)(i), (j) and (l)) and subdivision (1)(a) of this section. OAG 86-14 .

The denial of inspection of the records in the occupational safety and health investigative files consisting of the compliance officer’s worknotes and the five (5) employee interview statements was proper under the Open Records Law pursuant to subdivisions (1)(g), (h) and (j) of KRS 61.878 (now subdivisions (1)(i), (j) and (l)) and subdivision (1)(a) of this section. OAG 86-27 .

Denial of inspection of the compliance officer’s worknotes and the employee interview statement was proper under the Open Records Law pursuant to subdivisions (1)(g), (h), and (j) of KRS 61.878 (now subdivisions (1)(i), (j) and (l)) and subdivision (1)(a) of this section. OAG 86-37 .

The Labor Cabinet’s refusal to permit the requesting party to inspect and copy two (2) employee interview statements obtained in connection with an occupational safety and health investigation of a fatal accident at a work site was proper under subdivision (1)(a) of this section and subdivision (1)(j) of KRS 61.878 . OAG 86-57 .

Denial of the request to inspect and copy the compliance officer’s worknotes and the employee interview statements was proper under the Open Records Law pursuant to subdivisions (1)(g), (h) and (j) of KRS 61.878 (now subdivisions (1)(i), (j) and (l)) and subdivision (1)(a) of this section. OAG 87-9 .

Denial of the request to inspect and copy the occupational safety and health compliance officer’s worknotes and the twelve employee interview statements was proper under subdivisions (1)(g), (h) and (j) of KRS 61.878 (now subdivisions (1)(i), (j) and (l)) and subdivision (1)(a) of this section; furthermore, a public agency is not mandatorily required to furnish copies of records to a requesting party by mail when the requesting party has not first inspected those records and then selected the items he or she wants copied, particularly when numerous or lengthy records and documents are involved. OAG 87-68 .

Denial of inspection of the compliance officer’s worknotes and the two (2) employee interview statements was proper under subdivisions (1)(g), (h), and (j) of KRS 61.878 (now subdivisions (1)(i), (j) and (l)) of the Open Records Act and subdivision (1)(a) of this section. OAG 87-79 .

The Labor Cabinet’s denial of the request to inspect the compliance officer’s worknotes and the three (3) employee interview statements was justified under the Open Records Law pursuant to subdivisions (1)(g), (h), and (j) of KRS 61.878 (now subdivisions (1)(i), (j) and (l)) of the Open Records Act and subdivision (1)(a) of this section. OAG 88-9 .

The term “question privately” makes any statement taken from an employee, in the context of an occupational safety and health investigation under this section, confidential and, therefore, exempt from mandatory public disclosure. OAG 88-67 .

The Labor Cabinet’s denial of the request to inspect four (4) employee interview statements, in an occupational safety and health file regarding an investigation of two (2) deaths, was justified pursuant to subdivision (1)(j) of KRS 61.878 (now (1)(l)) of the Open Records Act and subdivision (1)(a) of this section. OAG 89-10 .

Where a person makes, to the Kentucky Labor Cabinet, a complaint that results in an OSHA inspection, this differs from an employee making a statement in response to questioning during an OSHA inspection, and subdivision (1)(a) of this section and KRS 61.878(1)(j) (now (1)(l)) do not properly apply in support of a denial of the target employer’s request for information concerning the source of the complaint. OAG 89-52 .

An employee interview statement is exempt from release by subsection (1) of this section and KRS 61.878(1)(j) (now (1)(l)). OAG 89-64 .

An occupational safety and health compliance officer’s worknotes generated in the course of an investigation of a work site, and containing preliminary drafts of possible citations, along with the compliance officer’s observations and opinions, may properly be withheld under authority of KRS 61.878(1)(i) and (j). OAG 02-ORD-157.

Employee interview statements that were obtained by a compliance officer under authority of KRS 338.101(1)(a), and that are located in the investigative file, are excluded from the mandatory disclosure provisions of the Open Records Act by operation of KRS 61.878(1)(l). OAG 02-ORD-157.

Employee interview statements that were obtained by a compliance officer under authority of KRS 338.101(1)(a), and that are located in the investigative file, are excluded from the mandatory disclosure provisions of the Open Records Act by operation of KRS 61.878(1)(l). OAG 03-ORD-72.

The Environmental and Public Protection Cabinet, Department of Labor, did not violate the Open Records Act in denying requests for inspection reports, documents, photographs, and/or videos pertaining to inspections at a manufacturing facility and properly redacted information identifying employees pursuant to KRS 338.101(1)(a), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Further, because the file relating to another inspection contains records that were compiled in the process of detecting statutory or regulatory violations which contain information, the premature disclosure of which could jeopardize a prospective administrative adjudication, the Department properly denied a request as to those records on the basis of KRS 61.878(1)(h). OAG 05-ORD-168.

Research References and Practice Aids

Kentucky Bench & Bar.

Waddell, Kentucky Occupational Safety and Health Practice, Vol. 45, No. 2, April 1981, Ky. Bench & Bar 24.

Northern Kentucky Law Review.

Comments, The Fourth Amendment and the Administrative Search, 5 N. Ky. L. Rev. 219 (1978).

338.110. Seats to be provided for female employes. [Repealed.]

Compiler’s Notes.

This section (4866b-3) was repealed by Acts 1972, ch. 251, § 22.

338.111. Employer and employee representation.

A representative of the employer and a representative authorized by the employees shall be given an opportunity to accompany the representative of the commissioner during the physical inspection of any place of employment as authorized by KRS 338.101 . If there is no authorized employee representative available at the time of inspection, the commissioner’s representative shall consult with a reasonable number of employees concerning matters of occupational safety and health in the place of employment. The representative of the commissioner shall be in full charge of the inspection, including the right to limit the number of representatives on the inspection team.

History. Enact. Acts 1972, ch. 251, § 12; 2010, ch. 24, § 1757, effective July 15, 2010.

NOTES TO DECISIONS

1.Citation Not Void.

Citation against a subcontractor working on a multi-employer work site under the Kentucky Occupational Safety and Health Act (KOSHA), KRS 338.011 et seq., was not void for a failure to comply with KRS 338.111 as the subcontractor did not show prejudice, was no longer on site when the inspection was conducted, and would have required advance notice, which would have defeated the purpose of KOSHA; the primary contractor was afforded the opportunity to attend the opening conference and walk around inspection. Dep't of Labor v. Hayes Drilling, Inc., 354 S.W.3d 131, 2011 Ky. App. LEXIS 146 (Ky. Ct. App. 2011).

Research References and Practice Aids

Kentucky Bench & Bar.

Waddell, Kentucky Occupational Safety and Health Practice, Vol. 45, No. 2, April 1981, Ky. Bench & Bar 24.

338.120. Toilet and dressing rooms to be provided for employees. [Repealed.]

Compiler’s Notes.

This section (4866b-4) was repealed by Acts 1972, ch. 251, § 22.

338.121. Request for inspection — Discrimination against employee prohibited — Recourse.

  1. Any employee, or representative of employees, who believes that a violation of an occupational safety and health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice to the commissioner of such violation or danger. Any such notice shall be reduced to writing, shall set forth with reasonable particularity the grounds for the notice, and shall be signed by the employees or representative of employees, and a copy shall be provided the employer or the employer’s agent no later than at the time of inspection, except that, upon the request of the person giving such notice, his or her name and the names of individual employees referred to therein shall not appear in such copy.
  2. If upon receipt of notification, reasonable grounds are believed to exist for such violation or danger, then a special inspection shall be made in accordance with the provisions of KRS 338.101 and 338.111 . If no reasonable grounds are believed to exist for such violation of danger, then the commissioner shall notify the employee or the representative of the employees in writing of such determination.
    1. No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or herself or others of any right afforded by this chapter; and (3) (a) No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or herself or others of any right afforded by this chapter; and
    2. Any employee who believes that he or she has been discharged or otherwise discriminated against by any person in violation of this subsection may, within a reasonable time after such violation occurs, file a complaint with the commissioner alleging such discrimination. Upon receipt of such complaint, the commissioner shall cause such investigation to be made as deemed appropriate. If upon such investigation, the commissioner determines that the provisions of this subsection have been violated, he or she shall issue a citation to the employer which may be challenged or contested in accordance with the provisions of this chapter and the review commission may order all appropriate relief including rehiring and reinstatement of the employee to his or her former position with back pay. Upon an initial determination by the commissioner that an employee has been discharged by an employer in violation of subsection (3)(a) of this section, the secretary of the Labor Cabinet may order reinstatement of the employee pending a final determination and order of the review commission.

History. Enact. Acts 1972, ch. 251, § 13; 1986, ch. 177, § 1, effective July 15, 1986; 1992, ch. 134, § 1, effective July 14, 1992; 2010, ch. 24, § 1758, effective July 15, 2010.

NOTES TO DECISIONS

Analysis

1.Preemption of Wrongful Discharge Claims.

Since both the federal OSHA statute, 29 USCS § 660(c), and this section create a public policy exception by prohibiting termination or discrimination against employees who refuse to violate the statutes, and since both statutes provide a structure for employees to pursue when alleging violations, the statutes preempt wrongful discharge claims based on OSHA. Hines v. Elf Atochem N. Am., 813 F. Supp. 550, 1993 U.S. Dist. LEXIS 1622 (W.D. Ky. 1993 ).

2.Wrongful Discharge.

Kentucky authorities had jurisdiction under KRS 338.121 over the wrongful discharge claim of a pesticide worker who filed a complaint with the Kentucky Secretary of Labor alleging state law violation; the Kentucky Occupational Safety and Health Review Commission correctly concluded that the worker’s mother’s phone call to the Occupational Safety and Health Administration on the worker’s behalf was a protected activity and that the worker’s employer terminated the worker because the worker engaged in a protected activity. Terminix Int'l v. Sec'y of Labor, 92 S.W.3d 743, 2002 Ky. App. LEXIS 2340 (Ky. Ct. App. 2002).

In determining whether a violation of KRS 338.121 occurred, Kentucky Occupational Safety and Health Review Commission correctly utilized the procedure set forth in Mt. Healthy Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977); once the Secretary has established a prima facie case, the employer must show by a preponderance of the evidence that it would have taken the same action in the absence of the protected activity. Secretary of Labor v. Boston Gear, Inc., 25 S.W.3d 130, 2000 Ky. LEXIS 89 ( Ky. 2000 ).

In determining whether a violation of KRS 338.121 occurred, Kentucky Occupational Safety and Health Review Commission correctly utilized the procedure set forth in Mt. Healthy Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977); once the Secretary has established a prima facie case, the employer must show by a preponderance of the evidence that it would have taken the same action in the absence of the protected activity. Secretary of Labor v. Boston Gear, Inc., 25 S.W.3d 130, 2000 Ky. LEXIS 89 ( Ky. 2000 ).

Substantial evidence supported Kentucky Occupational Safety and Health Review Commission decision that two employees were terminated for complaining to OSHA, though one of the employees did not in fact file a complaint; although employer claimed the employees were terminated for troubled work histories, they had worked for employer for 5 years and 11 years respectively, both employees were terminated within months of the complaint, and further, employer did not follow its own personnel policy of issuing one-day “decision making leave” (DML) prior to termination. Secretary of Labor v. Boston Gear, Inc., 25 S.W.3d 130, 2000 Ky. LEXIS 89 ( Ky. 2000 ).

3.Authority.

Circuit court erred in affirming a decision of the Kentucky Occupational Safety and Health Review Commission (Tribunal) because the Tribunal acted outside its role as a neutral administrative arbiter; the Tribunal relied on a regulation the Kentucky Occupational Safety and Health Standards Board never endorsed, and thus, it effectively expanded the kinds of complaints protected by the Kentucky Occupational Safety and Health Act which was a usurpation of the Board's policy-making authority. Estill County Fiscal Court v. Commonwealth, 2015 Ky. App. LEXIS 24 (Ky. Ct. App. Feb. 27, 2015, sub. op., 2015 Ky. App. Unpub. LEXIS 865 (Ky. Ct. App. Feb. 27, 2015).

4.Complain.

Based on persuasive federal authority and case law from the Court of Appeals of Kentucky, a hearing officer and the Kentucky Occupational Safety and Health Review Commission reasonably interpreted the word “complain” as encompassing an employee-to-employer letter, and as a result, although not required, that interpretation was given deference as it was not only reasonable, but also in accord with the purpose of the Kentucky Occupational Safety and Health Act. Ky. OSHRC v. Estill Cnty. Fiscal Court & Secy. of Labor, 503 S.W.3d 924, 2016 Ky. LEXIS 559 ( Ky. 2016 ).

Notes to Unpublished Decisions

Analysis

1.Preemption of Wrongful Discharge Claims.

Unpublished decision: Former employee’s suit was properly dismissed because the Kentucky Occupational Safety and Health Act (KOSHA), KRS 338.010 et seq. had preempted other law with regard to the employee’s wrongful discharge claim; the employee’s sole avenue for relief was to pursue his claims pursuant to the procedures outlined in the KOSHA because: (1) a suit could be brought pursuant to KRS 446.070 , which allowed a person injured by a statutory violation to recover damages, only if the statute at issue was penal in nature or where, by its terms, the statute did not prescribe a remedy for its violation; (2) the KOSHA provided remedies for wrongful discharges, which was the wrong claimed by the employee as the basis for his suit; and (3) the employee was limited to the remedies provided by the KOSHA because that statute outlined the procedures for obtaining relief against wrongful, retaliatory discharges by employers and gave the Kentucky Occupational Safety and Health Review Commission authority to provide all appropriate relief, including compensatory and punitive damages. Maiden v. N. Am. Stainless, L.P., 125 Fed. Appx. 1, 2004 U.S. App. LEXIS 25998 (6th Cir. Ky. 2004 ).

2.Wrongful Discharge.

Unpublished decision: Where: (1) a former employee asserted that he was wrongfully terminated after supplying pictures of mining equipment to another employee for the second employee’s workers’ compensation claim, (2) the former employee did not offer any argument that he was discharged for refusing to violate a law in the course of his employment, and (3) the former employee did not argue that his discharge was because he exercised a right well-established through legislation, KRS 338.121(3)(a), 338.121(3)(b), and 351.193 , which the former employee cited in support of his public-policy argument, conferred no such a right. Hall v. Consol of Kentucky, 162 Fed. Appx. 587, 2006 FED App. 0063N, 2006 U.S. App. LEXIS 1711 (6th Cir. Ky. 2006 ).

Opinions of Attorney General.

Both the history of the Kentucky occupational safety and health statutes and the requirements of the federal Occupational Safety and Health Act of 1970 authorizing a state to submit an approved plan indicate an intent to cover state, municipal, and other political subdivision employees under the state act, and civil penalties may be assessed against such entities. OAG 75-161 .

Research References and Practice Aids

Northern Kentucky Law Review.

Kentucky Survey Issue: Article: Off-Duty Privacy: How Far Can Employers Go?, 37 N. Ky. L. Rev. 287 (2010).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Employment Discrimination, § 284.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Kentucky Occupational Safety and Health, § 286.00.

ALR

Liability for retaliation against at will employee for public complaints or efforts relating to health or safety. 75 A.L.R.4th 13.

Discrimination against, or discharge of employee because of exercise of right afforded by OSHA, under 29 USCS § 660(c)(1). 66 A.L.R. Fed. 650.

338.130. Copy of law to be posted — Enforcement. [Repealed.]

Compiler’s Notes.

This section (1599c-16, 4866b-6) was repealed by Acts 1972, ch. 251, § 22.

338.131. Abatement of danger — Commissioner may apply for injunction.

  1. Whenever an authorized representative of the commissioner determines that conditions in any place of employment are of an imminent danger which reasonably could be expected to cause death or serious physical harm, then he or she shall order the danger to be immediately abated. Any order issued under this section may require such steps to be taken as may be necessary to avoid, correct, or remove such imminent danger and prohibit the employment or presence of any individual in locations or under conditions where such imminent danger exists, except individuals whose presence is necessary to avoid, correct, or remove such imminent danger or to maintain the capacity of a continuous process operation to resume normal operations without a complete cessation of operations, or where a cessation of operations is necessary, to permit such to be accomplished in a safe and orderly manner.
  2. In the event the danger is not abated immediately, the commissioner shall apply to the Franklin Circuit Court for an order to restrain such condition or practice.

History. Enact. Acts 1972, ch. 251, § 14; 2010, ch. 24, § 1759, effective July 15, 2010.

338.133. Injunction to restrain operation of unsafe premises or equipment.

  1. If in the discretion of the commissioner it is believed that a place of employment, equipment, or practice is substantially dangerous to employees, or other persons, then the commissioner may apply to the Circuit Court in the county wherein the condition is located for a temporary injunction restraining the operation or segment of operation.
  2. The Circuit Court shall hear the application for the temporary injunction as soon as possible, irrespective of the regular court calendar.
  3. The commissioner shall not be required to post any bond or pay any court costs or fees with the filing of the application.

History. Enact. Acts 1972, ch. 326, § 2; 1980, ch. 188, § 263, effective July 15, 1980; 2010, ch. 24, § 1760, effective July 15, 2010.

338.140. Physician or surgeon for industrial plant — Selection of. [Repealed.]

Compiler’s Notes.

This section (4618-112) was repealed by Acts 1972, ch. 251, § 22.

338.141. Issuance of citation by commissioner — Additional time for compliance — Hearing.

  1. If upon inspection an authorized representative of the commissioner finds that an employer has violated any requirement of this chapter, a citation shall be issued to the employer. Each citation shall describe the alleged violation, establish the time period permitted for correction by fixing a reasonable date by which the alleged violation shall be eliminated, and propose the civil penalty to be paid. If within fifteen (15) working days from the receipt of the citation an employer, employee, or representative of the employees fails to notify the commissioner that he or she intends to contest the citation, then the citation shall be deemed a final order of the review commission and not be subject to review by any court or agency.
  2. The commissioner, upon determination that an employer is acting in good faith to correct the cited violation, may grant additional time for compliance upon application by the employer.
  3. If an employer, employee, or representative of the employees notifies the commissioner that he or she intends to challenge a citation issued under this section or under KRS 338.131 , the commissioner shall notify the review commission of such notification and the review commission shall afford an opportunity for a hearing.
  4. In the case of any review proceedings initiated by an employer, employee, or representative of the employees under this chapter, the time period permitted for correction of cited violations may be extended by the review commission.

History. Enact. Acts 1972, ch. 251, § 15; 1972 (1st Ex. Sess.), ch. 7, § 1; 2010, ch. 24, § 1761, effective July 15, 2010.

NOTES TO DECISIONS

1.Abatement Requirements.

It was the Kentucky Occupational Safety and Health Act’s, KRS 338.011 et seq., purpose to prevent the first accident and recurring accidents, and where the citation acknowledged that the alleged violation had been eliminated on April 19, 2005, and a subcontractor was informed that abatement was not an issue, the requirements of KRS 338.141 were met. Dep't of Labor v. Hayes Drilling, Inc., 354 S.W.3d 131, 2011 Ky. App. LEXIS 146 (Ky. Ct. App. 2011).

Research References and Practice Aids

Kentucky Bench & Bar.

Waddell, Kentucky Occupational Safety and Health Practice, Vol. 45, No. 2, April 1981, Ky. Bench & Bar 24.

338.150. Counter-floors required in building construction in cities of the first and second classes. [Repealed.]

Compiler’s Notes.

This section (2741k-1) was repealed by Acts 1972, ch. 251, § 22.

338.151. Variances. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 251, § 16) was repealed by Acts 1974, ch. 311, § 4.

338.153. Applications for variances — Procedure for granting — Temporary order.

  1. Any affected employer may apply to the commissioner for a rule or order for a variance from a standard promulgated under this chapter. Affected employees shall be given notice of each such application and an opportunity to participate in a hearing. The commissioner shall issue such rule or order if he or she determines on the record, after opportunity for an inspection where appropriate and a hearing, that the proponent of the variance has demonstrated by a preponderance of the evidence that the conditions, practices, means, methods, operations, or processes used or proposed to be used by an employer will provide employment and places of employment to his or her employees which are as safe and healthful as those which would prevail if he or she complied with the standard. The rule or order so issued shall prescribe the conditions the employer must maintain, and the practices, means, methods, operations, and processes which he or she must adopt and utilize to the extent they differ from the standard in question. Such a rule or order may be modified or revoked upon application by an employer, employees, or by the commissioner of his or her own motion, in the manner prescribed for its issuance under this subsection at any time after six (6) months from its issuance.
    1. Any employer may apply to the commissioner for a temporary order granting a variance from a standard or any provision thereof promulgated under this section. Such temporary order shall be granted only if the employer files an application which meets the requirements of paragraph (b) of this subsection and establishes that: (2) (a) Any employer may apply to the commissioner for a temporary order granting a variance from a standard or any provision thereof promulgated under this section. Such temporary order shall be granted only if the employer files an application which meets the requirements of paragraph (b) of this subsection and establishes that:
      1. He or she is unable to comply with the standard by its effective date because of unavailability of professional or technical personnel or of materials and equipment needed to come into compliance with the standard or because necessary construction or alteration of facilities cannot be completed by the effective date;
      2. He or she is taking all available steps to safeguard his or her employees against the hazards covered by the standard; and
      3. He or she has an effective program for coming into compliance with the standard as quickly as practicable.

        Any temporary order issued under this subsection shall prescribe the practices, means, methods, operations, and processes which the employer must adopt and use while the order is in effect and state in detail his or her program for coming into compliance with the standard. Such a temporary order may be granted only after notice to employees and an opportunity for a hearing; provided, that the commissioner may issue one (1) interim order to be effective until a decision is made on the basis of the hearing. No temporary order may be in effect for longer than the period needed by the employer to achieve compliance with the standard or one (1) year, whichever is shorter, except that such an order may be renewed not more than twice:

      1. So long as the requirements of this subsection are met; and
      2. If an application for renewal is filed at least ninety (90) days prior to the expiration date of the order. No interim renewal of an order may remain in effect for longer than one hundred eighty (180) days.
    2. An application for a temporary order under this subsection shall contain:
      1. A specification of the standard or portion thereof from which the employer seeks a variance;
      2. A representation by the employer, supported by representations from qualified persons having firsthand knowledge of the facts represented, that he or she is unable to comply with the standard or portion thereof and a detailed statement of the reasons therefor;
      3. A statement of the steps he or she has taken and will take (with specific dates) to protect employees against the hazard covered by the standard;
      4. A statement of when he or she expects to be able to comply with the standard and what steps he or she has taken and what steps he or she will take (with dates specified) to come into compliance with the standard; and
      5. A certification that he or she has informed his or her employees of the application by giving a copy thereof to their authorized representative, posting a statement giving a summary of the application and specifying where a copy may be examined at the place or places where notices to employees are normally posted, and by other appropriate means. A description of how employees have been informed shall be contained in the certification. The information to employees shall also inform them of their right to petition the commissioner for a hearing.
    3. The commissioner is authorized to grant a variance from any standard or portion thereof whenever he or she determines that such variance is necessary to permit an employer to participate in an experiment approved by him or her designed to demonstrate or validate new and improved techniques to safeguard the health or safety of workers.

History. Enact. Acts 1974, ch. 311, § 2; 1984, ch. 414, § 20, effective July 13, 1984; 2010, ch. 24, § 1762, effective July 15, 2010.

338.160. Safe scaffolding required in cities of the first and second classes. [Repealed.]

Compiler’s Notes.

This section (2741k-3, 2741k-4, 2741k-8) was repealed by Acts 1972, ch. 251, § 22.

338.161. Statistical records — Posting of notices.

  1. The Department of Workplace Standards shall develop and maintain a program of collection, compilation, and analysis of occupational safety and health statistics. Each employer shall make, keep and preserve, and make available to the commissioner and the Secretary of the United States Department of Labor or the Secretary of the United States Department of Health and Human Resources, such records regarding his or her activities relating to this chapter as may be prescribed by regulation.
  2. The Department of Workplace Standards shall also issue regulations requiring that employers, through posting of notices or other appropriate means, keep their employees informed of their protection and obligations under this chapter.

History. Enact. Acts 1972, ch. 251, § 17; 1972 (1st Ex. Sess.), ch. 7, § 2; 1984, ch. 414, § 21, effective July 13, 1984; 2005, ch. 123, § 39, effective June 20, 2005; 2010, ch. 24, § 1763, effective July 15, 2010.

338.170. Inspectors of scaffolding in cities of the first and second classes. [Repealed.]

Compiler’s Notes.

This section (2741k-5, 2741k-7) was repealed by Acts 1972, ch. 251, § 22.

338.171. Confidentiality of trade secrets.

All information obtained by the commissioner in connection with any inspection or proceeding under this chapter which might reveal a trade secret shall be considered confidential except that such information may be disclosed to those persons concerned with carrying out this chapter or when relevant in any proceedings under this chapter. In any such proceedings, the commissioner, review commission or courts shall issue such orders as may be appropriate to protect the confidentiality of trade secrets.

History. Enact. Acts 1972, ch. 251, § 18; 2010, ch. 24, § 1764, effective July 15, 2010.

338.180. Building inspection department and inspectors to formulate code—Adoption. [Repealed.]

Compiler’s Notes.

This section (2741k-6) was repealed by Acts 1972, ch. 251, § 22.

338.181. Powers of Department of Workplace Standards — Agreement with United States government.

The Department of Workplace Standards is empowered to administer the provisions of this chapter to employers, employees, and places of employment under the jurisdiction of the United States government pursuant to any agreement between the Commonwealth and the United States government. Pursuant to such agreement, the Department of Workplace Standards is empowered to make employer reports and data available to the United States government.

History. Enact. Acts 1972, ch. 251, § 20; 1984, ch. 414, § 22, effective July 13, 1984; 2005, ch. 123, § 40, effective June 20, 2005; 2010, ch. 24, § 1765, effective July 15, 2010.

NOTES TO DECISIONS

Cited:

A & H Truck Line, Inc. v. Kentucky Occupational Safety & Health Review Com., 536 S.W.2d 315, 1976 Ky. LEXIS 70 ( Ky. 1976 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Leathers, Civil Procedure, 65 Ky. L.J. 437 (1976-77).

338.190. Duties of inspectors. [Repealed.]

Compiler’s Notes.

This section (2741k-7) was repealed by Acts 1972, ch. 251, § 22.

338.191. Civil and criminal actions for violations brought by Attorney General.

It shall be the duty of the Attorney General, upon request of the commissioner, to bring all necessary civil or criminal actions for violations of the provisions of this chapter and to obtain injunctions against any person violating or threatening to violate any provisions of this chapter. The Attorney General may appoint special counsel to prosecute these claims. In the event special counsel is secured, all costs will be borne by the Labor Cabinet.

History. Enact. Acts 1972, ch. 251, § 21; 1984, ch. 414, § 23, effective July 13, 1984; 2010, ch. 24, § 1766, effective July 15, 2010.

NOTES TO DECISIONS

Cited:

A & H Truck Line, Inc. v. Kentucky Occupational Safety & Health Review Com., 536 S.W.2d 315, 1976 Ky. LEXIS 70 ( Ky. 1976 ).

338.195. Rebuttable presumption in asbestos cleanup lawsuits.

In any personal injury or property damage lawsuit arising from the cleanup of asbestos, the demonstration that acts or omissions of a party to the lawsuit during the party’s involvement in cleanup of asbestos were in accordance with generally accepted practice and state-of-the-art scientific knowledge and utilized the best technology reasonably available to the party at the time the asbestos cleanup was performed shall create a rebuttable legal presumption that the acts or omissions were not negligent.

History. Enact. Acts 1986, ch. 279, § 2, effective July 15, 1986.

Legislative Research Commission Note.

(1988). A technical correction has been made in this section by the Reviser of Statutes pursuant to KRS 7.136 .

338.200. Cost of medical examination or furnishing of records, employee not to pay. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 55, § 1, 2) was repealed by Acts 1972, ch. 251, § 22.

338.201. Lien on property of employer who violates provisions of chapter — Recording of lien.

  1. A lien may be placed on all property, both real and personal, of an employer who has violated any requirement of this chapter, if the citation issued by the commissioner has been upheld by a final order of the review commission, but not before all administrative and judicial appeals have been exhausted. The lien shall be in favor of the Labor Cabinet and shall be an amount totaling the penalties due, together with interest at a rate of twelve percent (12%) per annum from the date the order of the review commission is final, but not before all administrative and judicial appeals have been exhausted. The lien shall be attached to all property and rights to property owned or subsequently acquired by the employer. The commissioner or the commissioner’s designee shall record the lien as provided in subsection (2) of this section. The lien shall show the date on which the citation was issued, the date of the violation, the name and last known address of the employer against whom the assessment was made, and the amount of penalties and interest. The lien shall be superior to the lien of any mortgage or encumbrance thereafter created and shall continue for ten (10) years from the time of the recording, unless sooner released or otherwise discharged.
  2. The lien shall be filed in any of the following offices in which the employer owns property or rights to property and any filing fees associated with filing the lien shall be pursuant to KRS 64.012 :
    1. The office of the county clerk of the county in which the defendant employer resides.
    2. The office of the county clerk of the county in which the defendant employer has its principal place of business.
    3. The office of the county clerk of any county in which the defendant employer has property or an interest in property.

History. Enact. Acts 1994, ch. 128, § 1, effective July 15, 1994; 2006, ch. 255, § 25, effective January 1, 2007; 2010, ch. 24, § 1767, effective July 15, 2010.

338.990. Penalties. [Repealed.]

Compiler’s Notes.

This section (1599c-25, 2062f-6, 2741k-1 to 2741k-3, 4866b-7: amend. Acts 1950, ch. 55, § 3) was repealed by Acts 1972, ch. 251, § 22.

Legislative Research Commission Note.

This section was repealed by Acts 1972, ch. 251, § 22 and amended by Acts 1972, ch. 326. Since all statutes for which this section provided penalties were also repealed by Acts 1972, ch. 251, only the repealer has been given effect in this compilation.

338.991. Penalties.

  1. Any employer who willfully or repeatedly violates the requirement of any section of this chapter, including any standard, regulation, or order promulgated pursuant to this chapter, may be assessed a civil penalty of up to seventy thousand dollars ($70,000) for each violation, but not less than five thousand dollars ($5,000) for each willful violation.
  2. Any employer who has received a citation for a serious violation of the requirements of any section of this chapter, including any standard, regulation, or order promulgated pursuant to this chapter, shall be assessed a civil penalty of up to seven thousand dollars ($7,000) for each violation.
  3. Any employer who has received a citation for a violation of the requirements of any section of this chapter, including any standard, regulation, or order promulgated pursuant to this chapter, and such violation is specifically determined not to be of a serious nature, may be assessed a civil penalty of up to seven thousand dollars ($7,000) for each violation.
  4. Any employer who fails to correct a violation for which a citation has been issued within the period permitted for its correction may be assessed a civil penalty of up to seven thousand dollars ($7,000) for each day during which such failure or violation continues.
  5. Any employer found to be in violation of subsection (3) of KRS 338.121 shall be assessed a civil penalty of up to ten thousand dollars ($10,000) for each violation.
  6. The review commission shall have the authority to modify all civil penalties and fines provided for in this chapter. The review commission may, at its discretion, suspend the time period allotted for correction of a violation during the review of an appeal from the violation in question.
  7. All civil penalties and fines collected under the provision of this chapter shall be paid into the general fund.
  8. Any employer or individual who knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to this chapter shall, upon conviction, be punished by a fine of not more than ten thousand dollars ($10,000), or by imprisonment for not more than six (6) months, or by both.
  9. Any person who gives advance notice of any investigation or inspection to be conducted under this chapter, without authority from the commissioner, shall, upon conviction, be punished by a fine of not more than one thousand dollars ($1,000), or by imprisonment for not more than six (6) months, or by both.
  10. Any employer or individual who willfully causes bodily harm to any authorized representative of the commissioner while attempting to conduct an investigation or inspection under the provisions of this chapter, shall, upon conviction, be punished by a fine of not more than ten thousand dollars ($10,000), or by imprisonment for not more than one (1) year, or by both.
  11. As used in this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one (1) or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

History. Enact. Acts 1972, ch. 251, § 19; 1972 (1st Ex. Sess.), ch. 7, § 3; 1974, ch. 311, § 3; 1978, ch. 123, § 3, effective June 17, 1978; 1992, ch. 23, § 1, effective July 14, 1992; 2010, ch. 24, § 1768, effective July 15, 2010.

NOTES TO DECISIONS

1.Serious Violation.

Violation of safety regulations regarding fall protection equipment was properly found “serious” within meaning of Kentucky Occupational Safety and Health Act (KOSHA), where employer did not contest finding that workers were exposed without fall protection equipment, and it was substantially likely that a fall from the height of 42 feet would cause death or serious injury. DOL v. Morel Constr. Co., 359 S.W.3d 438, 443, 2011 Ky. App. LEXIS 56 (Ky. Ct. App. 2011).

To establish a prima facie case for either a serious, or “other than serious, Kentucky Occupational Safety and Health Act (KOSHA) violation under the special duty clause of KRS 338.031(1)(b), the Labor Cabinet bears the burden of proving, by a preponderance of the evidence, that (1) the cited standard applies to the facts; (2) the requirements of the standard were not met; (3) employees had access to the hazardous or violative condition (i.e., a violative or hazardous condition existed, and employees were exposed to it); and (4) the employer knew or could have known of the hazardous condition with the exercise of reasonable diligence. DOL v. Morel Constr. Co., 359 S.W.3d 438, 443, 2011 Ky. App. LEXIS 56 (Ky. Ct. App. 2011).

When an employer was cited for a workplace safety violation under 29 C.F.R. § 1926.955(c)(3), on electric conductors, error in finding the regulation preferred grounding over insulation did not require reversal because (1) the Kentucky Occupational Safety and Health Review Commission (Commission) knew the options, and (2) a distinction between the options was irrelevant to the Commission’s decision. Bowlin Group, LLC v. Sec'y of Labor, 437 S.W.3d 738, 2014 Ky. App. LEXIS 122 (Ky. Ct. App. 2014).

Employer’s employee-misconduct defense to a violation of 29 C.F.R. § 1926.955(c)(3), regarding electric conductors, failed because (1) the employer had no policy requiring the employee’s insulation, and (2) no overwhelming evidence required reversal of the Kentucky Occupational Safety and Health Review Commission’s decision. Bowlin Group, LLC v. Sec'y of Labor, 437 S.W.3d 738, 2014 Ky. App. LEXIS 122 (Ky. Ct. App. 2014).

Substantial evidence showed an employer’s violation of 29 C.F.R. § 1926.955(c)(3), on electric conductors, because the evidence showed (1) a tensioner truck was not grounded, (2) the employer had no specific policy requiring employee insulation while working on the ground, and (3) imputing a foreman’s lack of reasonable diligence to ensure an employee’s insulation to the employer resulted in the employer’s constructive knowledge of the violation. Bowlin Group, LLC v. Sec'y of Labor, 437 S.W.3d 738, 2014 Ky. App. LEXIS 122 (Ky. Ct. App. 2014).

CHAPTER 339 Child Labor

339.010. Limitation on employment of children. [Repealed.]

Compiler’s Notes.

This section (4434-4, 4434-19) was repealed by Acts 1948, ch. 107, § 26.

339.020. Work permits — Who entitled to. [Repealed.]

Compiler’s Notes.

This section (4434-4) was repealed by Acts 1948, ch. 107, § 26.

339.030. Work permits — Issuance. [Repealed.]

Compiler’s Notes.

This section (4434-4) was repealed by Acts 1948, ch. 107, § 26.

339.040. School requirements for holders of work permits. [Repealed.]

Compiler’s Notes.

This section (4434-4) was repealed by Acts 1948, ch. 107, § 26.

339.050. Certificate of age. [Repealed.]

Compiler’s Notes.

This section (331a-4) was repealed by Acts 1948, ch. 107, § 26.

339.060. Form, inspection and cancellation of permits and certificate of age. [Repealed.]

Compiler’s Notes.

This section (4434-4) was repealed by Acts 1948, ch. 107, § 26.

339.070. Duties of employers — When not liable. [Repealed.]

Compiler’s Notes.

This section (331a-4, 4434-4) was repealed by Acts 1948, ch. 107, § 26.

339.080. Report of school superintendents — Suspension and revocation of permits and certificates. [Repealed.]

Compiler’s Notes.

This section (331a-4) was repealed by Acts 1948, ch. 107, § 26.

339.090. Employer required to submit proof of child’s age. [Repealed.]

Compiler’s Notes.

This section (331a-2) was repealed by Acts 1948, ch. 107, § 26.

339.100. Performances in places of public amusement. [Repealed.]

Compiler’s Notes.

This section (331a-1) was repealed by Acts 1948, ch. 107, § 26.

339.110. Child under sixteen — Time and hours of labor — Employer to post notice. [Repealed.]

Compiler’s Notes.

This section (331a-7) was repealed by Acts 1948, ch. 107, § 26.

339.115. Partial suspension of KRS 339.110 as to Saturday hours during National Emergency. [Repealed.]

Compiler’s Notes.

This section (Acts 1944, ch. 123, § 1) was repealed by Acts 1948, ch. 107, § 26.

339.120. Child under sixteen not to do certain work. [Repealed.]

Compiler’s Notes.

This section (331a-9) was repealed by Acts 1948, ch. 107, § 26.

339.130. Machinery for instruction in schools permitted. [Repealed.]

Compiler’s Notes.

This section (331a-9) was repealed by Acts 1948, ch. 107, § 26.

339.140. Certain machinery to be safe-guarded — Child under eighteen not to clean moving machinery. [Repealed.]

Compiler’s Notes.

This section (331a-10) was repealed by Acts 1948, ch. 107, § 26.

339.150. Minor female not to stand constantly. [Repealed.]

Compiler’s Notes.

This section (331a-12) was repealed by Acts 1948, ch. 107, § 26.

339.160. Walls and ceilings to be lime-washed or painted. [Repealed.]

Compiler’s Notes.

This section (331a-13) was repealed by Acts 1948, ch. 107, § 26.

339.170. Hours of labor of messengers in first, second and third-class cities. [Repealed.]

Compiler’s Notes.

This section (331a-11) was repealed by Acts 1948, ch. 107, § 26.

339.180. Street occupations in first, second and third-class cities regulated. [Repealed.]

Compiler’s Notes.

This section (331a-15) was repealed by Acts 1948, ch. 107, § 26.

339.190. Law to be posted at places of work. [Repealed.]

Compiler’s Notes.

This section (331a-14) was repealed by Acts 1948, ch. 107, § 26.

339.200. Enforcement of chapter. [Repealed.]

Compiler’s Notes.

This section (331a-8, 1599c-15) was repealed by Acts 1948, ch. 107, § 26.

339.205. “Commissioner” defined.

As used in this chapter, “commissioner” shall mean the commissioner of the Department of Workplace Standards, under the direction and supervision of the secretary of the Labor Cabinet.

History. Enact. Acts 1984, ch. 414, § 24, effective July 13, 1984; 2010, ch. 24, § 1769, effective July 15, 2010.

339.210. Definition of “gainful occupation.”

As used in KRS 339.220 to 339.450 :

  1. “Gainful occupation” does not include employment in farm work or in domestic service in a private home, nor occasional employment by a householder in connection with the household and not in connection with the householder’s business or occupation, such as grass cutting or carrying ashes or similar casual domestic tasks, nor the delivery of newspapers on regularly scheduled routes, nor to employment as an actor or performer in motion pictures or theatrical productions, or in radio or television productions, nor to employment of minors by their own parents or persons standing in the place of a parent in occupations other than manufacturing, mining, or those found by the commissioner of the Department of Workplace Standards to be particularly hazardous; and
  2. “Gainful occupation” does not include a minor who is at least twelve (12) years of age working as a referee, umpire, or official in a youth athletic program, subject to the following:
    1. The minor is a referee, umpire, or official for an age bracket younger than the minor’s own age;
    2. An adult representing the youth athletic program is on the premises where the athletic event is occurring; and
    3. The minor has on file with the person responsible for assigning the minor to officiate for the youth athletic program the original or a copy of a written consent to the child’s employment as a referee, umpire, or official signed by the minor’s parent or guardian.

History. Enact. Acts 1948, ch. 107, § 1; 1984, ch. 256, § 1, effective July 13, 1984; 2005, ch. 123, § 41, effective June 20, 2005; 2010, ch. 24, § 1770, effective July 15, 2010; 2014, ch. 108, § 1, effective April 10, 2014.

NOTES TO DECISIONS

Cited:

Wright v. O’Neal, 320 S.W.2d 606, 1959 Ky. LEXIS 236 ( Ky. 1959 ).

Research References and Practice Aids

Cross-References.

Alcoholic beverage licensee not to employ person under 21, except in bottling house or office, KRS 244.090 .

Compulsory school attendance, KRS Chapter 159.

General Assembly to fix minimum age of employment in certain occupations, Ky. Const., § 243.

Workers’ compensation, minor of 16 is sui juris for purposes of; effect of age certificate on right to receive compensation, KRS 342.065 .

Kentucky Law Journal.

Segal, An Historical Analysis of the Kentucky Workmen’s Compensation Law, 47 Ky. L.J. 279 (1959).

Treatises

Petrilli, Kentucky Family Law, Minors, §§ 30.27, 30.29.

339.220. Minor under fourteen not to be employed — Exception.

No minor under fourteen (14) years of age shall be employed, permitted, or suffered to work in, about, or in connection with any gainful occupation at any time, except for employment in connection with an employment program supervised and sponsored by the school or school district such child attends, which program has been approved by the Department of Education and subject to the regulations of the commissioner of the Department of Workplace Standards.

History. Enact. Acts 1948, ch. 107, § 2; 1970, ch. 143, § 1; 1984, ch. 414, § 25, effective July 13, 1984; 2010, ch. 24, § 1771, effective July 15, 2010.

NOTES TO DECISIONS

1.Special Protection of Minors.

The Constitution, statute and case law of this state reflect a policy of special protection of minors from injury. Pike v. George, 434 S.W.2d 626, 1968 Ky. LEXIS 235 ( Ky. 1968 ).

Opinions of Attorney General.

If a golf club specifically employs caddies, provides specific space for their congregation on the premises of the club, regulates caddies’ hours of being on the premises, such as requiring them to attend at specific times, or engages in any activity which indicates such control over the caddie as to create a relationship of employment, even though the club does not directly pay the caddie, such caddie must not be below 14 years of age. However, if the club does not exercise any control over such persons and they come on the course as guests of members or golfers so as to demonstrate that no relationship of employment exists between the club and the caddies, the club would not be in violation of this section. OAG 69-101 .

Research References and Practice Aids

ALR

Lawn mowing by minors as violation of child labor statutes. 56 A.L.R.3d 1166.

Fair labor practices: Validity, construction, application, and effect of child labor provisions of Fair Labor Standards Act (29 USCS § 212 and related sections). 21 A.L.R. Fed. 391.

339.225. Minors eleven and over as golf caddies — Restrictions.

  1. The provisions of KRS 339.220 to the contrary notwithstanding, minors age eleven (11) years and over may be employed as caddies at golf courses subject to the following provisions:
    1. A “caddy” is an individual who offers his or her services to golfers at golf clubs both private and public. His or her duties during course of play include the carrying of golf clubs, direction to the golfer, assistance to the player in the general maintenance and upkeep of golf courses, including replacement of divots, repair of ball marks, raking of sand traps, location of golf balls and control of the pin. Duties normally referred to as “fore-caddying” or “shagging” of golf balls are not within the scope of this definition;
    2. No minor under eleven (11) years of age shall be employed, or suffered to work as a caddy for hire;
    3. Caddies under fourteen (14) years of age are restricted to caddying one (1) round of eighteen (18) holes in any one (1) day;
    4. Minors eleven (11) and twelve (12) years of age may not carry golf bags and are restricted to caddying with a “pull cart” only;
    5. Minors thirteen (13), fourteen (14), and fifteen (15) years of age may be employed to carry golf bags provided the bags do not exceed thirty-five (35) pounds in weight;
    6. No minor under sixteen (16) years of age shall be employed, permitted, or suffered to operate power-driven golf carts in the course of their employment, or any power-driven maintenance equipment; and
    7. All persons employing minors as caddies are subject to all provisions of this chapter and the regulations issued hereunder.
  2. The Department of Workplace Standards shall promulgate administrative regulations necessary to carry out the provisions of this section.

History. Enact. Acts 1970, ch. 193, §§ 1, 2; 1984, ch. 414, § 26, effective July 13, 1984; 2010, ch. 24, § 1772, effective July 15, 2010.

339.230. Restrictions on employment of minor between fourteen and eighteen.

A minor who has passed his or her fourteenth birthday but is under eighteen (18) years of age may be employed, permitted, or suffered to work in, about, or in connection with any gainful occupation, except:

  1. If he or she is under sixteen (16) years of age, he or she may not be employed during regular school hours, unless:
    1. The school authorities have made arrangements for him or her to attend school at other than the regular hours, in which event he or she may be employed subject to regulations of the commissioner of workplace standards during such of the regular school hours as he or she is not required to be in attendance under the arrangement; or
    2. He or she has graduated from high school.
  2. A minor who has passed his or her fourteenth birthday but is under eighteen (18) years of age, may not be employed, permitted, or suffered to work:
    1. In any place of employment or at any occupation, that the commissioner of workplace standards shall determine to be hazardous or injurious to the life, health, safety, or welfare of such minor unless:
      1. The minor is at least sixteen (16) years of age;
      2. The minor is employed by his or her parent or a person standing in place of a parent and works under adult supervision; and
      3. The minor is engaged in nonhazardous aspects of the electrical trades, including but not limited to activities such as pulling wire, setting boxes, or bending conduit;
    2. More than the number of days per week, nor more than the number of hours per day that the commissioner of workplace standards shall determine to be injurious to the life, health, safety, or welfare of such minor. The commissioner of workplace standards in promulgating these regulations may make them more restrictive than those promulgated by the United States Secretary of Labor under provisions of the Fair Labor Standards Act and its amendments, but in no event may he or she make them less restrictive;
    3. During the hours of the day that the commissioner of workplace standards shall determine to be injurious to the life, health, safety, or welfare of such minor. The commissioner of workplace standards in promulgating these regulations may make them more restrictive than those promulgated by the United States Secretary of Labor under provisions of the Fair Labor Standards Act and its amendments but in no event may he or she make them less restrictive; and
    4. In, about, or in connection with any establishment where alcoholic liquors are distilled, rectified, compounded, brewed, manufactured, bottled, sold for consumption, or dispensed unless permitted by the rules and regulations of the Alcoholic Beverage Control Board (except that he or she may be employed in places where the sale of alcoholic beverages by the package is merely incidental to the main business actually conducted); or in a pool or billiard room.
  3. The commissioner of workplace standards shall promulgate regulations to properly protect the life, health, safety, or welfare of minors. He or she may consider sex, age, premises of employment, substances to be worked with, machinery to be operated, number of hours, hours of the day, nature of the employment, and other pertinent factors. The commissioner of workplace standards in promulgating these regulations may make them more restrictive than those promulgated by the United States Secretary of Labor under provisions of the Fair Labor Standards Act and its amendments but in no event may he or she make them less restrictive, provided, however, these regulations shall have no effect on the definition of “gainful occupation” under KRS 339.210 . To advise the commissioner with respect to the regulations, the Governor shall appoint a committee of four (4) persons which shall consist of a representative from the Cabinet for Health and Family Services, the Department of Education, the Kentucky Commission on Human Rights and the Personnel Cabinet. The regulations promulgated in accordance with this section shall be reviewed by such committee whenever deemed necessary by the commissioner of workplace standards.

History. Enact. Acts 1948, ch. 107, § 3; 1950, ch. 105; 1952, ch. 178, § 1; 1970, ch. 143, § 2; 1974, ch. 74, Art. VI, § 94; 1984, ch. 256, § 2, effective July 13, 1984; 1984, ch. 414, § 27, effective July 13, 1984; 1998, ch. 154, § 93, effective July 15, 1998; 1998, ch. 426, § 561, effective July 15, 1998; 2005, ch. 99, § 609, effective June 20, 2005; 2010, ch. 24, § 1773, effective July 15, 2010; 2011, ch. 74, § 20, effective June 8, 2011.

NOTES TO DECISIONS

1.Owner Not Employer.

Where owner of filling station has nothing to do with the employment of an injured party by station lessee and is not shown to have knowledge of the employment, the owner is not liable under this section. Totten v. Parker, 428 S.W.2d 231, 1967 Ky. LEXIS 523 ( Ky. 1967 ).

2.Service Station.

Under this section, a service station is not necessarily a hazardous place of employment. Totten v. Parker, 428 S.W.2d 231, 1967 Ky. LEXIS 523 ( Ky. 1967 ).

Cited:

Riddell’s Adm’r v. Berry, 298 S.W.2d 1, 1956 Ky. LEXIS 31 ( Ky. 1956 ); Blue Ridge Mining Co. v. Dobson, 310 S.W.2d 52, 1958 Ky. LEXIS 371 ( Ky. 1958 ); Peters v. Frey, 429 S.W.2d 847, 1968 Ky. LEXIS 758 ( Ky. 1968 ).

Opinions of Attorney General.

A minor 18 or 19 years of age may be lawfully employed in a business establishment holding a restaurant license and a license for the sale of alcoholic beverages for consumption on the premises, provided, however, that the duties of such employee must be strictly confined to operation of the restaurant and no duties shall be performed by such an employee in connection with the handling, sale or serving of alcoholic beverages in such an establishment. OAG 62-172 .

Substantially all the operations of a county rescue squad composed of volunteers who assist in cases involving drownings, lost children, fires or any other type of emergency would be hazardous and the employment of anyone under age 18 would be proscribed. OAG 69-41 .

Research References and Practice Aids

Cross-References.

Alcoholic beverage licensee not to employ person under 21, except in bottling house or office, KRS 244.090 .

Safety and health of employees, KRS Chapter 338.

Treatises

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Injuries to Child — Parent’s Loss of Consortium, Form 256.02.

Collateral References.

ALR

Fair labor practices: Validity, construction, application, and effect of child labor provisions of Fair Labor Standards Act (29 USCS § 212 and related sections. 21 A.L.R. Fed. 391.

339.240. Minors between sixteen and eighteen, restrictions on employment of — Special restrictions for females. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 4; 1952, ch. 178, § 2) was repealed by Acts 1970, ch. 143, § 7.

339.250. Furnishing or selling articles to minors for illegal sale.

No person shall furnish or sell to any minor any article of any description with the knowledge that the minor intends to sell said article in violation of KRS 339.210 to 339.450 . No person shall continue to furnish or sell articles of any description to a minor after having received written notice from any officer charged with the enforcement of KRS 339.210 to 339.450 , that the minor is not permitted to sell such articles.

History. Enact. Acts 1948, ch. 107, § 5; 1984, ch. 256, § 3, effective July 13, 1984.

339.260. Hours of employment for minors. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 6; 1952, ch. 178, § 3) was repealed by Acts 1970, ch. 143, § 7.

339.270. Lunch and rest periods.

  1. No minor under eighteen (18) years of age shall be permitted to work for more than five (5) hours continuously without an interval of at least thirty (30) minutes for a lunch period, and no period of less than thirty (30) minutes shall be deemed to interrupt a continuous period of work.
  2. No employer shall require any minor under eighteen (18) years of age to work without a rest period of at least ten (10) minutes during each four (4) hours worked. This shall be in addition to the regularly scheduled lunch period. No reduction in compensation shall be made for hourly or salaried employees.

History. Enact. Acts 1948, ch. 107, § 7; 2020 ch. 48, § 2, effective March 27, 2020.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Injuries to Child — Parent’s Loss of Consortium, Form 256.02.

339.280. Employment certificates required. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 8; 1966, ch. 89, § 12) was repealed by Acts 1984, ch. 256, § 8.

339.290. Kinds of employment certificates — Special certificates for minors incapable of profiting from schooling. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 9; 1952, ch. 178, § 4; 1970, ch. 143, § 3) was repealed by Acts 1984, ch. 256, § 8.

339.300. Who to issue certificates — Rules as to form and conditions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 109; 1952, ch. 178, § 5) was repealed by Acts 1984, ch. 256, § 8.

339.310. Regulations for issuance of employment and age certificates — Furnishing of blank forms — Duplicates. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 11) was repealed by Acts 1984, ch. 256, § 8, effective July 13, 1984.

Legislative Research Commission Note.

This section was amended by 1984 Acts Ch. 414, § 28 and repealed by 1984 Acts Ch. 256, § 8. Pursuant to KRS 446.260 , the repeal prevails.

339.320. Denial of certificate. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 12; 1970, ch. 143, § 4) was repealed by Acts 1984, ch. 256, § 8, effective July 13, 1984.

339.330. Revocation or cancellation of certificate. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 13) was repealed by Acts 1984, ch. 256, § 8, effective July 13, 1984.

Legislative Research Commission Note.

This section was amended by 1984 Acts Ch. 414, § 29 and repealed by 1984 Acts Ch. 256, § 8. Pursuant to KRS 446.260 , the repeal prevails.

339.340. Application for certificate — What must contain — Evidence of age — Physical examination — School record. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 14; 1970, ch. 143, § 5; 1974, ch. 74, Art. VI, § 107(2)) was repealed by Acts 1984, ch. 256, § 8, effective July 13, 1984.

Legislative Research Commission Note.

This section was amended by 1984 Acts Ch. 414, § 30 and repealed by 1984 Acts Ch. 256, § 8. Pursuant to KRS 446.260 , the repeal prevails.

339.350. No fee for certificate — Contents of certificate — Issuance in triplicate. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 14; 1980, ch. 188, § 264, effective July 15, 1980) was repealed by Acts 1984, ch. 256, § 8, effective July 13, 1984.

Legislative Research Commission Note.

This section was amended by 1984 Acts Ch. 414, § 31 and repealed by 1984 Acts Ch. 256, § 8. Pursuant to KRS 446.260 , the repeal prevails.

339.360. Issuance of age certificates.

Upon request, it shall be the duty of the local board of education through its superintendent or other authorized agent to issue to any minor under the age of eighteen (18) years desiring to enter employment a certificate of age upon presentation of proof of age. Every employer shall be required to obtain from any employee proof of age that the employee is at least eighteen (18) years of age.

History. Enact. Acts 1948, ch. 107, § 15; 1984, ch. 256, § 4, effective July 13, 1984.

339.370. Age certificate as evidence of age in other proceedings.

A certificate of age duly issued shall be conclusive evidence of the age of the minor for whom issued in any proceeding involving the employment of the minor under the child labor or workers’ compensation law or any other labor law of the state, as to any act occurring subsequent to its issuance.

History. Enact. Acts 1948, ch. 107, § 16; 1984, ch. 256, § 5, effective July 13, 1984.

Research References and Practice Aids

Cross-References.

Effect of age certificate on right to recover worker’s compensation, KRS 342.065 .

339.380. Part-time schools. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, §§ 17, 18; 1970, ch. 143, § 6) was repealed by Acts 1984, ch. 256, § 8.

339.390. Duty of employer with respect to certificate — Certificate valid only for designated employment — Evidence of illegal employment. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 18; 1966, ch. 89, § 13) was repealed by Acts 1984, ch. 256, § 8.

339.400. Employer’s register — Posting copy of law and working hours.

Every person employing minors under eighteen (18) years of age shall keep a separate register containing the names, ages, and addresses of such employees, and the time of commencing and stopping of work for each day, and the time of the beginning and ending of the daily meal period, and shall post and keep conspicuously posted in the establishment wherein any such minor is employed, permitted, or suffered to work, a printed abstract of KRS 339.210 to 339.450 , and a list of the occupations prohibited to such minors, together with a notice stating the working hours per day for each day in the week required of them. These records and files shall be open at all times to the inspection of the school directors of pupil personnel and probation officers, and representatives of the Labor Cabinet and Department of Education.

History. Enact. Acts 1948, ch. 107, § 19; 1966, ch. 89, § 14; 2010, ch. 24, § 1774, effective July 15, 2010.

339.410. Female employees not to be kept standing constantly. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 20) was repealed by Acts 1984, ch. 256, § 8, effective July 13, 1984.

339.420. Limewashing or painting walls and ceilings of workplaces. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 21) was repealed by Acts 1984, ch. 256, § 8.

339.430. Machinery used in school courses.

Nothing in KRS 339.210 to 339.450 shall prevent the use of suitable machinery for instruction in schools where the mechanical arts are taught in connection with and as part of the usual school curriculum. The use of such machinery in any public or private school shall be subject to the approval of the board of education of the district where the school is situated, and shall be subject to the general industrial safety standards as to supplying safeguards for the protection of those using such machinery.

History. Enact. Acts 1948, ch. 107, § 22.

339.440. Safeguards for machinery. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 23) was repealed by Acts 1984, ch. 256, § 8, effective July 13, 1984.

339.450. Enforcement of law — Right to enter and inspect premises and records.

  1. It shall be the duty of the Department of Workplace Standards and of the inspectors and agents of said department, with the assistance of the school directors of pupil personnel, police officers and juvenile session of District Court probation officers, to enforce the provisions of KRS 339.210 to 339.450 , to make complaints against persons violating the provisions of those sections, and to prosecute violations thereof. The Department of Workplace Standards, its inspectors and agents shall have authority to enter and inspect at any time any place or establishment covered by KRS 339.210 to 339.450 , and to have access to age certificates kept on file by the employer and such other records as may aid in the enforcement of KRS 339.210 to 339.450. School directors of pupil personnel are likewise empowered to visit and inspect places where minors may be employed, and shall report any cases of employment that they find in violation of KRS 339.210 to 339.450 to the Department of Workplace Standards.
  2. Any person authorized to enforce KRS 339.210 to 339.450 may require an employer of a minor for whom an age certificate is not on file either to furnish him or her within ten (10) days the evidence showing that the minor is at least eighteen (18) years of age or to cease to employ or permit or suffer such minor to work. Proof of the making of such demand and of failure to deliver such proof of age shall be prima facie evidence, in any prosecution brought for violation of KRS 339.210 to 339.450 , that such minor is under eighteen (18) years of age and is unlawfully employed.

History. Enact. Acts 1948, ch. 107, § 24; 1966, ch. 89, § 15; 1980, ch. 188, § 178, effective July 15, 1980; 1984, ch. 256, § 6, effective July 13, 1984; 1984, ch. 414, § 32, effective July 13, 1984; 2010, ch. 24, § 1775, effective July 15, 2010.

Research References and Practice Aids

Cross-References.

School attendance officers may investigate places where children are employed, KRS 159.130 .

339.460. Exemption of minors employed at least ninety days prior to June 17, 1948. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 28) was repealed by Acts 1966, ch. 255, § 283.

339.990. Penalties.

Anyone who employs or permits or suffers any minor to be employed or to work in violation of KRS 339.210 to 339.450 , or of any order or ruling issued under the provisions thereof, or obstructs the Department of Workplace Standards, its officers, or agents, or any other person authorized to inspect places of employment under KRS 339.210 to 339.450 , or anyone who, having under his or her control or custody any minor, permits or suffers him or her to be employed or to work in violation of KRS 339.210 to 339.450, or who sells to a minor any article with the knowledge that the minor intends to sell the article in violation of KRS 339.210 to 339.450, shall be assessed a civil penalty, in accordance with the provisions of KRS 336.985 , of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000). Every employer who continues to employ a minor in violation of KRS 339.210 to 339.450 after he has been notified by the Department of Workplace Standards, its officers or agents, shall be assessed a civil penalty, in accordance with the provisions of KRS 336.985 , of one hundred dollars ($100) for each day the violation continues and the employment of any minor in violation of KRS 339.210 to 339.450 shall with respect to each minor so employed constitute a separate and distinct offense.

History. Enact. Acts 1948, ch. 107, § 25; 1984, ch. 256, § 7, effective July 13, 1984; 1984, ch. 414, § 33, effective July 13, 1984; 1990, ch. 42, § 4, effective July 13, 1990; 2010, ch. 24, § 1776, effective July 15, 2010.

NOTES TO DECISIONS

1.Violation by One Parent.

Violation of Child Labor Law by one (1) parent does not bar recovery by other parent who was not guilty of similar violation. Kentucky Utilities Co. v. McCarty's Adm'r, 170 Ky. 543 , 186 S.W. 150, 1916 Ky. LEXIS 79 ( Ky. 1916 ).

Research References and Practice Aids

Cross-References.

Parent responsible for violation of school attendance law by child after notice of violation, KRS 159.180 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Injuries to Child — Parent’s Loss of Consortium, Form 256.02.

CHAPTER 340 Employment Agencies

340.010. Definitions. [Repealed.]

Compiler’s Notes.

This section (1599d: amend. Acts 1976, ch. 97, § 1; 1998, ch. 426, § 562, effective July 15, 1998) was repealed by Acts 2000, ch. 236, § 1, effective July 14, 2000.

340.020. Permit to operate employment agency. [Repealed.]

Compiler’s Notes.

This section (1599d-1) was repealed by Acts 2000, ch. 236, § 1, effective July 14, 2000.

340.030. Application for permit — Fees — Refusal or cancellation. [Repealed.]

Compiler’s Notes.

This section (1599d-2: amend. Acts 1976, ch. 97, § 2) was repealed by Acts 2000, ch. 236, § 1, effective July 14, 2000.

340.040. Place of business to be stated in permit — Records and reports — Permit and law to be posted. [Repealed.]

Compiler’s Notes.

This section (1599d-3: amend. Acts 1976, ch. 97, § 3) was repealed by Acts 2000, ch. 236, § 1, effective July 14, 2000.

340.043. Surety bond required — Action on bond. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 97, § 4) was repealed by Acts 2000, ch. 236, § 1, effective July 14, 2000.

340.050. Restrictions on operation — Sample copy of contract forms to be filed. [Repealed.]

Compiler’s Notes.

This section (1599d-4: amend. Acts 1976, ch. 97, § 5) was repealed by Acts 2000, ch. 236, § 1, effective July 14, 2000.

340.053. Restriction on fees and deposits — Prohibited operations — Advertising restrictions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 97, § 6) was repealed by Acts 2000, ch. 236, § 1, effective July 14, 2000.

340.060. Agency to return consideration if employment not procured. [Repealed.]

Compiler’s Notes.

This section (1599d-5) was repealed by Acts 1976, ch. 97, § 10.

340.070. Enforcement of law — Inspections — Access to records — Administrative regulations — Hearings. [Repealed.]

Compiler’s Notes.

This section (1599c-17, 1599d-6: amend. Acts 1976, ch. 97, § 7; 1996, ch. 318, § 314, effective July 15, 1996; 1998, ch. 426, § 563, effective July 15, 1998) was repealed by Acts 2000, ch. 236, § 1, effective July 14, 2000.

340.080. Free public employment offices. [Repealed.]

Compiler’s Notes.

This section (4748g-4) was repealed by Acts 1946, ch. 113, § 9.

340.090. Employment Service Commission — Membership — Appointment — Qualifications — Compensation. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 113) was repealed by Acts 1948, ch. 164, § 5.

340.100. Director of Employment. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 113) was repealed by Acts 1948, ch. 164, § 5.

340.110. Maintenance of free public employment offices — Acceptance of Wagner-Peyser Act. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 113) was repealed by Acts 1948, ch. 164, § 5.

340.120. Duties of labor-management — Members of Employment Service Commission. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 113) was repealed by Acts 1948, ch. 164, § 5.

340.130. Advisory committee. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 113) was repealed by Acts 1948, ch. 164, § 5.

340.140. Duties of Employment Service Director. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 113) was repealed by Acts 1948, ch. 164, § 5.

340.150. Employment Service Commission Administration Fund. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 113) was repealed by Acts 1948, ch. 164, § 5.

340.160. Transfer of officers and employes in federal service — And properties in possession of Unemployment Compensation Commission. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 113) was repealed by Acts 1948, ch. 164, § 5.

340.170. Kentucky Employment Advisory Council — Membership — Meetings — Powers and duties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 97, § 8) was repealed by Acts 2000, ch. 236, § 1, effective July 14, 2000.

340.990. Penalties. [Repealed.]

Compiler’s Notes.

This section (1599d-8: amend. Acts 1976, ch. 97, § 9) was repealed by Acts 2000, ch. 236, § 1, effective July 14, 2000.

CHAPTER 341 Unemployment Compensation

Construction of Chapter

341.005. Definitions.

As used in this chapter, unless the context clearly requires otherwise:

  1. “Cabinet” means the Education and Workforce Development Cabinet;
  2. “Secretary” means the secretary of the Education and Workforce Development Cabinet or his or her duly authorized representative; and
  3. “Commission” means the unemployment insurance commission.

History. Enact. Acts 1950, ch. 206, § 1; 1974, ch. 74, Art. VI, 95; 1996, ch. 271, § 13, effective July 15, 1996; 2006, ch. 211, § 132, effective July 12, 2006; 2009, ch. 11, § 69, effective June 25, 2009.

Opinions of Attorney General.

The board of directors of a sanitation district established pursuant to KRS Chapter 220, by virtue of their authority to fix the compensation of employees of the district, may elect to apply for unemployment compensation coverage under the provisions of this chapter and may make expenditures from funds of the district to cover employer contributions. OAG 67-386 .

The Council of State Governments, because of its organizational setup, its source of income, and its functions and objectives, falls within an exempt classification of the Kentucky Unemployment Insurance Law. OAG 69-49 .

Research References and Practice Aids

Cross-References.

Cabinet for Health and Family Services employees’ optional coverage, KRS 199.420 .

Retirement and other benefits, KRS Chapters 61, 95 and 161.

Worker’s compensation, KRS Chapter 342.

341.010. Commission. [Repealed.]

Compiler’s Notes.

This section (4748g-3) was repealed by Acts 1950, ch. 206, § 1.

341.020. Definitions for fund, state, contributions, and benefits.

As used in this chapter, unless the context clearly requires otherwise:

  1. “Fund” means the unemployment insurance fund established by KRS 341.490 , to which all contributions, and from which all benefits shall be paid;
  2. “State” includes, in addition to the states of the United States of America, the District of Columbia, Puerto Rico, the Dominion of Canada, and Virgin Islands;
  3. “Contributions” means the money payments, exclusive of interest and penalties, to the unemployment insurance fund required by this chapter and by any previous unemployment compensation law of this state; and
  4. “Benefits” means the money payments payable to a worker under this chapter and under any previous unemployment compensation law of this state with respect to his unemployment.

History. 4748g-3: amend. Acts 1950, ch. 206, § 1; 1958, ch. 4, § 1; 1970, ch. 92, § 89; 1978, ch. 389, § 2, effective July 1, 1978.

NOTES TO DECISIONS

1.Disposition of Payments.

All payments are placed in the trust fund and as such are transmitted to the treasurer of the United States, whereupon such fact is certified to the internal revenue collector and, upon certification, the three percent tax imposed by the federal government is credited with the amount collected and placed in the trust fund by the state authorities, and the collector of revenue for the United States collects the balance or three-tenths of one per cent only. Shaw v. Kentucky Unemployment Compensation Com., 297 Ky. 815 , 181 S.W.2d 697, 1944 Ky. LEXIS 838 ( Ky. 1944 ).

Cited:

Burch v. Taylor Drug Store, 965 S.W.2d 830, 1998 Ky. App. LEXIS 25 (Ky. Ct. App. 1998).

341.030. “Wages” defined — Impact of trust fund balance on taxable wage base amount.

  1. As used in this chapter, unless the context clearly requires otherwise, and except as provided in subsections (2) to (7) of this section, “wages” means all remuneration for services, including commissions, bonuses, and, except for services performed in agriculture and domestic employment, the cash value of all remuneration in any medium other than cash. The reasonable cash value of remuneration in any medium other than cash shall be estimated and determined in accordance with rules prescribed by the commission.
  2. Amounts paid to traveling salesmen or other workers as allowance or reimbursement for traveling or other expenses, incurred on the business of the employing unit, constitute wages only to the extent of the excess of the amounts over the expenses actually incurred and accounted for by the worker to his employer; provided, however, that the cash value of meals and lodging when furnished to the worker for the convenience of the employer shall not constitute wages.
  3. For purposes of this chapter, the term “wages” includes tips which are:
    1. Received while performing services which constitute employment;
    2. Included in a written statement furnished to the employer pursuant to Section 6053(a) of the Internal Revenue Code; and
    3. Shall be treated as having been paid by the employing unit.
  4. “Wages” does not include the amount of any payment made to, or on behalf of, a worker under a plan or system established by an employing unit that makes provision for its workers generally or for a class of its workers, including any amount paid by an employing unit for insurance or annuities, or into a fund, to provide for any such payment, on account of:
    1. Retirement;
    2. Sickness or accident disability but, in the case of payments made to an employee or any of his dependents, this subsection shall exclude from the term “wages” only payments which are received under a workers’ compensation law;
    3. Medical and hospitalization expenses in connection with accident or sickness disability; or
    4. Death, if the worker has not:
      1. The option to receive, instead of provision for the death benefit, any part of the payment, or if the death benefit is insured, any part of the premiums or contributions to premiums paid by his employing unit; and
      2. The right, under the provisions of the plan or system or policy of insurance providing for the death benefit, to assign the benefit, or to receive a cash consideration in lieu of it either upon his withdrawal from the plan or system providing for the benefit or upon termination of the plan or system or policy of insurance or of his employment with his employing unit.
  5. “Wages” does not include any payment on account of sickness or accident disability, or medical or hospitalization expenses in connection with sickness or accident disability, made by an employer to, or on behalf of, an employee after the expiration of six (6) calendar months following the last calendar month in which the employee worked for the employer.
  6. “Wages” does not include the amount of any payment made by an employing unit without deduction from the remuneration of the worker of the tax imposed under Section 3101 of the Internal Revenue Code or any payment required from an employer under a state unemployment compensation law with respect to remuneration paid to an employee for domestic service in a private home of the employer or for agricultural labor.
    1. “Wages” does not, for the purposes of KRS 341.260 to 341.310 , include that part of remuneration which, after wages equal to eight thousand dollars ($8,000) have been paid in a calendar year to a worker by a subject employer or his predecessor with respect to covered employment during any calendar year, is paid to the worker by the subject employer during the calendar year unless that part of the wages is subject to a tax under a federal law, imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund. On January 1, 2012, the amount of eight thousand dollars ($8,000) in this subsection shall increase to nine thousand dollars ($9,000), which shall increase by an additional three hundred dollars ($300) on January 1 of each subsequent year, unless limited by paragraph (b) or (c) of this subsection, not to exceed twelve thousand dollars ($12,000). For the purpose of this subsection, the term “covered employment” shall include service constituting covered employment under any unemployment compensation law of another state. (7) (a) “Wages” does not, for the purposes of KRS 341.260 to 341.310 , include that part of remuneration which, after wages equal to eight thousand dollars ($8,000) have been paid in a calendar year to a worker by a subject employer or his predecessor with respect to covered employment during any calendar year, is paid to the worker by the subject employer during the calendar year unless that part of the wages is subject to a tax under a federal law, imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund. On January 1, 2012, the amount of eight thousand dollars ($8,000) in this subsection shall increase to nine thousand dollars ($9,000), which shall increase by an additional three hundred dollars ($300) on January 1 of each subsequent year, unless limited by paragraph (b) or (c) of this subsection, not to exceed twelve thousand dollars ($12,000). For the purpose of this subsection, the term “covered employment” shall include service constituting covered employment under any unemployment compensation law of another state.
    2. If the trust fund balance on September 30 of a calendar year equals or exceeds two hundred million dollars ($200,000,000), the taxable wage base amount in effect at that time shall not increase on January 1 of the next calendar year or on January 1 of subsequent calendar years, except as provided in paragraphs (c) and (e) of this subsection.
    3. If the trust fund balance on September 30 of a calendar year equals or exceeds two hundred million dollars ($200,000,000), but is twenty million dollars ($20,000,000) or less lower than the trust fund balance amount that would trigger in a lower schedule of contribution rates under KRS 341.270 , the taxable wage base shall increase by three hundred dollars ($300) on January 1 of the next calendar year and that taxable wage base amount shall be the taxable wage base amount in effect for subsequent calendar years, subject to the limitations in paragraph (d) of this subsection.
    4. The total number of years that the increase in the taxable wage base shall be prohibited or limited under paragraph (b) or (c) of this subsection shall not exceed the total number of years that contributing employers paid additional federal unemployment taxes because of a reduction in the credit against the federal unemployment tax established in 26 U.S.C. sec. 3302 beginning in 2011.
    5. If the taxable wage base on January 1 of the calendar year immediately following the last year the increase in the taxable wage base was prohibited or limited under this subsection is less than twelve thousand dollars ($12,000), the taxable wage base amount shall be increased by three hundred dollars ($300), and by an additional three hundred dollars ($300) on January 1 of each subsequent calendar year until the taxable wage base amount reaches twelve thousand dollars ($12,000).
    6. Notwithstanding paragraphs (b) and (c) of this subsection, if the trust fund balance is less than two hundred million dollars ($200,000,000) on September 30 of a calendar year, the suspension of the taxable wage base increase shall not occur.
    7. Notwithstanding any other provision of this subsection, any increase in the maximum weekly benefit rate which otherwise would have occurred except for the suspension of the taxable wage base increase shall be implemented in accordance with the provisions of this chapter.
    8. The provisions of this subsection shall apply unless the United States Department of Labor notifies the secretary that implementation of this subsection would result in decertification of Kentucky’s unemployment insurance program, impact any cap application, affect the receipt of emergency unemployment compensation funds, create an ineligibility for receipt of federal funds, or result in other penalties or sanctions under the Social Security Act or Federal Unemployment Tax Act, 26 U.S.C. secs. 3301 et seq.
    9. Notwithstanding any other provisions of this chapter, for the calendar year 2021 the taxable wage base increase shall be suspended and the taxable wage base in effect for the calendar year 2020 shall be utilized.

History. 4748g-3: amend. Acts 1950, ch. 206, § 1; 1952, ch. 154, §§ 1 to 3; 1964, ch. 168, § 1; 1972, ch. 21, § 1; 1974, ch. 182, § 1; 1978, ch. 389, § 3, effective July 1, 1978; 1980, ch. 188, § 265, effective July 15, 1980; 1982, ch. 67, § 3, effective July 15, 1982; 1982, ch. 261, § 1, effective January 1, 1982; 1986, ch. 26, § 1, effective July 15, 1986; 1994, ch. 136, § 1, effective July 15, 1994; 1996, ch. 266, § 1, effective July 15, 1996; 2010 (1st Ex. Sess.), ch. 5, § 1, effective August 28, 2010; 2012, ch. 52, § 8, effective July 12, 2012; 2021 ch. 177, § 2, effective April 1, 2021.

Compiler’s Notes.

Section 3101 of the Internal Revenue Code, referred to in subsection (6), is compiled as 26 USCS § 3101.

Section 6053(a) of the Internal Revenue Code, referred to in subdivision (3)(b), is codified as 26 USCS § 6053(a).

Legislative Research Commission Notes.

(4/1/2021). The language in subsection (7)(i) of this statute has been changed in codification from the way it was enacted to delete a reference to calendar year 2022, which was deleted in the Governors line-item veto of 2021 HB 413 ( 2021 Ky. Acts ch. 177, sec. 2).

(4/1/2021). 2021 Ky. Acts ch. 177, sec. 7 provides that the amendments made to this statute in that Act are retroactive to March 6, 2020.

NOTES TO DECISIONS

1.Application.

The 1982 amendments to subsection (6) of this section and 341.270 made by Chapter 261 did not invalidate, release, or extinguish any contract executed by contractors prior to April 1, 1982, and was not unconstitutional as applied to such contracts. Adams v. Associated General Contractors, Inc., 656 S.W.2d 729, 1983 Ky. LEXIS 299 ( Ky. 1983 ).

2.Impairment of Rights Under Contract.

The amendments to subsection (6) of this section and 341.270 made by Acts 1982, ch. 261, which increased the wage base and tax rate payable by employers for purposes of unemployment insurance contributions, in no way impaired the rights and obligations under any contract. Adams v. Associated General Contractors, Inc., 656 S.W.2d 729, 1983 Ky. LEXIS 299 ( Ky. 1983 ).

3.“Extended Base Period.”

Commission properly applied KRS 341.090 in finding that the extended base period included only four calendar quarters that immediately preceded the base period in calculating a claimant’s unemployment benefits; there was no ambiguity in the language of § 341.090 that permitted a court to expand the meaning of “extended base period.” Ky. Unemployment Ins. Comm'n v. Hamilton, 364 S.W.3d 450, 2011 Ky. LEXIS 176 ( Ky. 2011 ).

Research References and Practice Aids

Kentucky Law Journal.

Goodlett, The Test of “Employment” Under the State Unemployment Compensation Acts, Typical Statutes and Their Interpretation, 29 Ky. L.J. 82 (1940).

ALR

Service charges, made by hotels or restaurants and later distributed to waiters or similar employes, as “wages” upon which federal or state unemployment taxes or contributions are required to be paid. 83 A.L.R.2d 1024.

341.040. Reserve account, reimbursing employer account, pooled account, and annual payroll.

As used in this chapter, unless the context clearly requires otherwise:

  1. “Reserve account” means a separate book account maintained by the cabinet for each subject contributing employer under KRS 341.530 and 341.540 . No amount shall be credited to any reserve account on any date which has not been actually received by the cabinet by that date, and no benefit amount shall be charged against any reserve account by any date for which a check has not been written and sent by that date;
  2. “Reimbursing employer account” means a separate book account maintained by the cabinet for each subject employer who elects to make payments in lieu of contributions pursuant to KRS 341.275 or 341.277 . No benefit amount shall be charged against any reimbursing employer account prior to the issuance of benefit checks against that account;
  3. “Pooled account” means a separate book account maintained by the cabinet under KRS 341.550 ;
  4. “Annual payroll” means the total amount of wages paid by a subject employer during a twelve (12)-consecutive-month period for covered employment.

History. 4748g-3: amend. Acts 1950, ch. 206, § 1; 1958, ch. 4, § 2; 1974, ch. 74, Art. VI, § 107(23); 1996, ch. 266, § 2, effective July 15, 1996.

NOTES TO DECISIONS

1.Crediting of Account.

A company must have its reserve account credited with the amount of unemployment benefits paid for the weeks for which the employes subsequently received vacation pay from the company in accordance with the union contract. Kentucky Unemployment Ins. Com. v. General Electric Co., 473 S.W.2d 808, 1971 Ky. LEXIS 160 ( Ky. 1971 ).

341.050. Covered employment.

  1. As used in this chapter, unless the context clearly requires otherwise and subject to the provisions of KRS 341.055 , “covered employment” means service, including service in interstate commerce, performed by:
    1. An individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee;
    2. An officer of a corporation;
    3. An individual who performs service for remuneration for any employing unit:
      1. As an agent-driver or commission-driver engaged in distributing meat products, vegetable products, fruit products, bakery products, beverages (other than milk), or laundry or dry-cleaning services, for his principal; or
      2. As a traveling or city salesman, other than as an agent-driver or commission-driver, engaged upon a full-time basis in the solicitation on behalf of, and the transmission to, his principal (except for side-line sales activities on behalf of some other person) of orders from wholesalers, retailers, contractors, or operators of hotels, restaurants, or other similar establishments for merchandise for resale or supplies for use in their business operations; provided, that for purposes of this paragraph, the term “covered employment” shall include services described in subparagraphs 1. and 2. above only if the contract of service contemplates that substantially all of the services are to be performed personally by such individual; such individual does not have a substantial investment in facilities used in connection with the performance of the services (other than in facilities for transportation); and the services are not in the nature of a single transaction that is not part of a continuing relationship with the person for whom the services are performed;
    4. Except as provided in KRS 341.055 (4), an individual in the employ of this state or any of its instrumentalities or any political subdivision or municipality thereof or any of its instrumentalities or any instrumentality of more than one (1) of the foregoing or any instrumentality of any of the foregoing and one (1) or more other states or political subdivisions or municipalities, provided that such service is excluded from “employment” as defined in the Internal Revenue Code solely by reason of Section 3306(c)(7) of the code but only when such service is required to be “covered employment” under this chapter by reason of Section 3309 of the Internal Revenue Code, as amended, as a requirement of Section 3304 of that code, as amended, for approval of the state’s unemployment insurance law; or
    5. An individual in the employ of a religious, charitable, educational or other organization but only if the following conditions are met:
      1. The service is excluded from “employment” as defined in the Internal Revenue Code solely by reason of Section 3306(c)(8) of that code but only when such service is required to be “covered employment” under this chapter by reason of Section 3309 of the Internal Revenue Code, as amended, as a requirement of Section 3304 of that code, as amended, for approval of the state’s unemployment insurance law; and
      2. The organization had four (4) or more individuals in employment for some portion of a day in each of twenty (20) different weeks, whether or not such weeks were consecutive, within either the current or preceding calendar year, regardless of whether they were employed at the same moment of time; or
    6. An individual in the employ of an employing unit performing agricultural service, as defined in Section 3306(k) of the Internal Revenue Code, if either of the following conditions are met:
      1. The employing unit paid wages of twenty thousand dollars ($20,000) or more in a calendar quarter in either the current or preceding calendar year for service performed in agricultural labor; or
      2. The employing unit employed for some portion of a day in each of twenty (20) different calendar weeks, whether or not such weeks are consecutive, ten (10) or more workers (irrespective of whether the same workers were in employment in each of such weeks) performing service in agricultural labor; or
    7. An individual in the employ of an employing unit performing domestic service in a private home, a local college club, or a local chapter of a college fraternity or sorority if the employing unit paid wages of one thousand dollars ($1,000) or more in a calendar quarter in either the current or preceding calendar year for service performed in domestic employment; or
    8. An individual’s service described in paragraphs (e) or (f) or (g) of this subsection, has not ceased to be covered employment under paragraph (c) of subsection (3) of KRS 341.250 .
  2. The term “covered employment” shall include:
    1. An individual’s entire service, performed within, or both within and without, this state if the service is localized in this state. Service shall be deemed to be localized within a state if:
      1. The service is performed entirely within such state; or
      2. The service is performed both within and without such state but the service performed without such state is incidental to the individual’s service within the state; for example, is temporary or transitory in nature or consists of isolated transactions.
    2. An individual’s entire service, wherever performed within the United States, the Virgin Islands or Canada, if:
      1. Such service is not covered under the unemployment compensation law of any other state, the Virgin Islands or Canada; and
      2. The place from which the service is directed or controlled is in this state.
    3. The service of an individual who is a citizen of the United States, performed outside the United States (except in Canada), in the employ of an American employer (other than service which is deemed “covered employment” under the provisions of paragraphs (a) or (b) of this subsection or the parallel provisions of another state’s law), if:
      1. The employer’s principal place of business in the United States is located in this state; or
      2. The employer has no place of business in the United States, but
        1. The employer is an individual who is a resident of this state; or
        2. The employer is a corporation which is organized under the laws of this state; or
        3. The employer is a partnership or a trust and the number of the partners or trustees who are residents of this state is greater than the number who are residents of any one (1) other state; or
      3. None of the criteria of subparagraphs 1. and 2. of this paragraph is met but the employer has elected coverage in this state or, the employer having failed to elect coverage in any state, the individual has filed a claim for benefits, based on such service, under the law of this state.
      4. An “American employer,” for purposes of this paragraph, means:
        1. An individual who is a resident of the United States; or
        2. A partnership if two-thirds (2/3) or more of the partners are residents of the United States; or
        3. A trust, if all of the trustees are residents of the United States; or
        4. A corporation organized under the laws of the United States or of any state.
      5. The term “United States,” for the purposes of this subsection, includes the states, the District of Columbia, the Commonwealth of Puerto Rico, and the Virgin Islands.
    4. Service performed by an officer or member of the crew of an American vessel or American aircraft on or in connection with such vessel or such aircraft, if the operating office, from which the operations of such vessel operating on navigable waters within, or the operation of such aircraft within or the operations of such vessel or such aircraft, within or without, the United States are ordinarily and regularly supervised, managed, directed and controlled is within this state.
  3. Notwithstanding any other provisions of this section or any of the provisions of KRS 341.055 , the term “covered employment” shall also include service with respect to which a tax is required to be paid under any federal law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund or which as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act is required to be covered under this chapter.
  4. For the purpose of this chapter, if the services performed during one-half (1/2) or more of any pay period by an individual for the employing unit employing him constitutes covered employment, all the services of such individual for such period shall be deemed to be covered employment; but if the services performed during more than one-half (1/2) of any such pay period by an individual for the employing unit employing him do not constitute covered employment, then none of the services of such individual for such period shall be deemed to be covered employment. As used in this subsection, the term “pay period” means a period (of not more than thirty-one (31) consecutive days) for which a payment for service is ordinarily made to the individual by the employing unit employing him. This subsection shall not be applicable with respect to services performed in a pay period by an individual for the employing unit employing him, when any of such service is excluded because it is subject to an unemployment insurance program established by an Act of Congress.

History. 4748g-3: amend. Acts 1948, ch. 216, § 1; 1950, ch. 206, § 1; 1958, ch. 4, § 3; 1962, ch. 207, § 1; 1972, ch. 21, § 2; 1978, ch. 389, § 4, effective July 1, 1978.

Compiler’s Notes.

Subdivision (1)(d) of this section became effective January 1, 1979.

Sections 3304, 3306 and 3309 of the Internal Revenue Code, referred to herein, are compiled as 26 USCS §§ 3304, 3306 and 3309, respectively.

NOTES TO DECISIONS

1.Legal Relationship of Employer and Employee.

“The legal relationship of employer and employee,” as used in defining “covered employment,” must be accorded its natural sense, and is synonymous with the legal concept of master and servant, and the employment referred to is no broader than the ordinary master and servant relationship. Barnes v. Indian Refining Co., 280 Ky. 811 , 134 S.W.2d 620, 1939 Ky. LEXIS 204 ( Ky. 1939 ).

The legal relation of employer and employee is essential to constitute “covered employment,” and it is assumed that the legislature used the terms in their ordinary sense. Commonwealth v. Potts, 295 Ky. 724 , 175 S.W.2d 515, 1943 Ky. LEXIS 346 ( Ky. 1943 ).

2.Cemeteries.

A public cemetery is not a public charity and a cemetery company is not a charitable corporation and therefore a cemetery company is not exempt from the unemployment compensation tax. Lexington Cemetery Co. v. Commonwealth, 297 Ky. 851 , 181 S.W.2d 699, 1944 Ky. LEXIS 839 ( Ky. 1944 ).

As the Kentucky Unemployment Compensation Law follows the federal Social Security Law closely in order to obtain federal aid, and the federal law showed a clear intent not to exempt cemeteries, it follows that Kentucky law likewise intended not to exempt cemeteries. Lexington Cemetery Co. v. Commonwealth, 297 Ky. 851 , 181 S.W.2d 699, 1944 Ky. LEXIS 839 ( Ky. 1944 ).

3.Location of Employment.

The chief criterion of coverage is the location of the employment and, where all the work is performed within this state, it is undoubtedly localized in this state and constitutes covered employment under this section; the fact that the employer’s place of business is located in another state is not material in determining whether the services performed for him are covered because, if the services rendered by an employee are localized in this state, there is no need for considering this factor. Commonwealth ex rel. Division of Unemployment Ins. v. Goheen, 372 S.W.2d 782, 1963 Ky. LEXIS 140 ( Ky. 1963 ).

4.Real Estate Salesmen.

Where real estate salesmen paid all of own expenses, set own hours, vacations, and methods of doing business and were paid by commissions on sales only, they were not employees of real estate broker for purposes of unemployment compensation act. Commonwealth ex rel. Division of Unemployment Ins. v. Kendall, 313 Ky. 735 , 233 S.W.2d 511, 1950 Ky. LEXIS 972 ( Ky. 1950 ).

5.Guards.

Guards furnished private property owners under contract with an agency furnishing the protection were covered employees under this section, although such guards were made special local police officers and paid as provided by KRS 61.360 . Commonwealth v. Potts, 295 Ky. 724 , 175 S.W.2d 515, 1943 Ky. LEXIS 346 ( Ky. 1943 ).

6.Beauty Operators.

Where beauty operators lease or rent booths in shop from owner who furnishes all supplies and equipment, and such operators and owner have agreement with regard to the time of opening of the shop and they advise him if they will be absent but otherwise set their own hours, and he does not supervise or control their actual work and may not discharge them except for misconduct, and there is a weekly settlement between them with the gross receipts being divided on a commission basis, the relationship is that of employer and employee making them covered employees under this section. Litteral v. Commonwealth, 312 Ky. 505 , 228 S.W.2d 37, 1950 Ky. LEXIS 686 ( Ky. 1950 ).

7.Taxicab Drivers.

Where appellant secured license to operate taxicabs, furnished all oil and gas, and provided public liability insurance for the cabs, the fact that appellant entered into a written contract with drivers whereby the cabs were leased to them for 12 hours each day and they furnished their own drivers’ licenses and paid 70% of their gross income, exclusive of tips, to appellant each day and agreed to operate the cab in a safe manner and use their best efforts to increase business did not change their status from that of employee to independent contractor. Radley v. Commonwealth, 297 Ky. 830 , 181 S.W.2d 417, 1944 Ky. LEXIS 819 ( Ky. 1944 ).

8.Independent Contractor.

Person operating oil bulk stations under consignment agreement with refining company was an independent contractor and therefore not subject to compensation act, where refining company had no right to control the details or methods of procedure, and contractor was free to manage his business as he saw fit. Barnes v. Indian Refining Co., 280 Ky. 811 , 134 S.W.2d 620, 1939 Ky. LEXIS 204 ( Ky. 1939 ).

The question of whether a relationship is that of servant or independent contractor is to some extent a matter of degree, but the chief criterion in all cases is the right to control methods of work rather than mere results. Barnes v. Indian Refining Co., 280 Ky. 811 , 134 S.W.2d 620, 1939 Ky. LEXIS 204 ( Ky. 1939 ).

9.Part-time Employment.

A person hired initially on a part-time basis who continues in some aspect of part-time employment can qualify for unemployment insurance benefits. Corbin Times-Tribune v. Kentucky Unemployment Ins. Com., 686 S.W.2d 821, 1985 Ky. App. LEXIS 728 (Ky. Ct. App. 1985).

10.Newspaper Carriers.

Newspaper carriers are employees for unemployment compensation purposes, and not independent contractors; the Kentucky Unemployment Insurance Commission correctly identified the factors for determining whether the carriers were employees or independent contractors. Ky. Unemployment Ins. Comm'n v. Landmark Cmty. Newspapers of Ky., 91 S.W.3d 575, 2002 Ky. LEXIS 243 ( Ky. 2002 ).

11.Evidence.

Trial court’s determination that substitute teachers were “noncovered employment,” categorically and as a matter of law pursuant to KRS 341.055(4)(e), was erroneous. To determine whether substitute teaching was “covered employment” as defined by KRS 341.050(1)(a) and the common law, evidence was required, which the referee did not elicit and which the parties were not provided a full opportunity to present, and, thus, ruling on the matter in the absence of a sufficiently developed record was erroneous. Ky. Unemployment Ins. Comm'n v. Boone County Bd. of Educ., 354 S.W.3d 605, 2011 Ky. App. LEXIS 219 (Ky. Ct. App. 2011).

Cited:

Kentucky Unemployment Ins. Com. v. Potts, 290 S.W.2d 38, 1956 Ky. LEXIS 306 ( Ky. 1956 ); Commonwealth ex rel. Division of Unemployment Ins. v. Stone, 297 S.W.2d 58, 1956 Ky. LEXIS 17 ( Ky. 1956 ); Kentucky Unemployment Ins. Com. v. Western & Southern Life Ins. Co., 357 S.W.2d 850, 1962 Ky. LEXIS 147 ( Ky. 1962 ).

Opinions of Attorney General.

If a hospital is a private corporation its employees would be covered by the Unemployment Compensation Law of Kentucky pursuant to this section and KRS 341.055 . OAG 72-588 .

Under this section and KRS 341.055 employees of a county hospital would not be subject to the Unemployment Compensation Law of Kentucky. OAG 72-588 .

It is the county government which is ultimately liable to pay the unemployment insurance contributions for all nonelective employees who perform services for the benefit of the county. OAG 79-433 .

For the purposes of obtaining employee fringe benefits, the county is responsible for paying on behalf of jail personnel, as county employees, social security payments (KRS Chapter 61), worker’s compensation premiums (KRS Chapter 342), unemployment insurance premiums (KRS Chapter 341) and medical insurance coverage (KRS Chapter 67). OAG 82-346 .

Research References and Practice Aids

Cross-References.

Cabinet for Health and Family Services, employees of, may be covered at election of secretary, KRS 199.420 .

Kentucky Law Journal.

Seitz, Independent Calling of Life Insurance Solicitor Under State Unemployment Compensation Acts, 29 Ky. L.J. 181 (1941).

Seitz, Rationale for Determining Newsboy and Life Insurance Solicitor Status Under Unemployment and Workmen’s Compensation Statutes, 33 Ky. L.J. 102 (1945).

ALR

When is a corporation, community chest, fund, foundation, or club “organized and operated exclusively” for charitable or other exempt purposes under Internal Revenue Code. 69 A.L.R.2d 871.

Insurance agents or salesmen as within coverage of social security or unemployment compensation acts. 39 A.L.R.3d 872.

Liability of political party or its subdivision for contributions under unemployment compensation acts. 43 A.L.R.3d 1351.

Part-time or intermittent workers as covered by or as eligible for benefits under state Unemployment Compensation Act. 95 A.L.R.3d 891.

Trucker as employee or independent contractor. 2 A.L.R.4th 1219.

341.055. Noncovered employment.

Unless the employing unit thereof has elected that the services become covered employment under the provisions of subsection (3) or (4) of KRS 341.250 , “covered employment” shall not include:

  1. Service performed in agricultural labor, as defined in Section 3306(k) of the Internal Revenue Code, but only if the service is not defined as “covered employment” in paragraphs (f) and (h) of subsection (1) of KRS 341.050 ; or agricultural service performed prior to January 1, 1980, by an individual who is an alien admitted to the United States to perform service in agricultural labor pursuant to Sections 214(c) and 101(a)(15)(H) of the Immigration and Nationality Act;
  2. Domestic service in a private home, a local college club, or local chapter of a college fraternity or sorority, but only if the service is not defined as “covered employment” in paragraphs (g) and (h) of subsection (1) of KRS 341.050 ;
  3. Service in the employ of an organization described in paragraph (e) of subsection (1) of KRS 341.050 , but only if the service is not defined as “covered employment” in paragraphs (e) and (h) of subsection (1) of KRS 341.050 ;
  4. Certain service performed in the employ of this state or any of its political subdivisions, municipalities, or instrumentalities thereof, but only if the service is performed by an individual in the exercise of his or her duties:
    1. As a public elected official;
    2. As a member of a legislative body of this state or a political subdivision thereof;
    3. As a member of the judiciary of this state or political subdivision thereof;
    4. As a member of the State National Guard or Air National Guard;
    5. As an employee serving on a temporary basis in case of fire, storm, snow, earthquake, flood, or similar emergency; or
    6. In a position which, under or pursuant to the state law is designated as a major nontenured policymaking or advisory position, or a policymaking or advisory position the performance of the duties of which ordinarily does not require more than eight (8) hours per week or by reason of service on any appointed state or local board or commission;
  5. Except as provided in paragraph (d) of subsection (1) of KRS 341.050 , service performed in the employ of any other state or any political subdivision thereof, or of the United States government or an instrumentality of the United States exempt by federal law from the contributions imposed by this chapter, except that to the extent that the Congress of the United States shall permit states to require instrumentalities of the United States to make payments into an unemployment fund under a state unemployment insurance law, all the provisions of this chapter shall be applicable to such instrumentalities, and to services performed for such instrumentalities, in the same manner, to the same extent and on the same terms as to all other employing units, individuals and services; provided that if this state shall not be certified for any year by the Secretary of Labor of the United States under Section 3304 of the Internal Revenue Code, the payments required of such instrumentalities, with respect to such year, shall be refunded from the fund in the same manner and within the same period as is provided in KRS 341.330 with respect to contributions erroneously collected;
  6. Service with respect to which unemployment compensation is payable under an unemployment compensation system established by an Act of Congress. The secretary may enter into agreements with the proper agencies under such Act of Congress to provide reciprocal treatment to workers who have, after acquiring potential rights to benefits under this chapter, acquired rights to unemployment compensation under such Act of Congress, or who have, after acquiring potential rights to unemployment compensation under such Act of Congress, acquired rights to benefits under this chapter;
  7. Service performed by a worker in the employ of his or her son, daughter, or spouse, and service performed by a child under the age of twenty-one (21) in the employ of his or her father or mother;
  8. Service performed in the employ of a foreign government, including service as a consular, or other officer or employee, or a nondiplomatic representative, or of an instrumentality wholly owned by a foreign government if:
    1. The service is of a character similar to that performed in foreign countries by employees of the United States government or of an instrumentality thereof; and
    2. The secretary finds that the United States Secretary of State has certified to the United States Secretary of the Treasury that the foreign government, with respect to whose instrumentality exemption is claimed, grants an equivalent exemption with respect to similar service performed in the foreign country by employees of the United States government and of instrumentalities thereof;
  9. Service performed as a student nurse in the employ of a hospital or a nurses’ training school by a worker who is enrolled and is regularly attending classes in a nurses’ training school chartered or approved pursuant to the laws of this state; and service performed as an intern in the employ of a hospital by a worker who has completed a four (4) years’ course in a medical school chartered or approved pursuant to the laws of this state;
  10. Service performed by a worker for an employing unit as an insurance agent or as an insurance solicitor, if all such service performed by such worker for such employing unit is performed for remuneration solely by way of commission;
  11. Service performed by a worker under the age of eighteen (18) in the delivery or distribution of newspapers or shopping news, not including delivery or distribution to any point for subsequent delivery or distribution;
  12. Service not in the course of the employing unit’s trade or business performed in any calendar quarter by a worker, unless the cash remuneration paid for such service is fifty dollars ($50) or more and such service is performed by an individual who is regularly employed by such employing unit to perform such service. For the purpose of this subsection, an individual shall be deemed to be regularly employed by an employing unit during a calendar quarter only if:
    1. On each of some twenty-four (24) days during the quarter, the individual performs for such employing unit for some portion of the day service not in the course of the employing unit’s trade or business; or
    2. The individual was regularly employed, as determined under paragraph (a) of this subsection, by the employing unit in the performance of the service during the preceding calendar quarter;
  13. Service performed in any calendar quarter in the employ of any organization exempt from income tax under Section 501(a) of the Internal Revenue Code, other than an organization described in Section 401(a), or under Section 521 of the Internal Revenue Code, if the remuneration for the service is less than fifty dollars ($50);
  14. Service performed in the employ of an international organization;
  15. Service covered by an election, duly approved by the agency charged with the administration of any other state or federal employment security law, in accordance with an arrangement pursuant to KRS 341.145 during the effective period of the election;
  16. Service performed in the employ of a school, college, or university, if the service is performed:
    1. By a student who is enrolled and is regularly attending classes at the school, college or university; or
    2. By the spouse of such a student, if the spouse is advised, at the time the spouse commences to perform the service, that:
      1. The employment of the spouse to perform the service is provided under a program to provide financial assistance to the student by the school, college, or university; and
      2. The employment will not be covered by any program of unemployment insurance;
  17. Service performed by an individual who is enrolled at a nonprofit or public educational institution which normally maintains a regular faculty and curriculum and normally has a regularly organized body of students in attendance at the place where its educational activities are carried on, as a student in a full-time program, taken for credit at such institution, which combines academic instruction with work experience, if the service is an integral part of such program, and such institution has so certified to the employer, except that this subsection shall not apply to service performed in a program established for or on behalf of an employer or group of employers;
  18. Service performed in the employ of a hospital, if the service is performed by a patient of the hospital, as defined in KRS 341.067 ;
  19. Service performed in the employ of a church or convention or association of churches, or an organization which is operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches; or by a duly ordained, commissioned, or licensed minister of a church in the exercise of his or her ministry or by a member of a religious order in the exercise of duties required by the order;
  20. Service defined in KRS 341.050(1)(d) and (e) performed for a facility conducted for the purpose of carrying out a program of rehabilitation for individuals whose earning capacity is impaired by age, physical or mental deficiency, or injury, or providing remunerative work for individuals who, because of their impaired physical or mental capacity, cannot be readily absorbed in the competitive labor market by an individual receiving the rehabilitation or remunerative work; or as part of an unemployment work-relief or work-training program assisted or financed in whole or in part by any federal agency or an agency of a state or political subdivision thereof by an individual receiving the work relief or work training; or in a custodial or penal institution by an inmate of such institution;
  21. Service performed by a direct seller as defined in Section 3508(b)(2) of the Internal Revenue Code of 1986; or
  22. Any individual whose function is to provide behavior support services, behavior programming services, case management services, community living support services, positive behavior support services, or respite services through a contractual relationship with a certified waiver provider, as defined in 907 KAR 7:005 sec. 1(5), pursuant to a 1915(c) home and community based services waiver program, as defined in 907 KAR 7:005 sec. 1(2).

History. Enact. Acts 1972, ch. 21, § 3; 1974, ch. 74, Art, VI, § 107(21); 1978, ch. 389, § 5, effective July 1, 1978; 1980, ch. 385, § 1, effective July 15, 1980; 1986, ch. 26, § 2, effective July 15, 1986; 1988, ch. 106, § 1, effective July 15, 1988; 1990, ch. 6, § 1, effective July 13, 1990; 2020 ch. 2, § 3, effective July 15, 2020; 2021 ch. 153, § 3, effective June 29, 2021.

Compiler’s Notes.

Sections 401, 501, 521, 3304, 3306 and 3309 of the Internal Revenue Code, referred to in this section, are compiled as 26 USCS §§ 401, 501, 521, 3304, 3306 and 3309, respectively. Sections 101(a)(15)(H) and 214(c) of the Immigration and Nationality Act, referred to in subsection (1), are compiled as 8 USCS §§ 1101(a)(15)(H) and 1184(c), respectively.

NOTES TO DECISIONS

1.Construction.

The Kentucky Unemployment Compensation law provides that the act shall be liberally construed to accomplish its purposes. Commonwealth, Dep't of Educ. v. Commonwealth, 798 S.W.2d 464, 1990 Ky. App. LEXIS 156 (Ky. Ct. App. 1990).

Trial court’s determination that substitute teachers were “noncovered employment,” categorically and as a matter of law pursuant to KRS 341.055(4)(e), was erroneous. To determine whether substitute teaching was “covered employment” as defined by KRS 341.050(1)(a) and the common law, evidence was required, which the referee did not elicit and which the parties were not provided a full opportunity to present, and, thus, ruling on the matter in the absence of a sufficiently developed record was erroneous. Ky. Unemployment Ins. Comm'n v. Boone County Bd. of Educ., 354 S.W.3d 605, 2011 Ky. App. LEXIS 219 (Ky. Ct. App. 2011).

Based upon the language of KRS 341.055 , and particularly the types of emergencies enumerated therein, it was plainly the general assembly’s intent to limit noncovered employment as that term is defined in KRS 341.055 (4)(e) to personnel which the State must engage following a large-scale disaster that impedes the essential functions of government. While a teacher’s absence may create an emergency of sorts for the school, it does not create the type of emergency contemplated by KRS 341.055(4)(e). Ky. Unemployment Ins. Comm'n v. Boone County Bd. of Educ., 354 S.W.3d 605, 2011 Ky. App. LEXIS 219 (Ky. Ct. App. 2011).

2.Job Duties.

With regard to deciding eligibility for unemployment compensation, such determinations should be made on a case-by-case basis, and with regard to evaluating covered employment under subdivision (4) of this section, the key consideration is whether the claimant’s job duties were major policymaking or advisory; the title or nonclassified status of a claimant’s position are not the primary considerations. Commonwealth, Dep't of Educ. v. Commonwealth, 798 S.W.2d 464, 1990 Ky. App. LEXIS 156 (Ky. Ct. App. 1990).

Where the evidence showed that although some unemployment compensation claimants had minor advisory duties, the bulk of their duties was administrative, the Unemployment Compensation Commission correctly considered the duties of each position on an individual basis in determining that none of the claimants were employed in major, nontenured policymaking or advisory positions as stated in this section; as a result, the Commission correctly found that each of the claimants was entitled to receive unemployment compensation. Commonwealth, Dep't of Educ. v. Commonwealth, 798 S.W.2d 464, 1990 Ky. App. LEXIS 156 (Ky. Ct. App. 1990).

Opinions of Attorney General.

In the absence of election on its part, a county hospital is not liable for unemployment compensation taxes or contributions under subdivision (3) (now subdivision (4)) of this section. OAG 74-768 .

Elementary and secondary school teachers are not eligible to receive unemployment benefits during the summer since no contribution for public school teachers is made to the fund by the state. OAG 75-219 .

The criteria for coverage by the unemployment compensation program is whether the employees, or their employers, or both parties, contributed to the fund under KRS 341.282 . OAG 75-219 .

Although CETA employees would usually be excluded from unemployment insurance benefits under subdivision (20) of this section, federal regulations relating to CETA require that such employees receive the same benefits as other employees working for an employer, and the “employer” for purposes of such benefits is the prime sponsor organization rather than the local unit of government or a private, nonprofit group. OAG 81-71 .

The employment of special sheriff’s deputies during emergencies is not “covered employment,” under subsections (4)(e) and former (g) and the fiscal court is not, therefore, responsible for unemployment insurance for such deputies. OAG 83-301 .

341.060. Employing unit.

  1. As used in this chapter, unless the context clearly requires otherwise, “employing unit” means any individual or type of organization, including any partnership, association, society, trust, estate, joint-stock company, corporation, insurance company, whether any of these are domestic or foreign, or the receiver, trustee in bankruptcy, trustee or the legal representative of a deceased person, or this state or any department, division, administrative unit, political subdivision or municipality thereof, which has or subsequent to January 1, 1936, had one (1) or more workers performing services for it within this state, or one (1) or more workers performing services for it in covered employment in any state, or any successor to any employing unit defined in this subsection.
  2. All workers performing service within this state for any employing unit which maintains two (2) or more separate establishments within this state shall be deemed to be employed by a single employing unit for all purposes of this chapter.
  3. For purposes of this chapter agricultural workers who are members of a crew furnished by a crew leader to perform agricultural labor for another person shall be deemed to be employed by such crew leader as the employing unit provided that:
    1. Such crew leader holds a valid certificate of registration under the Farm Labor Contractor Registration Act of 1963; or
    2. Substantially all the members of such crew operate or maintain tractors, mechanized harvesting or cropdusting equipment, or any other mechanized equipment, which is provided by such crew leader; and
    3. Such individual is not an employee of such other person within the meaning of paragraph (a).
  4. For purposes of this chapter, if an individual is furnished by a crew leader to perform agricultural labor for another person and who is not treated as an employee of such crew leader under subsection (3) such other person, and not the crew leader, shall be treated as the employing unit of such individual; and
    1. Such other person shall be treated as having paid cash remuneration to such individual in an amount equal to the amount of cash remuneration paid to such individual by the crew leader (either on his behalf or on behalf of such other person) for the agricultural labor performed for such other person.
  5. For purposes of this section, the term “crew leader” means an individual who:
    1. Furnishes individuals to perform agricultural labor for any other person,
    2. Pays (either on his behalf or on behalf of such other person) the individuals so furnished by him for the agricultural labor performed by them, and
    3. Has not entered into a written agreement with such other person under which such individual is designated as an employee of such other person.

History. 4748g-3: amend. Acts 1950, ch. 206, § 1; 1978, ch. 389, § 6, effective July 1, 1978.

Compiler’s Notes.

The Farm Labor Contractor Registration Act of 1963 referred to in subdivision (3)(a) was formerly compiled at 7 USCS § 2041 to 2055. It was repealed by Act Jan. 14, 1983, P.L. 97-470, Title V, Part C, § 523, 96 Stat. 2600, effective 90 days after enactment on Jan. 14, 1983, as provided by § 524 of such Act, which appears as 29 USCS § 1801 note.

NOTES TO DECISIONS

Cited:

Barnes v. Indian Refining Co., 280 Ky. 811 , 134 S.W.2d 620, 1939 Ky. LEXIS 204 ( Ky. 1939 ); Fritz v. Commonwealth, 309 Ky. 637 , 218 S.W.2d 659, 1949 Ky. LEXIS 776 ( Ky. 1949 ); Ford Motor Co. v. Kentucky Unemployment Compensation Com., 243 S.W.2d 657, 1951 Ky. LEXIS 1148 ( Ky. 1951 ); Snook v. International Harvester Co., 276 S.W.2d 658, 1955 Ky. LEXIS 437 ( Ky. 1955 ); United States Steel Corp. v. Brown, 441 S.W.2d 405, 1969 Ky. LEXIS 313 ( Ky. 1969 ).

Opinions of Attorney General.

This section, KRS 341.069 and 341.070 read together make it clear that the county government and its instrumentalities are the “employing unit” or the “subject employer.” OAG 79-433 .

341.065. Exemption of nonprofit cemetery associations from covered employment. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 115; 1958, ch. 4, § 4) was repealed by Acts 1972, ch. 21, § 39.

341.067. Hospitals and institutions of higher education.

As used in this chapter, unless the context clearly requires otherwise:

  1. “Hospital” means an institution which has been licensed, certified, or approved by the secretary for health and family services as a hospital;
  2. “Institution of higher education” means an educational institution which:
    1. Admits as regular students only individuals having a certificate of graduation from a high school, or the recognized equivalent of such a certificate;
    2. Is legally authorized in this state to provide a program of education beyond high school;
    3. Provides an educational program for which it awards a bachelor’s or higher degree, or provides a program which is acceptable for full credit toward such a degree, a program of postgraduate or postdoctoral studies, or a program of training to prepare students for gainful employment in a recognized occupation; and
    4. Is a public or other nonprofit institution;
  3. Notwithstanding any of the foregoing provisions of this section, all recognized colleges and universities in this state are institutions of higher education for purposes of this chapter; and
    1. “Educational institution,” including an institution of higher education as defined in subsection (2) of this section, means: (4) (a) “Educational institution,” including an institution of higher education as defined in subsection (2) of this section, means:
      1. A school in which participants, trainees, or students are offered an organized course of study or training designed to transfer to them knowledge, skills, information, doctrines, attitudes or abilities from, by, or under the guidance of an instructor or teacher;
      2. It is approved, licensed, or issued a permit to operate as a school by the State Department of Education or other government agency that is authorized within the state to approve, license, or issue a permit for the operation of a school; and
      3. The courses of study or training which it offers may be academic, technical, trade, or preparation for gainful employment in a recognized occupation.
    2. In any particular case, the question of whether or not an institution is an educational institution within the meaning of the criteria described above will depend on what that particular institution actually does.

History. Enact. Acts 1972, ch. 21, § 4; 1974, ch. 74, Art. VI, § 107(1); 1978, ch. 389, § 7, effective July 1, 1978; 1998, ch. 426, § 564, effective July 15, 1998; 2005, ch. 99, § 610, effective June 20, 2005.

Opinions of Attorney General.

Employees of institutions of higher education are included under coverage of the unemployment compensation program under this section. OAG 75-219 .

341.069. Governmental entity.

For the purpose of this chapter, a governmental entity is:

  1. The state government of the Commonwealth of Kentucky and its instrumentalities or a governmental unit thereof as provided for in KRS 341.060 ;
  2. A county government and its instrumentalities;
  3. A city or municipal government and its instrumentalities;
  4. A city-county urban (merged) government and its instrumentalities;
  5. A public school district and its instrumentalities;
  6. An independent governmental organization established pursuant to Kentucky Revised Statutes or by executive order of the Governor;
  7. A special district that is funded or partially funded by county government;
  8. A joint operation of two (2) or more of the units defined in subsections (1) through (7) above;
  9. A joint operation of one (1) or more of the units defined in subsections (1) through (8) above with another state or a political subdivision or instrumentality thereof;
  10. An employing unit which has service performed in covered employment pursuant to KRS 341.050(1)(d) which is not defined as a governmental entity in subsections (1) through (9) of this section is a governmental entity under this subsection.

History. Enact. Acts 1978, ch. 389, § 8, effective July 1, 1978; 1980, ch. 385, § 2, effective July 15, 1980.

Opinions of Attorney General.

KRS 341.060 , this section and KRS 341.070 read together make it clear that the county government and its instrumentalities are the “employing unit” or the “subject employer.” OAG 79-433 .

341.070. Subject employer.

As used in this chapter, unless the context clearly requires otherwise, “subject employer” means:

  1. Any employing unit which in any calendar quarter in either the current or preceding calendar year paid for service in covered employment wages of fifteen hundred dollars ($1,500) or more.
  2. Any employing unit which for some portion of a day in each of twenty (20) different calendar weeks, whether or not such weeks are consecutive, in either the current or the preceding calendar year, had in covered employment at least one (1) worker (irrespective of whether the same worker was in employment in each such day).
  3. Any employing unit for which service in covered employment, as defined in paragraph (d) of subsection (1) of KRS 341.050 , is performed.