TECHNICAL AMENDMENT

September 8, 2011

      803 KAR 2:250. Discrimination.

      RELATES TO: KRS Chapter 338

      STATUTORY AUTHORITY: KRS 337.295

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 338.121 prohibits employers from discriminating against any employee for involvement in an occupational safety and health investigation, complaint or related activity. The statute further requires the Commissioner of the Department of Workplace Standards [Executive Director, Office of Occupational Safety and Health], Kentucky Department of Labor, to investigate complaints of discrimination, determine whether a violation has occurred and issue a citation to an offending employer. The Kentucky Occupational Safety and Health Review Commission is empowered by KRS 338.121 to order all appropriate relief including reinstatement of the employee to his former position with back pay. The function of this administrative regulation is to set out the procedure to be followed by the commissioner [executive director] upon receipt of a complaint alleging a violation of this statute.

      Section 1. Definitions. Unless defined herein, all definitions will be as defined in 803 KAR 50:010 and KRS 338.015.

      (1) “Secretary” means Secretary of the Labor Cabinet ["Commissioner" means the Commissioner of the Kentucky Department of Labor].

      (2) “Commissioner” means the Commissioner of the Department of Workplace Standards under the direction and supervision of the Secretary of the Labor Cabinet ["Executive director" means the Executive Director of the Kentucky Department of Workplace Standards under the direction and supervision of the Secretary of the Department of Labor].

      (3) "Affected employee" means any employee discharged or otherwise discriminated against by any person because such employee has filed a complaint or has participated or testified, or is about to participate or testify in any investigation with the Labor Cabinet [Department of Labor] or proceeding before the Review Commission.

      (4) "Prohibited activity" means a wrongful discharge of an employee on the basis of his/her filing a complaint or participation in any investigation instituted by the Labor Cabinet [Department of Labor] or any proceeding before the Review Commission or any other discriminatory action such as but not limited to suspensions, written reprimands, demotions in positions taken against the employee for the above stated activities or for exercising any right afforded under KRS Chapter 338.

      Section 2. Complaints; Recipient of; Time for Filing; Form of Complaints. (1) Any employee may file a complaint of discrimination of protected activity with the commissioner [executive director] or his designee. Such complaint may be made orally or in writing.

      (2) Complaints shall be filed within 120 days of the occurrence of the alleged violation of protected activity.

      (3) Complaints shall state name and address of affected employee, name and address of employer, and description of alleged violation.

      (4) Notification shall be given to the employer of the receipt by the commissioner [executive director] of a complaint within five (5) working days.

      Section 3. Settlement. Settlement is encouraged at any stage of the proceedings where such settlement is consistent with the provisions and objectives of the Act. Primary consideration will be the reinstatement of employee to former position with back pay and assurance of the future protection of the rights of all employees under KRS Chapter 338.

      Section 4. Withdrawal of Complaint. Any request by an employee to withdraw a complaint filed with the commissioner [executive director] will be given substantial weight; however, the commissioner [executive director] will make the final determination as to whether a complaint and subsequent investigation will be terminated.

      Section 5. Arbitration or Other Agency Proceedings. (1) An employee who files a complaint under KRS 338.121(3) may also pursue remedies under grievance arbitration proceedings in collective bargaining agreements. In addition, the complainant may concurrently resort to other agencies for relief, such as the National Labor Relations Board. The commissioner’s [executive director’s] jurisdiction to entertain KRS 338.121(3) complaints, to investigate, and to determine whether discrimination has occurred, is independent of the jurisdiction of other agencies or bodies. The commissioner [executive director] may investigate and issue citations against any party found in violation regardless of the pendency or determination of other proceedings.

      (2) Where a complainant is pursuing remedies, other than those provided by KRS 338.121, postponement of the commissioner’s [executive director’s] determination and deferral to the results of such proceedings may be made.

      Section 6. Investigation of Complaint; Issuance of Citation; Notice to Parties; Right of Review. (1) Upon receipt of a complaint under Section 2 of this administrative regulation the commissioner [executive director] shall cause an investigation to be instituted. Such investigation shall be completed and the commissioner’s [executive director’s] determination issued within a reasonable time, but not to exceed ninety (90) days, absent extenuating circumstances.

      (2) If the commissioner [executive director] finds a violation of KRS 338.121 he shall issue a citation and recommended penalty. The citation shall include a determination by the commissioner [executive director] as to the merits of the alleged violation.

      (3) Notice of the determination shall be given to all affected parties.

      (4) In the event the commissioner [executive director] determines there has been no discriminatory action, the employee may petition the secretary [commissioner] for a review of the determination. Such petition shall be in writing and state reasons why review is requested. The secretary [commissioner] shall affirm the determination or remand it to the commissioner [executive director] for further investigation.

      Section 7. Employer Contest. Any citation and notice of proposed penalty shall state that it shall be deemed to be the final order of the Review Commission and not subject to review by any court or agency unless, within fifteen (15) working days from the date of receipt of such notice, the employer notifies the Commissioner of the Department of Workplace Standards [Executive Director, Office of Occupational Safety and Health] in writing that he intends to contest the citation and notification of proposed penalty before the Review Commission. Within seven (7) days of receipt of contest the commissioner [executive director] will forward copies of the citation and proposed penalty and notice of contest to the Review Commission.

      Section 8. Receipt by Review Commission of Citation and Notice of Contest. Proceedings under 803 KAR 50:010(1). Upon receipt by the commission of the citation and proposed penalty and employer's notice of contest, the commission shall institute proceedings in compliance with the applicable rules as adopted by the Review Commission in 803 KAR 50:010.

      Section 9. Proposed Penalties. (1) Concurrent with the issuance of a citation, the commissioner [executive director] shall notify the employer by certified mail of the proposed penalty under KRS 338.991.

      (2) The commissioner [executive director] shall determine the amount of any proposed penalty, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer and the history of previous violations.

      (3) Appropriate penalties shall be proposed with respect to an alleged discriminatory act even though after being informed of such alleged violation by the commissioner [executive director], the employer immediately abates, or initiates steps to abate, such alleged violation. (13 Ky.R. 1398; eff. 2-10-87; TAm eff. 8-9-2007; TAm eff. 9-8-2011.)