TECHNICAL AMENDMENT
September 8, 2011
803 KAR 2:090. Unwarranted inspections; complaint.
RELATES TO: KRS 338.121
STATUTORY AUTHORITY: KRS Chapter 13A
NECESSITY, FUNCTION, AND CONFORMITY:
Pursuant to the authority granted the Commissioner of the Department of
Workplace Standards [Executive Director, Office of Occupational Safety
and Health] by KRS 338.121, the following procedure has been formulated,
which an employee is to follow in filing a complaint alleging a violation of
KRS Chapter 338. The function of this administrative regulation is to outline
this procedure to be followed by the employee in filing his complaint; the
administrative regulation also outlines the procedure to be followed by the Commissioner
of the Department of Workplace Standards [Executive Director, Office of
Occupational Safety and Health] if he reviews the complaint and finds an
inspection is not warranted.
Section 1. Complaints by Employees. (1)
Any employee or representative of employees who believes that a violation of
KRS Chapter 338 exists in any workplace where such employee is employed may
request an inspection of such workplace by giving notice of the alleged
violation to the Commissioner of the Department of Workplace Standards [Executive
Director, Office of Occupational Safety and Health]. 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 employee or representative
of employees. A copy shall be provided the employer or his agent by the commissioner
[executive director] no later than at the time of inspection, except
that, upon the request of the person giving such notice, his name and the names
of individual employees referred to therein shall not appear in such copy or on
any record published, released, or made available by the Commissioner of the
Department of Workplace Standards [Executive Director, Office of Occupational
Safety and Health].(2) If upon receipt of such notification the commissioner
[executive director] determines that the complaint meets the
requirements set forth in subsection (1) of this section, and that there are
reasonable grounds to believe that the alleged violation exists, he shall cause
an inspection to be made as soon as practicable, to determine if such alleged
violation exists. Inspections under this section shall not be limited to
matters referred to in the complaint.
(3) Prior to or during any inspection
of a workplace, any employee or representative of employees employed in such
workplace may notify the Commissioner of the Department of Workplace
Standards [Executive Director, Office of Occupational Safety and Health]
in writing of any violation of KRS Chapter 338 which he has reason to believe exists
in such workplace. Any such notice shall comply with the requirements of
subsection (1) of this section.
(4) If, after an inspection based on a complaint, a citation is issued covering a violation or danger set forth in the complaint, a copy of the citation should be sent to the complainant at the same time it is sent to the employer.
(5) If, after an inspection based on a
complaint, the commissioner [executive director] determines that
a citation is not warranted with respect to a danger or violation alleged in
the complaint, the complainant must be informed in writing of such
determination. At the same time, the complainant should be notified of his
rights of review of such determination. The complaining party may obtain review
by submitting a written statement of position to the Commissioner of the
Department of Workplace Standards [Executive Director, Office of
Occupational Safety and Health].
(6) KRS 338.121(3)(a) provides: "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 others of any right afforded by this chapter."
Section 2. Inspection not Warranted;
Informal Review. (1) If the Commissioner of the Department of Workplace
Standards [Executive Director, Office of Occupational Safety and Health]
determines that an inspection is not warranted because there are no reasonable
grounds to believe that a violation or danger exists with respect to a
complaint under Section 1 of this administrative regulation, he shall notify
the complaining party in writing of such determination. The complaining party
may obtain review of such determination by submitting a written statement of
position to the commissioner [executive director]. Upon request
of the complaining party, the commissioner [executive director],
at his discretion, may hold an informal conference in which the complaining
party may orally present his views. After considering all written and oral
views presented, the commissioner [executive director] shall
affirm, modify, or reverse his determination and furnish the complaining party
a written notification of his decision and the reasons therefore. The decision
of the commissioner [executive director] shall be final and not
subject to further review.
(2) If the commissioner [executive
director] determines that an inspection is not warranted because the requirements
of Section 1 of this administrative regulation have not been met, he shall
notify the complaining party in writing of such determination. Such
determination shall be without prejudice to the filing of a new complaint
meeting the requirements of Section 1 of this administrative regulation. (OSH 107; 1 Ky.R. 160; eff. 12-11-74; Am. 9 Ky.R. 43; eff. 8-11-82; TAm eff. 8-9-2007; TAm eff.
9-8-2011.)