Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS
338.015,
338.071,
338.121,
338.141,
338.991
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
338.051(3) requires the
Occupational Safety and Health Standards Board to promulgate occupational
safety and health administrative regulations and authorizes the chairman to
reference federal standards without board approval if necessary to meet federal
time requirements.
KRS
338.061 authorizes the board to establish,
modify, or repeal standards and reference federal standards. This
administrative regulation establishes the procedure for discrimination
complaints pursuant to
KRS
338.121.
Section
1. Definitions.
(1)
"Commissioner" is defined by
KRS
338.015(7).
(2) "Complainant" means any person who makes
a "complaint" as defined by subsection (3) of this section.
(3) "Complaint" means any oral or written
communication related to an occupational safety and health concern made by an
employee to an employer, governmental agency, or made to the commissioner or
the commissioner's designee.
(4)
"Review commission" is defined by
KRS
338.015(8).
(5) "Secretary" is defined by
KRS
338.015(12).
(6) "Working days" means Monday through
Friday and does not include Saturday, Sunday, federal, or state holidays, and
the day of receipt of notice.
Section
2. Complaint.
(1) An employee or
former employee may file an oral or written complaint with the commissioner or
commissioner's designee alleging discrimination.
(2) A complaint shall be filed no more than
120 days from the occurrence of the alleged discriminatory activity.
(3) A complaint shall provide the name and
address of the complainant, name and address of employer, and description of
alleged discrimination.
(4) The
commissioner or commissioner's designee shall provide the employer notification
of the complaint upon initiation of an investigation.
Section 3. Settlement.
(1) Settlement shall be encouraged at any
stage of the proceedings if the settlement is consistent with KRS Chapter
338.
(2) Primary consideration
shall be the reinstatement of a complainant to his or her former position with
back pay and assurance of the future protection of the rights of all employees
pursuant to KRS Chapter 338.
Section
4. Withdrawal of Complaint to the Commissioner.
(1) A request by the complainant to withdraw
a complaint filed with the commissioner shall be given careful consideration
and substantial weight.
(2) The
commissioner or commissioner's designee shall make the final determination if a
complaint and subsequent investigation will be withdrawn and
terminated.
Section 5.
Arbitration or Other Agency Proceedings.
(1) A
complainant may pursue grievance arbitration proceedings in collective
bargaining agreements while requesting relief from other agencies such as the
National Labor Relations Board.
(2)
The commissioner's jurisdiction to receive
KRS
338.121(3) complaints, to
investigate, and to determine if discrimination occurred shall be independent
of the jurisdiction of other agencies or bodies.
(3) The commissioner or commissioner's
designee may investigate and issue citations against any party found in
violation regardless of the pendency or determination of other
proceedings.
(4) If a complainant
is pursuing remedies other than those established by
KRS
338.121, the commissioner's determination
shall be postponed.
Section
6.
(1) Investigation.
(a) Upon receipt of a complaint, the
commissioner or commissioner's designee shall initiate an
investigation.
(b) The
investigation shall be completed and the commissioner's determination issued
within ninety (90) days, absent extenuating circumstances.
(2) Citation.
(a) If the commissioner finds a violation of
KRS
338.121, he or she shall issue a citation,
with delivery or receipt confirmation, and recommend a penalty pursuant to
KRS 338.991.
(b) The citation shall include a
determination by the commissioner as to the merits of the alleged
violation.
(c) The commissioner or
commissioner's designee shall provide notice of the determination to all
affected parties.
(d) The citation
shall state that it shall be deemed the final order of the review commission
and not subject to review by any court or agency, as established by
KRS
338.141, unless, within fifteen (15) working
days from the date of receipt of the notice, the employer notifies the
commissioner in writing that the employer intends to contest the citation
before the review commission.
(e)
The commissioner shall immediately transmit a notice to contest to the review
commission in accordance with the rules of procedure prescribed by the
commission in accordance with
KRS
338.071.
(3) Penalty.
(a) The commissioner shall determine the
amount of a proposed penalty, based on the appropriateness of the penalty with
respect to the:
1. Size of the business of the
employer being charged,
2. Gravity
of the violation,
3. Good faith of
the employer, and
4. History of
previous violations.
(b)
Penalties shall be proposed with respect to an alleged discriminatory act even
if the employer immediately abates, or initiates steps to abate, the alleged
violation.
(4)
(a) If the commissioner determines there has
not been discriminatory action, the complainant shall be notified of his or her
rights of review.
(b)
1. The complainant may petition the secretary
for a review of the determination.
2. The petition shall be in writing and state
reasons why the review is requested.
(c) The secretary shall affirm the
determination or remand it to the commissioner for further
investigation.
STATUTORY AUTHORITY:
KRS
338.051¸338.061