803 KAR 1:035. Hearing procedure.
RELATES TO: KRS 337.020-337.405
STATUTORY AUTHORITY: KRS 337.295
NECESSITY, FUNCTION, AND CONFORMITY: KRS 337.310 requires the Executive Director of Workplace Standards, Labor Department, to decide all questions of fact arising under KRS 337.020 to 337.405. KRS Chapter 13A and 337.295 authorizes the executive director to issue administrative regulations pertaining to these statutes. The function of this administrative regulation is to set up the procedure to be followed by the Executive Director of Workplace Standards in deciding the questions of fact as required by the statute and to insure that the parties to proceedings concerning alleged violations of the statutes are afforded a fair opportunity to present any and all relevant proof on the matter.
Section 1. Procedure. (1) The Executive Director of Workplace Standards, or his authorized agent, shall investigate any complaint or routinely inspect records relating to an alleged violation of KRS 337.020 to 337.405.
(2) Where a settlement cannot be reached between the employer and employee and if an investigation reveals that questions of fact are in issue or the complaint or routine inspection gives the executive director, or his authorized agent, good cause to believe that factual issues need to be resolved, then the executive director, or his authorized agent, shall evaluate all proof submitted and render his tentative findings of fact. The proof to be evaluated by the executive director, or his authorized agent, shall include, but is not limited to: the findings of the investigator, sworn affidavits, contractual agreements, payroll records, and other evidence relating to an alleged violation of KRS 337.020 to 337.405.
(3) The party suffering adversely from these tentative findings of facts shall have fifteen (15) days from the issuance of the findings to submit a petition for a fact-finding hearing to the executive director. The petition shall contain a brief statement of the petitioner's grounds for believing the tentative findings of fact to be in error and any affirmative defense to the findings. Failure to state such grounds or defenses shall be cause for the executive director, or his authorized agent, to deny the petitioner a hearing. The executive director, or his authorized agent, shall set a hearing date in order to make final findings of fact concerning the alleged statutory violation. The parties shall be notified of the hearing date by return receipt mail at least fifteen (15) days prior to the hearing. If a petition for a fact-finding hearing is not sought or granted, then the tentative findings of fact shall become a final order fifteen (15) days after the issuance of the tentative order.
(4) The executive director, or his authorized agent, may conduct the hearing in either the Frankfort or Louisville offices of the Labor Department. However, with unanimous consent of the parties and the executive director, or his authorized agent, the hearing may be held at a site in the Commonwealth mutually agreeable to the parties and the executive director, or his authorized agent.
(5) The hearings shall not be governed by the rules of evidence prevailing in the courts of the Commonwealth. However, due regard will be had for generally accepted rules of administrative agency hearings in the Commonwealth. A written transcript of the hearing shall be made, unless the parties and the hearing officer agree that the hearing be video taped, in which event the video tape shall serve as record of the proceedings.
(6) Subsequent to the hearing, but within thirty (30) days of receipt of the hearing record, the executive director, or his authorized agent, shall evaluate the proof and render his final findings of fact and order, unless otherwise agreed to by the parties. (4 Ky.R. 219; eff. 1-4-78; Am. 5 Ky.R. 143; eff. 10-4-78; 6 Ky.R. 693; 7 Ky.R. 299; eff. 9-3-80; 21 Ky.R. 568; 1051; eff. 10-10-94; TAm eff. 8-9-2007.)