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AN ACT relating to employment. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
Section 1. KRS 337.010 is amended to read as follows: 3
(1) As used in this chapter, unless the context requires otherwise: 4
(a) "Commissioner" means the commissioner of the Department of Workplace 5
Standards under the direction and supervision of the secretary of the 6
Education and Labor Cabinet; 7
(b) "Department" means the Department of Workplace Standards in the 8
Education and Labor Cabinet; 9
(c) 1. "Wages" includes any compensation due to an employee by reason of 10
his or her employment, including salaries, commissions, vested vacation 11
pay, overtime pay, severance or dismissal pay, earned bonuses, and any 12
other similar advantages agreed upon by the employer and the employee 13
or provided to employees as an established policy. The wages shall be 14
payable in legal tender of the United States, checks on banks, direct 15
deposits, or payroll card accounts convertible into cash on demand at 16
full face value, subject to the allowances made in this chapter. However, 17
an employee may not be charged an activation fee and the payroll card 18
account shall provide the employee with the ability, without charge, to 19
make at least one (1) withdrawal per pay period for any amount up to 20
and including the full account balance. 21
2. For the purposes of calculating hourly wage rates for scheduled 22
overtime for professional firefighters, as defined in KRS 95A.210(8), 23
"wages" shall not include the distribution to qualified professional 24
firefighters by local governments of supplements received from the 25
Firefighters Foundation Program Fund. For the purposes of calculating 26
hourly wage rates for unscheduled overtime for professional firefighters, 27 UNOFFICIAL COPY 25 RS BR 1749
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as defined in KRS 95A.210(9), "wages" shall include the distribution to 1
qualified professional firefighters by local governments of supplements 2
received from the Firefighters Foundation Program Fund; 3
(d) "Employer" is any person, either individual, corporation, partnership, agency, 4
or firm who employs an employee and includes any person, either individual, 5
corporation, partnership, agency, or firm acting directly or indirectly in the 6
interest of an employer in relation to an employee; and 7
(e) "Employee" is any person employed by or suffered or permitted to work for 8
an employer, except that: 9
1. Notwithstanding any voluntary agreement entered into between the 10
United States Department of Labor and a franchisee, neither a franchisee 11
nor a franchisee's employee shall be deemed to be an employee of the 12
franchisor for any purpose under this chapter; and 13
2. Notwithstanding any voluntary agreement entered into between the 14
United States Department of Labor and a franchisor, neither a franchisor 15
nor a franchisor's employee shall be deemed to be an employee of the 16
franchisee for any purpose under this chapter. 17
For purposes of this paragraph, "franchisee" and "franchisor" have the same 18
meanings as in 16 C.F.R. sec. 436.1. 19
(2) As used in KRS 337.275 to 337.325, 337.345, and 337.385 to 337.405, unless the 20
context requires otherwise: 21
(a) "Employee" is any person employed by or suffered or permitted to work for 22
an employer, but shall not include: 23
1. [Any individual employed in agriculture; 24
2. ]Any individual employed in a bona fide executive, administrative, 25
supervisory, or professional capacity, or in the capacity of outside 26
salesman, or as an outside collector as the terms are defined by 27 UNOFFICIAL COPY 25 RS BR 1749
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administrative regulations of the commissioner; 1
2[3]. Any individual employed by the United States; 2
[4. Any individual employed in domestic service in or about a private 3
home. The provisions of this section shall include individuals employed 4
in domestic service in or about the home of an employer where there is 5
more than one (1) domestic servant regularly employed;] 6
3[5]. Any individual classified and given a certificate by the commissioner 7
showing a status of learner, apprentice, worker with a disability, 8
sheltered workshop employee, and student under administrative 9
procedures and administrative regulations prescribed and promulgated 10
by the commissioner. This certificate shall authorize employment at the 11
wages, less than the established fixed minimum fair wage rates, and for 12
the period of time fixed by the commissioner and stated in the certificate 13
issued to the person; 14
4[6]. Employees of retail stores, service industries, hotels, motels, and 15
restaurant operations whose average annual gross volume of sales made 16
for business done is less than ninety-five thousand dollars ($95,000) for 17
the five (5) preceding years exclusive of excise taxes at the retail level 18
or if the employee is the parent, spouse, child, or other member of his or 19
her employer's immediate family; 20
5[7]. Any individual employed as a baby-sitter in an employer's home, or an 21
individual employed as a companion by a sick, convalescing, or elderly 22
person or by the person's immediate family, to care for that sick, 23
convalescing, or elderly person and whose principal duties do not 24
include housekeeping; 25
6[8]. Any individual engaged in the delivery of newspapers to the consumer; 26
7[9]. Any individual subject to the provisions of KRS Chapters 7, 16, 27A, 27 UNOFFICIAL COPY 25 RS BR 1749
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30A, and 18A provided that the secretary of the Personnel Cabinet shall 1
have the authority to prescribe by administrative regulation those 2
emergency employees, or others, who shall receive overtime pay rates 3
necessary for the efficient operation of government and the protection of 4
affected employees; 5
8[10]. Any employee employed by an establishment which is an 6
organized nonprofit camp, religious, or nonprofit educational conference 7
center, if it does not operate for more than two hundred ten (210) days in 8
any calendar year; 9
9[11]. Any employee whose function is to provide twenty-four (24) hour 10
residential care on the employer's premises in a parental role to children 11
who are primarily dependent, neglected, and abused and who are in the 12
care of private, nonprofit childcaring facilities licensed by the Cabinet 13
for Health and Family Services under KRS 199.640 to 199.670; 14
10[12]. Any individual whose function is to provide twenty-four (24) hour 15
residential care in his or her own home as a family caregiver, family 16
home provider, or adult foster care provider and who is approved to 17
provide family caregiver services to an adult with a disability through a 18
contractual relationship with a community board for mental health or 19
individuals with an intellectual disability established under KRS 20
210.370 to 210.460 or through a contractual relationship with a certified 21
waiver provider as defined in 907 KAR 7:005 sec. 1(5), or is certified or 22
licensed by the Cabinet for Health and Family Services to provide adult 23
foster care; 24
11[13]. A direct seller as defined in Section 3508(b)(2) of the Internal 25
Revenue Code of 1986; or 26
12[14]. Any individual whose function is to provide behavior support 27 UNOFFICIAL COPY 25 RS BR 1749
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services, behavior programming services, case management services, 1
community living support services, positive behavior support services, 2
or respite services through a contractual relationship with a certified 3
waiver provider, as defined in 907 KAR 7:005 sec. 1(5), pursuant to a 4
1915(c) home and community based services waiver program, as 5
defined in 907 KAR 7:005 sec. 1(2); 6
(b)[ "Agriculture" means farming in all its branches, including cultivation and 7
tillage of the soil; dairying; production, cultivation, growing, and harvesting 8
of any agricultural or horticultural commodity; raising of livestock, bees, 9
furbearing animals, or poultry; and any practice, including any forestry or 10
lumbering operations, performed on a farm in conjunction with farming 11
operations, including preparation and delivery of produce to storage, to 12
market, or to carriers for transportation to market; 13
(c)] "Gratuity" means voluntary monetary contribution received by an employee 14
from a guest, patron, or customer for services rendered; 15
(c)[(d)] "Tipped employee" means any employee engaged in an occupation in 16
which he or she customarily and regularly receives more than thirty dollars 17
($30) per month in tips; and 18
(d)[(e)] "U.S.C." means the United States Code. 19
Section 2. KRS 337.020 is amended to read as follows: 20
Every employer doing business in this state shall, as often as semimonthly, pay to each of 21
its employees all wages or salary earned to a day not more than eighteen (18) days prior 22
to the date of that payment. Any employee who is absent at the time fixed for payment, or 23
who, for any other reason, is not paid at that time, shall be paid thereafter at any time 24
upon six (6) days' demand. No employer subject to this section shall, by any means, 25
secure exemption from it. Every such employee shall have a right of action against any 26
such employer for the full amount of his wages due on each regular pay day. The 27 UNOFFICIAL COPY 25 RS BR 1749
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provisions of this section do not apply to those individuals defined in KRS 1
337.010(2)(a)1[2]. 2
Section 3. KRS 342.610 is amended to read as follows: 3
(1) Every employer subject to this chapter shall be liable for compensation for injury, 4
occupational disease, or death without regard to fault as a cause of the injury, 5
occupational disease, or death. 6
(2) A contractor who subcontracts all or any part of a contract and his or her carrier 7
shall be liable for the payment of compensation to the employees of the 8
subcontractor unless the subcontractor primarily liable for the payment of such 9
compensation has secured the payment of compensation as provided for in this 10
chapter. Any contractor or his or her carrier who shall become liable for such 11
compensation may recover the amount of such compensation paid and necessary 12
expenses from the subcontractor primarily liable therefor. A person who contracts 13
with another: 14
(a) To have work performed consisting of the removal, excavation, or drilling of 15
soil, rock, or mineral, or the cutting or removal of timber from land; or 16
(b) To have work performed of a kind which is a regular or recurrent part of the 17
work of the trade, business, occupation, or profession of such person 18
shall for the purposes of this section be deemed a contractor, and such other person 19
a subcontractor. This subsection shall not apply to the owner or lessee of land 20
principally used for agriculture. 21
(3) Liability for compensation shall not apply to injury, occupational disease, or death 22
to the employee if the employee willfully intended to injure or kill himself, herself, 23
or another. 24
(4) If an employee voluntarily introduced an illegal, nonprescribed substance or 25
substances or a prescribed substance or substances in amounts in excess of 26
prescribed amounts into his or her body detected in the blood, as measured by a 27 UNOFFICIAL COPY 25 RS BR 1749
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scientifically reliable test, that could cause a disturbance of mental or physical 1
capacities, it shall be presumed that the illegal, nonprescribed substance or 2
substances or the prescribed substance or substances in amounts in excess of 3
prescribed amounts caused the injury, occupational disease, or death of the 4
employee and liability for compensation shall not apply to the injury, occupational 5
disease, or death to the employee. 6
(5) If injury or death results to an employee through the deliberate intention of his or 7
her employer to produce such injury or death, the employee or the employee's 8
dependent as herein defined shall receive the amount provided in this chapter in a 9
lump sum to be used, if desired, to prosecute the employer. The dependents may 10
bring suit against the employer for any amount they desire. If injury or death results 11
to an employee through the deliberate intention of his or her employer to produce 12
such injury or death, the employee or the employee's dependents may take under 13
this chapter, or in lieu thereof, have a cause of action at law against the employer as 14
if this chapter had not been passed, for such damage so sustained by the employee, 15
his dependents or personal representatives as is recoverable at law. If a suit is 16
brought under this subsection, all right to compensation under this chapter shall 17
thereby be waived as to all persons. If a claim is made for the payment of 18
compensation or any other benefit provided by this chapter, all rights to sue the 19
employer for damages on account of such injury or death shall be waived as to all 20
persons. 21
(6) Prior to issuing any building permit pursuant to KRS 198B.060(10), every local 22
building official shall require proof of workers' compensation coverage from the 23
builder before a permit is issued. A person who is exempt under the exception 24
contained in KRS 342.650(1)[(2)], and any contractor otherwise exempt from this 25
chapter, shall so certify to the local building official, in writing and on a form 26
prescribed by the commissioner, in lieu of providing proof of workers' 27 UNOFFICIAL COPY 25 RS BR 1749
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compensation coverage. 1
(7) Every employer subject to this chapter, at its principal office and such other 2
locations where employees customarily report for payroll and personnel matters, 3
shall post a notice stating the name of its workers' compensation insurance carrier 4
and policy number, setting forth the means to access medical care for injuries, the 5
employee's obligation to give notice of accidents, and such other matters 6
concerning the employee's rights under this chapter as may be required by the 7
commissioner so as to afford every employee the opportunity to become informed 8
about the employer's workers' compensation program. The format and contents of 9
the notice shall be established by the commissioner through administrative 10
regulation, and copies shall be provided to the employer by its insurance carrier. 11
Section 4. KRS 342.630 is amended to read as follows: 12
The following shall constitute employers mandatorily subject to, and required to comply 13
with, the provisions of this chapter: 14
(1) Any person[, other than one engaged solely in agriculture,] that has in this state one 15
(1) or more employees subject to this chapter. 16
(2) The state, any agency thereof, and each county, city of any class, school district, 17
sewer district, drainage district, tax district, public or quasipublic corporation, or 18
any other political subdivision or political entity of the state that has one (1) or 19
more employees subject to this chapter. 20
Section 5. KRS 342.650 is amended to read as follows: 21
The following employees are exempt from the coverage of this chapter: 22
(1)[ Any person employed as a domestic servant in a private home by an employer who 23
has less than two (2) employees each regularly employed forty (40) or more hours a 24
week in domestic servant employment; 25
(2)] Any person employed, for not exceeding twenty (20) consecutive work days, to do 26
maintenance, repair, remodeling, or similar work in or about the private home of the 27 UNOFFICIAL COPY 25 RS BR 1749
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employer, or if the employer has no other employees subject to this chapter, in or 1
about the premises where that employer carries on his or her trade, business, or 2
profession; 3
(2)[(3)] Any person performing services in return for aid or sustenance only, received 4
from any religious or charitable organization; 5
(3)[(4)] Any person for whom a rule of liability for injury or death is provided by the 6
laws of the United States, except those persons covered under Title IV, Public Law 7
91-173, 91st Congress, commonly referred to as the Black Lung Benefits of the 8
Federal Coal Mine Health and Safety Act of 1969, or as amended; 9
[(5) Any person employed in agriculture;] 10
(4)[(6)] Any person who would otherwise be covered but who elects not to be covered 11
in accordance with the administrative regulations promulgated by the 12
commissioner; 13
(5)[(7)] Any person participating as a driver or passenger in a voluntary vanpool or 14
carpool program while that person is on the way to or from his or her place of 15
employment. For the purposes of this subsection, carpool or vanpool means any 16
method by which two (2) or more employees are transported from their residences 17
to their places of employment; 18
(6)[(8)] Members of a religious sect or division that is an adherent of established 19
tenets or teachings by reason of which members are conscientiously opposed to 20
acceptance of the benefits of any public or private insurance which makes payments 21
in the event of death, disability, old age, or retirement, or makes payments toward 22
the cost of, or provides services for, medical bills, including the benefits of any 23
insurance system established by the Federal Social Security Act, 42 U.S.C. secs. 24
301 et seq., and it is the practice, and has been for ten (10) or more years, for 25
members of the sect or division to make reasonable provision for their dependent 26
members; 27 UNOFFICIAL COPY 25 RS BR 1749
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(7)[(9)] Any licensed or unlicensed, commissioned, ordained or unordained, or lay 1
minister of religion who has no set oral or written agreement with a church or 2
religious organization to receive a fixed regular payment for services provided to 3
the church or who works no more than ten (10) hours per week; 4
(8)[(10)] Any caretaker of a cemetery or property owned or operated by a church or 5
religious organization who provides general cleanup services, including but not 6
limited to mowing, raking, dusting, sweeping, and mopping which could be 7
performed for other individuals or organizations, who works no more than ten (10) 8
hours per week; 9
(9)[(11)] A direct seller as defined in Section 3508(b)(2) of the Internal Revenue Code 10
of 1986; and 11
(10)[(12)] Any individual whose function is to provide behavior support services, 12
behavior programming services, case management services, community living 13
support services, positive behavior support services, or respite services through a 14
contractual relationship with a certified waiver provider, as defined in 907 KAR 15
7:005 sec. 1(5), pursuant to a 1915(c) home and community based services waiver 16
program, as defined in 907 KAR 7:005 sec. 1(2). 17
Section 6. KRS 304.12-250 is amended to read as follows: 18
(1) It shall be an unfair or deceptive trade practice for a health insurance policy to 19
exclude coverage for a health condition based solely on the fact that the health 20
condition is work-related, unless the claimant is eligible for benefits under any 21
workers' compensation act or similar law. 22
(2) For purposes of this section, all employees shall be deemed to be eligible for 23
benefits under any workers' compensation act or similar law, except for: 24
(a) Any employee exempted from workers' compensation coverage pursuant to 25
KRS 342.650(1), (2), [(3)]or, (5)[, or (7)]; and 26
(b) The owner or owners of a business, including qualified partners as defined in 27 UNOFFICIAL COPY 25 RS BR 1749
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KRS 342.012(3). 1
Section 7. KRS 342.690 is amended to read as follows: 2
(1) If an employer secures payment of compensation as required by this chapter, the 3
liability of such employer under this chapter shall be exclusive and in place of all 4
other liability of such employer to the employee, his legal representative, husband 5
or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover 6
damages from such employer at law or in admiralty on account of such injury or 7
death. For purposes of this section, the term "employer" shall include a "contractor" 8
covered by [subsection (2) of ]KRS 342.610(2), whether or not the subcontractor 9
has in fact, secured the payment of compensation. The liability of an employer to 10
another person who may be liable for or who has paid damages on account of injury 11
or death of an employee of such employer arising out of and in the course of 12
employment and caused by a breach of any duty or obligation owed by such 13
employer to such other shall be limited to the amount of compensation and other 14
benefits for which such employer is liable under this chapter on account of such 15
injury or death, unless such other and the employer by written contract have agreed 16
to share liability in a different manner. The exemption from liability given an 17
employer by this section shall also extend to such employer's carrier and to all 18
employees, officers or directors of such employer or carrier, provided the 19
exemption from liability given an employee, officer or director or an employer or 20
carrier shall not apply in any case where the injury or death is proximately caused 21
by the willful and unprovoked physical aggression of such employee, officer or 22
director. 23
(2) If an employer fails to secure payment of compensation as required by this chapter, 24
an injured employee, or his legal representative in case death results from the 25
injury, may claim compensation under this chapter and in addition may maintain an 26
action at law or in admiralty for damages on account of such injury or death, 27 UNOFFICIAL COPY 25 RS BR 1749
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provided that the amount of compensation shall be credited against the amount 1
received in such action, and provided that, if the amount of compensation is larger 2
than the amount of damages received, the amount of damages less the employee's 3
legal fees and expenses shall be credited against the amount of compensation. In 4
such action the defendant may not plead as a defense that the injury was caused by 5
the negligence of a fellow servant, that the employee assumed the risks of his 6
employment, or that the injury was due to the contributory negligence of the 7
employee. 8
(3) An employer shall retain all common law defenses against any action by an 9
employee who elects not to be covered, as provided under[ subsection (6) of] KRS 10
342.650(4). 11
(4) (a) Notwithstanding any voluntary agreement entered into between the United 12
States Department of Labor and a franchisee, neither a franchisee nor a 13
franchisee's employee shall be deemed to be an employee of the franchisor for 14
any purpose under this chapter. 15
(b) Notwithstanding any voluntary agreement entered into between the United 16
States Department of Labor and a franchisor, neither a franchisor nor a 17
franchisor's employee shall be deemed to be an employee of the franchisee for 18
any purpose under this chapter. 19
(c) For purposes of this subsection, "franchisee" and "franchisor" have the same 20
meanings as in 16 C.F.R. sec. 436.1. 21