Request By:
Jerrold R. Perchik
2800 First National Tower
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Martin Glazer, Assistant Attorney General
You seek an opinion regarding the interpretation of 803 KAR 1:065, Sec. 5(3), specifically that provision allowing the parties (employer and employee) to enter into any reasonable agreement, concerning hours worked, which takes into consideration all pertinent facts as such provision pertains to an employee who resides on his employer's premises on a permanent basis or for extended periods of time.
You advise us that the Kentucky Department of Labor initially required that the employee reside on the employer's premises seven consecutive days, but that the position was modified to a minimum of five days. This position is based on administrative policy rather than statute or regulation.
You further advise that the Federal Department of Labor using similar language in its regulation pursuant to the federal Fair Labor Standards Act, has interpreted that section by not applying an arbitrary number of days for its application, but addresses each situation on its own merits and in some instances allows as few as one or two days as qualifying.
This request deals with the application of the Kentucky Minimum Wage Laws and their regulations and determination of the overtime provisions therein.
KRS 337.285 requires applicable employers to pay employees one and one-half times the hourly wage of employees for all hours worked in excess of 40 hours per work week.
The Kentucky Regulation in dispute, 803 KAR 1:065 is entitled, "Hours Worked. " Section 5 deals with sleeping time and other activities. Subsection 3 deals with an employee who resides on an employer's premises or working at home, to wit:
An employe who resides on his employer's premises on a permanent basis or for extended periods of time is not considered as working all the time he is on the premises. Ordinarily, he may engage in normal private pursuits and thus have enough time for eating, sleeping, entertaining, and other periods of complete freedom from all duties when he may leave the premises for purposes of his own. It is, of course, difficult to determine the exact hours worked under these circumstances and any reasonable agreement of the parties which takes into consideration all of the pertinent facts will be accepted. (Emphasis supplied.)
Apparently, the Kentucky Department of Labor has not considered "permanent" nor an "extended period of time" a person who only works one or two days per week for an employer although that person may be on duty the entire 24 hours each day.
We have been advised by federal personnel that the compliance office uses an interpretative bulletin allowing an agreement for deduction of sleeping and meal times where the employee works at least 24 hours provided that sleeping time allowed is between five and eight hours.
Of course, Kentucky is not bound to follow federal regulations, and the FLSA specifically does not preempt a state minimum wage law which is more restrictive, sets higher minimum wages, or a lower maximum work week. (Title 29 U.S.C. Sec. 218(a)).
Where an administrative agency has interpreted an act (or regulation) under its jurisdiction in a certain fashion, which interpretation is reasonable, and not inconsistent with the statute or regulation, and where the interpretation is based on an ambiguous section, the courts will give great weight to that administrative interpretation. Barnes v. Department of Revenue, Ky.App., 575 S.W.2d 169 (1978); Brennan v. Owensboro-Daviess County Hospital, City of Owensboro, Ky., 523 F.2d 1013 (C.A. 1975), cert. denied; Owensboro-Davis County Hospital Inc. v. Usery, 96 S. Ct. 2170, 425 U.S. 973, 48 L. Ed. 2d 796; Allison v. United States, 426 F.2d 1324 (C.A. Ky. 1970).
So, technically, the Kentucky Department of Labor could, under the statute, regulation, and case law, enforce the five-day period as a minimal work period qualifying for "permanent" or "extended period of time. "
However, the department may wish to review that interpretation to consider a lesser period (such as three or four days, more than one-half of a normal work week) , or revise the regulation itself to make the language a little clearer.