[1995/oagheade.htm]

OAG 95-38

November 30, 1995

Subject: The “Working on Sunday” Laws

Written By: Diane Schuler Fleming

Requested By: Anne Meagher Northup

Syllabus: KRS 436.160 prohibits working on Sundays, unless it can be demonstrated that the business or activity qualifies for one of the fourteen enumerated exceptions in Subsection (1) or qualifies for the “continuous work scheduling” exception in Subsection (4). If an employer utilizes the “continuous work scheduling” exception, he must provide each employee with one (1) day of rest each calendar week, or be subject to the fines set out in Subsection (1). KRS 337.050 contains provisions for overtime pay. It applies only to those businesses which meet the exceptions specified in KRS 436.160(1) and (3). KRS 436.165 applies only to retail sales and activities and cannot be construed to apply to private manufacturing concerns.

OAGs Cited: None

Statutes Construed: KRS 436.160; KRS 532.020; KRS 436.165; KRS 337.050; and KRS 446.070.

OPINION OF THE ATTORNEY GENERAL

In this opinion our office provides an interpretation of the statutes relating to working on Sundays. Specifically, we address the “continuous work scheduling” exception, overtime pay and penalties. Several questions have been presented, beginning with the following:

Do private factories or manufacturing facilities come within the purview of any exceptions to the “working on Sunday” prohibition?

As a general rule, working on Sunday is prohibited. This rule, which appears in KRS 436.160(1), makes it an offense to work or to employ someone on Sunday. However, the statute does provide a list of fourteen exceptions to the rule. They are:

� ordinary household duties;

� work of necessity;

� public services and public utilities;

� members of a religious society that observes a weekly Sabbath other than Sunday;

� amateur sports and athletic games;

� grocery stores;

� drug stores;

� gift and souvenir shops;

� fishing tackle and bait shops;

� movie theaters;

� chautauquas;

� filling stations;

� opera; and

� “employers using continuous work scheduling provided that such scheduling permits at least one (1) day of rest each calendar week for each employe.”

Logically, from the enumerated list, there are two exceptions which a private factory or manufacturing facility may qualify for. If the company can show that it does “work of necessity,” or utilizes continuous work scheduling, it would qualify for an exception to the working on Sundays laws.

The court in Natural Gas Products Co. v. Thurman, Ky., 205 Ky. 100, 265 S.W. 475 (1924), thoroughly analyzed the meaning of the term “work of necessity.” It concluded that it does not mean an absolute or physical necessity, and that each decision must be made on a case-by-case basis. To illustrate its point, the court provided several examples including the curing of tobacco to prevent it from being damaged in the barn. The court went on to quote from McAfee v. Commonwealth, 173 Ky. 83, 190 S.W. 671 (1917), which defined work of necessity as follows:

The necessity that will excuse engaging in work or business on the Sabbath day need not be a physical necessity or an imperative or overpowering necessity. It need be only a reasonable necessity and one that is created by some real or unexpected emergency or uncommon or extraordinary condition. The fact that the failure to do something may cause interruption or delay in the ordinary course of business, or some discomfort or inconvenience to the individual affected or the public, will not make the doing of the thing a work of necessity. It must be something that not to do would work severe hardship or loss or unusual discomfort or inconvenience either to the individual who does the thing complained of or to the person or persons for whom he does it.

Id. at 478.

The next set of questions centers on the criteria for qualifying for the “continuous work scheduling” exception, as referenced in KRS 436.160(4).

In Commonwealth v. Southerland, Ky., 601 S.W.2d 908 (1980), the court held that the General Assembly intended for the term “continuous work scheduling” to mean

[e]very day rather than every hour, and that an employer who routinely operates his business for a substantial period of time each and every day of the week may operate it on Sundays if each of his employes is allowed at least one full day off during each calendar week.

Although the court did not elaborate any further, it seems clear that a business which operates only five days a week would not qualify for the exception. To qualify for the exception, and thus be permitted to operate on Sundays, a business which routinely operates for a substantial period of time each day, Monday through Saturday, must provide each employee with at least one full day off during each calendar week.

Here we observe that nowhere in KRS 436.160 is there any limitation regarding the hours that an exempted business may operate on Sunday. Work of necessity and ordinary household duties may of course be performed at any time on Sunday; similarly, a business that uses continuous work scheduling and allows its employees one day off per week may operate during any hours without committing an offense under the statute.

Logically, then, the question arises, what is the criminal and civil liability of an employer who qualifies for the “continuous work scheduling” exception, but fails to give each employee one day of rest per week?

KRS 436.160(4) provides,

[s]ubsection (1) of this section shall not apply to employers using continuous work scheduling provided that such scheduling permits at least one (1) day of rest each calendar week for each employe.

Thus, a requirement for obtaining a continuous work scheduling exemption is that the employer must give each employee one day of rest per week. Failure to do so would nullify the exception and the employer would be subject to the penalties set out in KRS 436.160(1). Specifically, the employer

[s]hall be fined not less than two dollars ($2.00) nor more than fifty dollars ($50.00). The employment of every person employed in violation of this subsection shall be deemed a separate offense.

_Id.

Therefore, an employer who qualifies for the “continuous work scheduling” exception, but fails to give each employee one day of rest per week, would be subject to the criminal fines specified in KRS 436.160(1). Said punishment is by definition neither a felony nor a misdemeanor. KRS 532.020(4). Note that if an employee suffers an injury due to the violation of the statute, the employer may be subject to paying civil damages to the employee. The criminal fines specified in KRS 436.160(1) are not a bar to the recovery of civil damages. KRS 446.070.

The next set of questions presented ask,

How can KRS 436.160 be reconciled with KRS 337.050? Does KRS 337.050 supersede KRS 436.160? Does KRS 337.050 apply only to those businesses that meet the exceptions set out in KRS 436.160(3) or KRS 436.165?

KRS 436.160 and 337.050 are not mutually exclusive, but rather should be read in conjunction. KRS 436.160(1) prohibits working or employing another person to work on Sundays, unless it is

[i]n the course of ordinary household duties, work of necessity or charity or work required in the maintenance or operation of a public service or public utility plant or system . . .

or if one of the exceptions provided for in subsections (2), (3) or (4) is met. This statute is concerned only with setting provisions for the specified or qualified businesses to be open and operating on a Sunday.

If a company is allowed to operate on a Sunday, because it meets the exception stated in Subsection (4), i.e., the employer is using continuous work scheduling, then there is an additional requirement. The employer must provide that each employee is given at least one day of rest each calendar week. This legislative requirement is very specific and applies only to those employers who are permitted to work on Sundays due to the continuous work scheduling requirement. It does not apply to the 14 exceptions enumerated in subsection (3).

KRS 337.050 was enacted to provide for overtime pay. It states,

Any employer who permits any employee to work seven (7) days in any one (1) workweek shall pay him at the rate of time and a half for the time worked on the seventh day. For the purposes of this subsection, the term `workweek' shall mean a calendar week or any other period of seven consecutive days adopted by the employer as the workweek with the intention that the same shall be permanent and without the intention to evade the overtime provision set out herein. KRS 337.050(1).

Obviously, to be able to work seven days, the employer must meet the exceptions set out in KRS 436.160 (1), (3) or (4). However, because an employer who qualifies for the exception to the Sunday working rules pursuant to the continuous work scheduling requirement must provide his employees with one day of rest each calendar week, KRS 337.050 will not come into play. Therefore, the overtime pay provisions only apply to those businesses that meet the exceptions specified in KRS 436.160(1) and (3).

The final set of questions involves an interpretation of KRS 436.165 which states in pertinent part:

In addition to the provisions of KRS 436.160:

(1) The legislative body of any city, except as to activities permitted under KRS 436.160, shall have the exclusive power to enact ordinances or orders permitting and regulating other retail sales and activities on Sunday within its jurisdictional boundaries, subject to subsection (4) hereof.

* * *

(4) Notwithstanding subsections (1), (2) and (3) of this section, any ordinance, resolution or order adopted by the legislative body of any city or the fiscal court of any county pertaining to retail sales and activities on Sunday shall be subject to the following limitations:

* * *

(d) Every employer engaged in retail sales on Sunday shall allow each person employed by him in connection with such business or service at least twenty-four (24) consecutive hours of rest in each calendar week in addition to the regular periods of rest normally allowed or legally required in each working day. . . .

Specifically, the question is whether or not the word “retail” modifies “sales” as well as “activities.” In addition, could a private manufacturing facility or business qualify as an “activity” under KRS 436.165 and be subject to the control of a local regulatory body?

It is our opinion that “retail” was intended to modify both words, thereby creating the phrase “retail sales and activities.” (Emphasis added.) The term “activities” by its very nature is exceptionally broad in scope. To say that the legislature, by enacting KRS 436.165, intended to regulate all activities on Sundays would be an absurd conclusion.

Thus, we find that KRS 436.165 relates specifically to retail sales and activities. A private manufacturing facility or business would not be regulated by this statute as it does not meet the definition of retail sales and activities, and to do so would be to stretch the definition beyond its logical intent. Private manufacturing facilities and businesses are subject to the provisions of KRS 436.160.

In conclusion, KRS 436.160 prohibits working on Sundays, unless it can be demonstrated that the business or activity qualifies for one of the fourteen enumerated exceptions in subsection (1) or qualifies for the “continuous work scheduling” exception in Subsection (4). If an employer utilizes the “continuous work scheduling” exception, he must provide each employee with one (1) day of rest each calendar week, or be subject to the fines set out in subsection (1). KRS 337.050 contains provisions for overtime pay. It applies only to those businesses which meet the exceptions specified in KRS 436.160(1) and (3). KRS 436.165 applies only to retail sales and activities and cannot be construed to apply to private manufacturing concerns.

CHRIS GORMAN

ATTORNEY GENERAL

Diane Schuler Fleming

Assistant Attorney General