THE INDUSTRIAL BOARD OF APPEALS
RULES OF PROCEDURE AND PRACTICE
Title 12 of the New York State Official Compilation of Codes Rules and Regulations, Chapter 1, Subchapter B, Part 66.
PROCEEDINGS UNDER SECTION 101 OF THE LABOR LAW
Section § 66.1 Application.
(a) Under section 101 any person in interest or his duly authorized agent may, except where otherwise prescribed by law, petition the board for a review of the validity or reasonableness of any rule, regulation or order made by the Commissioner of Labor under any provision of the Labor Law.
(b) For general rules of procedure and practice not specified in this Part, see Part 65 of this Subchapter.
NOTE: Appeals from minimum wage compliance orders issued under article 19, formerly had or taken under Part 71 of this Subchapter, are now had or taken as proceeding under this Part. See section 658, as amended, effective August 29, 1980, and sections 218, as amended, and 219.
(c) The board's procedure in these matters approximates that of a judicial proceeding. Customarily, a hearing is held at which the Commissioner of Labor, represented by counsel, appears as a defending party. The hearing is de novo original in nature and is in no sense an appeal. The parties may submit oral or documentary evidence which is material and relevant to the issues. The board will not take cognizance of any evidence submitted to any unit or division of the Department of Labor prior to the petition, unless it is introduced and accepted in the record of the proceeding or is a matter properly a subject of official notice.
§66.2 How review to be commenced.
(a) Review may be had only by filing a written petition with the board at its Albany office, no later than 60 days after the issuance of the rule, regulation or order objected to.
(b) A petition for review of an order issued under article 13 industrial homework law must be filed within 30 days following service of the order.
§66.3 Form and content of petition.
The petition shall be filed by mailing or delivering the original and three conformed copies thereof to the board's Albany office. The petition shall:
(a) contain a caption in the following form:
(1) state the address of each petitioner;
(2) state the location of the premises or establishment affected by the rule, regulation or order sought to be reviewed, if different from petitioner's address; and
(3) state the name and address of the representative, if any, of petitioner's employees, if the petition is for review of a decision issued under section 30 or of a notice of violation and order to comply issued under section 27-a;
(c) state the facts supporting the allegation that the petitioner is a person in interest, except in cases where the petitioner has been named in and served with a compliance order upon which the petition is predicated;
(d) annex a complete copy of the order, notice or decision in issue; if a rule or regulation is in issue, set it forth or identify it with particularity;
(e) state clearly and concisely the grounds on which the matter to be reviewed is alleged to be invalid or unreasonable, omitting conclusions of fact or law;
(f) state any other material or relevant facts;
(g) set forth with particularity the relief requested; and
(h) be signed by petitioner or authorized representative.
§66.4 Service of petition on Commissioner of Labor for answer.
Upon the filing of a petition, the board shall serve a copy thereof upon the Commissioner of Labor by transmittal to the office of the commissioner's general counsel. If the petition contains a statement of the name and address of the employees' representative, the board will mail a copy of the petition to such representative, for informational purposes.
§66.5 Answer to petition; time for answer; contents of answer; service and filing of answer.
(a) The Commissioner of Labor shall, within 30 days after receipt of the petition, file an answer with the board or move with respect to the petition. If a representative of petitioner's employee is named in the petition, the commissioner shall also serve a copy of the answer upon such representative, for informational purposes.
The answer shall be so drawn as to advise the petitioner and the board of the nature of the defense, in reasonable detail. It shall contain a specific admission, denial or explanation of each of the material facts alleged in the petition. Such a denial may be upon information and belief or a denial of knowledge or information sufficient to form a belief as to the truth of the allegation. The answer must also contain a statement of any facts upon which the Commissioner of Labor relies for an affirmative defense.
(i) The Commissioner of Labor shall serve by mail one copy of the answer upon each petitioner or attorney of record and shall file the original with the board, with proof of such service.
(ii) If a representative of petitioner's employees is named in the petition, the commissioner shall also serve, by mail, one copy upon such representative and shall file with the board proof of such service.
§66.6 Reply to answer; time for reply; contents of reply; service of reply.
(a) If a petitioner desires to dispute any allegations in an answer other than denials, or reply to any affirmative defense, he shall file a written reply with the board, with proof of service of a copy thereof upon the Commissioner of Labor.
(b) Such reply shall be served and filed within 10 days after the date of service of the answer.
(c) The reply shall contain clear and concise factual allegations and shall contain a specific admission, denial or explanation of each of the material facts alleged in the answer. Such a denial may be upon information and belief or may be a denial of knowledge or information sufficient to form a belief as to the truth of the allegation.
§66.7 Amendment of pleadings.
The petition may be amended at any time prior to the service of the answer. After an answer has been served, or the time within which to serve an answer has elapsed, a pleading may be amended only by leave of the board. Any application for leave to amend made prior to the hearing shall be made upon at least 10 days' prior written notice, and must be accompanied by the proposed amended pleading.
§66.8 Amendment of pleadings to conform to proof.
Amendment of pleadings to conform to the proof may be obtained by a party, upon leave of the board, at any time before conclusion of the hearing.
§66.9 Stay of rule, regulation or order sought to be reviewed; exceptions.
(a) The filing of a petition may, in the discretion of the board, operate to stay all proceedings against the petitioner under such rule, regulation or order until the determination of such petition. Such discretion may be exercised, if at all, upon written application therefor, which application shall be supported by affidavits, documentary evidence, or other evidence demonstrating the necessity for such stay, the financial responsibility of the applicant when relevant, and that the grant of such stay will not unduly prejudice any employee, the public or the Department of Labor. The Commissioner of Labor shall have such opportunity as the board shall deem reasonable and sufficient to object to or oppose the application for a stay.
(b) Application for a stay of enforcement of an order issued under section 200 shall be granted or denied by the board within 72 hours after the filing of the application.
(c) A stay of enforcement of a minimum wage compliance order requires the posting of security or the obtaining of a waiver of security as provided for in section 658. See subdivisions 3 through 7 of section 657. The application shall be made in the manner provided in section 71.10 of this Subchapter.
(d) Upon filing of an application for a stay of enforcement of an order issued under section 27-a, a hearing officer, designated by the board, shall promptly schedule an onsite inspection to be attended by representatives of the applicant, of the affected employees and of the Commissioner of Labor. After inspecting the condition or conditions on which the alleged violation is based, and after hearing the representatives of the applicant, of the employees and of the Commissioner of Labor, the hearing officer shall report promptly to the board. The hearing officer's report shall also include the application, any writings or documents submitted in connection with the application, and such other material as the hearing officer may deem appropriate. The board may deny such application or may grant the same to such an extent and upon such terms and conditions as the board shall determine.
(e) The granting of a stay does not affect the general enforcement of a rule, regulation or order against anyone who has not filed a petition.