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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 70.
PART
70
APPEALS FROM MINIMUM WAGE ORDERS AND REGULATIONS UNDER SECTIONS 657 AND 676 OF LABOR LAW
Section
§ 70.1 Application.
(a)
The provisions of this
Part shall apply to the filing, processing, hearing, consideration and determination
of an appeal from minimum wage orders and regulations pursuant to Sections 657
and 676.
(b)
See Part 65 of these
Rules for general rules of procedure and practice not specified in this
Part.
(c)
The State Minimum Wage Act (Article 19) empowers the Commissioner
of Labor to establish minimum wage orders and regulations for certain occupations
in accordance with the procedure prescribed therein. Article 19-A provides
that minimum wage standards shall apply to farm workers, who prior to that enactment
were excluded from minimum wage regulation. Such orders and regulations are
final unless appealed as provided in sections 657 and 676, respectively. Those
sections accord an aggrieved party in interest the right to petition the Board
to determine whether such orders or regulations are contrary to law. The jurisdiction
of the Board to entertain such a proceeding is primary and exclusive. Its decision
is final, subject to a direct appeal to the Appellate Division of the Supreme
Court, Third Judicial Department, within 60 days after its decision is issued.
The findings of the Commissioner of Labor, as to the facts on any appeal from
the provisions of a minimum wage order or regulation, are conclusive. An appeal
to the Board does not stay a minimum wage order or regulation issued under the
Minimum Wage Acts unless the appellant provides security or obtains a waiver
of security as prescribed in section 657 or 676. The nature of an appeal from
wage orders and regulations differs in material respects from an appeal of a
compliance order under section 677 (see Part 71 of this Subchapter), and from
a review of an order issued under Section 218 or Section 219 (see Part 66).
§ 70.2 How Appeal to
be Commenced; Time.
An appeal from a wage order or a
regulation shall be made by filing an original and three (3) conformed copies of
a petition with the Board at its Albany office. The petition must be filed
within 45 days after the date of the publication of the notice of the challenged
order or regulation. The petition need not be verified.
§ 70.3 Form and Contents of Petition.
The petition shall:
(a) contain a caption in the following form:
(b)
state the address of
the petitioner;
(c)
identify or set forth
the wage order or regulation in issue;
(d)
state whether the petitioner
is an aggrieved person in interest, as defined in section 657 or 676, and show
the nature of the interest and the respects in which the petitioner is aggrieved;
(e)
state clearly the grounds
on which the wage order or regulation being challenged is contrary to law;
(f)
show any other material
facts, by affidavit or other reliable and relevant evidence, to support the
petitioner's contentions and the relief requested;
(g)
specify with particularity
the precise relief requested; and
(h)
be signed by petitioner,
or authorized representative.
§ 70.4 Service of Petition
on Commissioner of Labor for Answer.
Upon the filing of a petition as provided
in this Part, the Board shall serve a copy thereof upon the Commissioner of
Labor by transmittal to the office of the Commissioner's general counsel.
§ 70.5 Answer to Petition; Time for
Answer; Contents of Answer; Service and Filing of Answer; Filing Transcript
of Record.
(a)
The Commissioner of
Labor shall, within eight (8) days after receipt of the petition, file with the
Board an answer to the petition, and a certified transcript of the record as
provided by subdivision 2 of section 657 or 676, as the case may be.
(b)
The answer shall contain
a denial or an explanation of the material facts which are deemed relevant to
the issues raised by the petitioner.
(c)
The Commissioner of
Labor shall serve by mail one copy of the answer upon each petitioner, or the
attorney or authorized representative of record, and shall file the original
with the Board with proof of such service.
§ 70.6 Inspection of Record.
The certified transcript of the record filed
by the Commissioner of Labor, in relation to the promulgation of a minimum wage
order or regulation under review pursuant to section 657 or 676, shall be open
for inspection and copying during the board's regular business hours by the
parties concerned in such a proceeding.
§ 70.7 Oral Argument; Briefs.
Oral argument in the matter shall be had at a time
and place fixed by the Board. Reasonable notice thereof shall be given to the
parties and to such other persons as the Board may determine. In the discretion
of the Board, briefs may be submitted in accordance with such terms as it may
prescribe.
§ 70.8 Intervention.
Intervention
as a party will not be permitted.
§ 70.9 Amendment of Pleadings to Conform
to Proof.
A motion to amend a pleading to conform to
the proof may be made at any time before the conclusion of the hearing.
§ 70.10 Security for
Stay (Subdivisions 3 and 8 of Sections 657 and 676).
(a)
An application for a
determination by the Board, as to the sufficiency of security to cause an appeal
to operate as a stay of the order or regulation, shall be made by filing with
the Board a separate written and verified petition identifying the appeal and
setting forth:
(1)
the name and address
of the applicant;
(2)
the number and employment
classification(s) of affected employees;
(3)
the pay periods of the
affected employees during the stay;
(4)
the wages per pay period
proposed to be paid to affected employees during the stay;
(5)
the wages per pay period
that such employees would be entitled to receive under the terms of the order
or regulation appealed from;
(6)
the underpayments of
each affected employee per pay period;
(7)
the total proposed underpayment;
(8)
the type of security
proposed;
(9)
(i) the name and address of the issuing fidelity or
surety company and the amount of the proposed bond; or
(10)
such other allegations
as may be relevant and proper.
(b)
The petition shall not
be accepted by the Board for filing unless accompanied by proof that a copy
thereof has been delivered or mailed to the Commissioner of Labor.
(c)
The Commissioner of Labor on behalf of the Board shall inspect
the books and records of the applicant in respect to the allegations of the
petition and report forthwith to the Board and promptly serve a copy thereof
upon the applicant. The petition shall be deemed true except as the Commissioner
of Labor in his report may assert error therein, and may be amended or withdrawn
by the applicant without prejudice.
(d)
The determination of
the Board shall be made upon the petition, the report and such other evidence
as the Board may require, with or without a hearing in the Board's discretion,
and shall be effective from a date therein specified until further action by
the Board or decision of the appeal.
§ 70.11 Waiver of Security (Subdivisions
7 of Sections 657 and 676).
(a)
An application for waiver
of security to cause an appeal to operate as a stay shall be made by filing
with the Board a separate, written and verified petition identifying the appeal
and setting forth:
(1)
the name and address
of the applicant;
(2)
the number and employment
classification(s) of the employees affected;
(3)
the pay periods of the
affected employees during the stay;
(4)
the wages per pay period
proposed to be paid to the affected employees during the stay;
(5)
the wages per pay period
that such employees would be entitled to receive under the terms of the order
or regulation appealed from;
(6)
the total proposed underpayment;
and
(7)
such facts as may tend to establish that applicant is of such
financial responsibility that payment of the proposed underpayment is assured
if required. The total of the proposed underpayments may be calculated upon
the assumption that the appeal will be decided by the Board within forty five (45) days after
the expiration of the time for filing a petition.
(b)
The applicant shall
file the original and three (3) conformed copies of the petition with the Board
at its Albany office.
(c)
The Board shall serve
a copy of the petition on the Commissioner of Labor, who shall serve, and file
with the board, with proof of service, an answer to the petition within ten (10) days
after such service by the Board.
(d)
The determination of
the Board shall be made upon the petition, the answer and such other evidence
as the Board may require, with or without a hearing in the board's discretion,
and shall be effective from a date therein specified until further action by
the board or decision of the appeal.
§ 70.12 Decision of Board; Time.
Within forty five (45) days after the
expiration of the time for the filing of a petition under Section 657 or Section
676, the Board shall make, file, and issue to each affected party, an order
confirming, amending or setting aside the order or regulation appealed from.