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:

    70 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

        (ii)     the name and address of the bank or trust company in which a proposed escrow account is established, and the amounts and schedule of deposits to be made into the escrow account; and

      (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.

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