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 71.
PART 71
APPEALS
UNDER SECTION 677 OF THE LABOR LAW FROM MINIMUM WAGE COMPLIANCE ORDERS RELATING TO FARM WORKERS
Section
§ 71.1 Application.
(a)
The provisions of this
Part shall apply to the filing, processing, hearing, consideration and determination
of an appeal from minimum wage compliance orders pursuant to article 19-A.
(b)
See Part 65 of this
Subchapter for general rules of procedure and practice not specified in this
Part.
(c)
Article 19-A provides that minimum wage standards shall apply
to farm workers. Minimum wage orders and regulations established by the Commissioner
of Labor pursuant to articles 19 and 19-A of the Labor Law are administered
and enforced by the Commissioner of Labor through the Division of Labor Standards
of the Department of Labor. In order to effectuate those functions, the division
is required to make an initial determination respecting the interpretation and
application of the provisions of an applicable wage order and regulations.
If the division concludes that an employer has failed to conform with a minimum
wage order or a regulation, or with a provision of article 19-A, it serves an
order directing the employer to comply therewith and, when pertinent, to make
payment to the Commissioner of Labor, who will disburse according to law, any
underpayment of wages alleged to be due to employees named in a schedule annexed
to the compliance order. If a party deems that such an order is incorrect,
redress is available by filing a petition under section 677 as prescribed in
this Part.
(d)
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. The petitioner and the Commissioner
of Labor 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
of which it may properly take official notice.
(e)
The commencement of
such a proceeding does not stay an order to comply involving an alleged underpayment
of wages, unless the employer provides security or obtains a waiver of security
as prescribed in section 657 or 676.
§ 71.2 Questions Raised;
Scope of Inquiry.
The fundamental questions
that may be raised in a proceeding under this Part are whether, in issuing the
order to comply, the provisions of the minimum wage act or of the minimum wage
order or the regulations under which the order to comply was made were correctly
construed and applied to a given state of facts, or whether the computation
of the amount of an underpayment is erroneous. Such proceedings shall not be
used to challenge the terms of requirements of a minimum wage order or of a
regulation.
§ 71.3 How Appeal Commenced;
Time.
An appeal from an order to comply with a minimum
wage order or regulation shall be made by filing an original and three conformed
copies of a petition with the board at its Albany office. The petition must
be filed within 60 days after the issuance by the commissioner of the order
to comply. The petition need not be verified.
§ 71.4 Form and Content
of Petition.
The petition
shall:
(a)
contain a caption in
the following form:
(b)
state the address of
the petitioner;
(c)
attach a complete copy
of the compliance order in issue;
(d)
state clearly and concisely
the grounds on which the order in issue is alleged to be incorrect, improper,
unreasonable or invalid;
(e)
state any other material
or relevant facts;
(f)
set forth with particularity
the relief requested; and
(g)
be signed by the petitioner
or his authorized representative.
§ 71.5 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.
§ 71.6 Answer to Petition;
Time for Answer; Service and Filing of Answer.
(a)
The Commissioner of
Labor shall, within thirty (30) days after receipt of the petition, file with the Board
an answer or move with respect to the petition.
(b)
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.
§ 71.7 Contents of
Answer.
The answer shall:
(a)
contain a specific admission,
denial or explanation of each of the material facts alleged in the petition;
(b)
specify the facts upon
which the Commissioner of Labor relied to support the findings of fact and conclusions
of law recited in the order;
(c)
if an underpayment is
alleged, set forth how it was computed; and
(d)
contain any other facts
which the Commissioner of Labor considers relevant to support the order.
§ 71.8 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 ten (10) days' prior written notice and must be accompanied
by the proposed amended pleading.
§ 71.9 Amendment of
Pleadings to Conform to Proof.
A motion to conform a pleading to the proof
may be made at any time before the conclusion of the hearing.
§ 71.10 Security for
Stay; Waiver of Security.
In an appeal from a compliance order, an application
for a determination by the Board as to the sufficiency of security to cause
the appeal to operate as a stay of the order, or an application for waiver of
security to cause the appeal so to operate, shall be made as provided in Part
70 of this Subchapter, Sections 70.10 and 70.11.
