Title 12 of the New York State Official Compilation of Codes Rules and Regulations, Chapter 1, Subchapter B, Part 71.



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.