2012 New York Consolidated Laws
LAB - Labor
Article 19-A - (670 - 683) MINIMUM WAGE STANDARDS AND PROTECTIVE LABOR PRACTICES FOR FARM WORKERS
676 - Appeals from regulations.

 
    §  676.  Appeals from regulations.  1. Finality. Any regulation issued
  by the commissioner pursuant to this article shall, unless appealed from
  as provided in this section, be final. The findings of the  commissioner
  as to the facts shall be conclusive.
    2.  Review  by board of standards and appeals. Any person in interest,
  including a labor organization or employer association, who is aggrieved
  by such regulation may obtain review before the board of  standards  and
  appeals by filing with said board, within forty-five days after the date
  of  the publication of the notice of such regulation, a written petition
  requesting that the regulation be modified or set aside. A copy of  such
  petition shall be served promptly upon the commissioner. On such appeal,
  the  commissioner shall certify and file with the board of standards and
  appeals a transcript of the entire record, including the  testimony  and
  evidence upon which such regulation was made. The board of standards and
  appeals, upon the record certified and filed by the commissioner, shall,
  after  oral  argument, determine whether the regulation appealed from is
  contrary to law. Within forty-five days after the expiration of the time
  for the filing of a petition, the board of standards and  appeals  shall
  issue  an  order  confirming,  amending  or setting aside the regulation
  appealed from. The appellate jurisdiction of the board of standards  and
  appeals  shall  be  exclusive  and  its order final except that the same
  shall be subject to an appeal taken directly to the  appellate  division
  of the supreme court, third judicial department, within sixty days after
  its  order  is issued. The commissioner shall be considered an aggrieved
  party entitled to take an appeal from an order of the board of standards
  and appeals.
    3. Security. The taking of an appeal by an employer to  the  board  of
  standards  and  appeals  shall  not  operate as a stay of a minimum wage
  regulation issued under this article unless and until, and only so  long
  as, the employer shall have provided security determined by the board of
  standards  and  appeals  in  accordance  with this section. The security
  shall be sufficient to guarantee to the employees affected  the  payment
  of  the  difference  between  the wage they receive and the minimum wage
  they would be entitled to receive under the terms of  the  minimum  wage
  regulation   (such   difference   being   hereinafter   referred  to  as
  "underpayments") in the event that such regulation is  affirmed  by  the
  board of standards and appeals. The security shall be either:
    a.  A  bond  filed with the board of standards and appeals issued by a
  fidelity or surety company authorized to do business in this state.  The
  bond shall be sufficient to cover the amount of underpayments due at the
  time the bond is filed with the board of standards and appeals  and  the
  amount of underpayments that can reasonably be expected to accrue within
  the following sixty days; or
    b.  An  escrow  account  established  by  the  employer  in  behalf of
  employees and, deposited in a bank or trust company in  this  state,  of
  which  the  employer  has notified the board of standards and appeals in
  writing that he has established  such  account.  The  account  shall  be
  sufficient  to  cover  the  amount  of  underpayments due at the time of
  notification to the board of standards and appeals  and  shall  be  kept
  current  by  the employer depositing therein the amount of underpayments
  accruing each and every pay period. Such deposits shall be made no later
  than the day on which the wages for each pay period are payable.  As  an
  alternative thereto, an employer may deposit the amount of underpayments
  due at the time the deposit is made and the amount of underpayments that
  can reasonably be expected to accrue within the following sixty days, as
  determined  by  the  board  of standards and appeals. The employer shall
  keep accurate records showing the total  amount  of  each  deposit,  the
  period covered, and the name and address of each employee and the amount

  deposited  to  his account. The employees escrow account shall be deemed
  to be a trust fund for the benefit of the  employees  affected,  and  no
  bank  or  trust  company shall release funds in such account without the
  written approval of the board of standards and appeals.
    4.  Maintenance  of  security. The commissioner, at the request and on
  behalf of the board of standards and appeals, shall have  the  right  to
  inspect  the  books  and  records  of  every employer who appeals or who
  provides a  security  in  accordance  with  subdivision  eight  of  this
  section. In the event that the board of standards and appeals finds that
  the security provided by an employer is insufficient to cover the amount
  of underpayments, it shall notify the employer to increase the amount of
  the  security.  If  the  employer  fails to increase the security of the
  amount requested within seven days after such notice, the stay shall  be
  terminated.  If the board of standards and appeals finds that the amount
  of the security is excessive, it shall decrease the amount  of  security
  required.
    5.  Review  of  determination  as  to  security.  Notwithstanding  any
  provision in this chapter, any determination of the board  of  standards
  and  appeals  with  reference  to  subdivisions  three  and four of this
  section shall be reviewable only by a special proceeding  under  article
  seventy-eight  of  the  civil  practice  law and rules instituted in the
  supreme court in the third judicial district within ten days after  such
  determination.
    6. Security on court review. In the event that an appeal is taken from
  the  order of the board of standards and appeals to the supreme court in
  the third judicial district pursuant to subdivision two of this section,
  the court may continue the security in effect or require  such  security
  as it deems proper.
    7.  Waiver of security. Notwithstanding any provision in this section,
  the board of standards and appeals may, in  its  discretion,  waive  the
  requirement of a security for an employer who the board of standards and
  appeals  finds  is  of  such  financial  responsibility that payments to
  employees of any underpayments due or to accrue are assured without  the
  security provided by this section.
    8.  Stay  for other employers. Any employer affected by a minimum wage
  regulation from which an appeal has been taken by  another  employer  to
  the  board of standards and appeals or to the supreme court in the third
  judicial district, may obtain a  stay  of  proceedings  against  him  by
  providing  a  security in accordance with subdivisions three and four of
  this section within thirty days after the filing of the  appeal  by  the
  other employer.