2013 New York Consolidated Laws
LAB - Labor
Article 19 - (650 - 665) MINIMUM WAGE ACT
657 - Appeals from wage orders and regulations.

 
    §  657.  Appeals  from  wage orders and regulations.  1. Finality. Any
  minimum wage order and 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  on  any  appeal  from  an  order  of the commissioner issued
  pursuant to sections six hundred fifty-two, six  hundred  fifty-six,  or
  six hundred fifty-nine.
    2.  Review  by board of standards and appeals. Any person in interest,
  including  a  labor  organization  or  employer  association,   in   any
  occupation  for which a minimum wage order or regulation has been issued
  under the provisions of this article who is aggrieved by such  order  or
  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  order  or  regulation, a written
  petition requesting that the order or  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  order  or
  regulation  was  made  and  the  report  of the wage board. The board of
  standards and appeals, upon  the  record  certified  and  filed  by  the
  commissioner, shall, after oral argument, determine whether the order or
  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  order  or  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
  order or 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 order or regulation (such difference being hereinafter referred  to
  as  "underpayments")  in  the  event  that  such  order or 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  from  an
  order 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
  to 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
  order  or  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.