N.Y. Labor Law § 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.