N.Y. Labor Law § 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.