§ 657 — Appeals from wage orders and regulations

§ 657. Appeals from wage orders and regulations. 1. Finality. Any\nminimum wage order and regulation issued by the commissioner pursuant to\nthis article shall, unless appealed from as provided in this section, be\nfinal. The findings of the commissioner as to the facts shall be\nconclusive on any appeal from an order of the commissioner issued\npursuant to sections six hundred fifty-two, six hundred fifty-six, or\nsix hundred fifty-nine.\n 2. Review by board of standards and appeals. Any person in interest,\nincluding a labor organization or employer association, in any\noccupation for which a minimum wage order or regulation has been issued\nunder the provisions of this article who is aggrieved by such order or\nregulation may obtain review before the board of standards and appeals\nby filing with said board, within forty-five days after the date of the\npublication of the notice of such order or regulation, a written\npetition requesting that the order or regulation be modified or set\naside. A copy of such petition shall be served promptly upon the\ncommissioner. On such appeal, the commissioner shall certify and file\nwith the board of standards and appeals a transcript of the entire\nrecord, including the testimony and evidence upon which such order or\nregulation was made and the report of the wage board. The board of\nstandards and appeals, upon the record certified and filed by the\ncommissioner, shall, after oral argument, determine whether the order or\nregulation appealed from is contrary to law. Within forty-five days\nafter the expiration of the time for the filing of a petition, the board\nof standards and appeals shall issue an order confirming, amending or\nsetting aside the order or regulation appealed from. The appellate\njurisdiction of the board of standards and appeals shall be exclusive\nand its order final except that the same shall be subject to an appeal\ntaken directly to the appellate division of the supreme court, third\njudicial department, within sixty days after its order is issued. The\ncommissioner shall be considered an aggrieved party entitled to take an\nappeal from an order of the board of standards and appeals.\n 3. Security. The taking of an appeal by an employer to the board of\nstandards and appeals shall not operate as a stay of a minimum wage\norder or regulation issued under this article unless and until, and only\nso long as, the employer shall have provided security determined by the\nboard of standards and appeals in accordance with this section. The\nsecurity shall be sufficient to guarantee to the employees affected the\npayment of the difference between the wage they receive and the minimum\nwage they would be entitled to receive under the terms of the minimum\nwage order or regulation (such difference being hereinafter referred to\nas "underpayments") in the event that such order or regulation is\naffirmed by the board of standards and appeals. The security shall be\neither:\n a. A bond filed with the board of standards and appeals issued by a\nfidelity or surety company authorized to do business in this state. The\nbond shall be sufficient to cover the amount of underpayments due at the\ntime the bond is filed with the board of standards and appeals and the\namount of underpayments that can reasonably be expected to accrue within\nthe following sixty days; or\n b. An escrow account established by the employer in behalf of\nemployees and deposited in a bank or trust company in this state, of\nwhich the employer has notified the board of standards and appeals in\nwriting that he has established such account. The account shall be\nsufficient to cover the amount of underpayments due at the time of\nnotification to the board of standards and appeals and shall be kept\ncurrent by the employer depositing therein the amount of underpayments\naccruing each and every pay period. Such deposits shall be made no later\nthan the day on which the wages for each pay period are payable. As an\nalternative thereto, an employer may deposit the amount of underpayments\ndue at the time the deposit is made and the amount of underpayments that\ncan reasonably be expected to accrue within the following sixty days, as\ndetermined by the board of standards and appeals. The employer shall\nkeep accurate records showing the total amount of each deposit, the\nperiod covered, and the name and address of each employee and the amount\ndeposited to his account. The employees' escrow account shall be deemed\nto be a trust fund for the benefit of the employees affected, and no\nbank or trust company shall release funds in such account without the\nwritten approval of the board of standards and appeals.\n 4. Maintenance of security. The commissioner, at the request and on\nbehalf of the board of standards and appeals, shall have the right to\ninspect the books and records of every employer who appeals from an\norder or who provides a security in accordance with subdivision eight of\nthis section. In the event that the board of standards and appeals finds\nthat the security provided by an employer is insufficient to cover the\namount of underpayments, it shall notify the employer to increase the\namount of the security. If the employer fails to increase the security\nto the amount requested within seven days after such notice, the stay\nshall be terminated. If the board of standards and appeals finds that\nthe amount of the security is excessive, it shall decrease the amount of\nsecurity required.\n 5. Review of determination as to security. Notwithstanding any\nprovision in this chapter, any determination of the board of standards\nand appeals with reference to subdivisions three and four of this\nsection shall be reviewable only by a special proceeding under article\nseventy-eight of the civil practice law and rules instituted in the\nsupreme court in the third judicial district within ten days after such\ndetermination.\n 6. Security on court review. In the event that an appeal is taken from\nthe order of the board of standards and appeals to the supreme court in\nthe third judicial district pursuant to subdivision two of this section,\nthe court may continue the security in effect or require such security\nas it deems proper.\n 7. Waiver of security. Notwithstanding any provision in this section,\nthe board of standards and appeals may, in its discretion, waive the\nrequirement of a security for an employer who the board of standards and\nappeals finds is of such financial responsibility that payments to\nemployees of any underpayments due or to accrue are assured without the\nsecurity provided by this section.\n 8. Stay for other employers. Any employer affected by a minimum wage\norder or regulation from which an appeal has been taken by another\nemployer to the board of standards and appeals or to the supreme court\nin the third judicial district, may obtain a stay of proceedings against\nhim by providing a security in accordance with subdivisions three and\nfour of this section within thirty days after the filing of the appeal\nby the other employer.\n