§ 676 — Appeals from regulations

§ 676. Appeals from regulations. 1. Finality. Any regulation issued\nby the commissioner pursuant to this article shall, unless appealed from\nas provided in this section, be final. The findings of the commissioner\nas to the facts shall be conclusive.\n 2. Review by board of standards and appeals. Any person in interest,\nincluding a labor organization or employer association, who is aggrieved\nby such regulation may obtain review before the board of standards and\nappeals by filing with said board, within forty-five days after the date\nof the publication of the notice of such regulation, a written petition\nrequesting that the regulation be modified or set aside. A copy of such\npetition shall be served promptly upon the commissioner. On such appeal,\nthe commissioner shall certify and file with the board of standards and\nappeals a transcript of the entire record, including the testimony and\nevidence upon which such regulation was made. The board of standards and\nappeals, upon the record certified and filed by the commissioner, shall,\nafter oral argument, determine whether the regulation appealed from is\ncontrary to law. Within forty-five days after the expiration of the time\nfor the filing of a petition, the board of standards and appeals shall\nissue an order confirming, amending or setting aside the regulation\nappealed from. The appellate jurisdiction of the board of standards and\nappeals shall be exclusive and its order final except that the same\nshall be subject to an appeal taken directly to the appellate division\nof the supreme court, third judicial department, within sixty days after\nits order is issued. The commissioner shall be considered an aggrieved\nparty entitled to take an appeal from an order of the board of standards\nand 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\nregulation issued under this article unless and until, and only so long\nas, the employer shall have provided security determined by the board of\nstandards and appeals in accordance with this section. The security\nshall be sufficient to guarantee to the employees affected the payment\nof the difference between the wage they receive and the minimum wage\nthey would be entitled to receive under the terms of the minimum wage\nregulation (such difference being hereinafter referred to as\n"underpayments") in the event that such regulation is affirmed by the\nboard of standards and appeals. The security shall be either:\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 or who\nprovides a security in accordance with subdivision eight of this\nsection. In the event that the board of standards and appeals finds that\nthe security provided by an employer is insufficient to cover the amount\nof underpayments, it shall notify the employer to increase the amount of\nthe security. If the employer fails to increase the security of the\namount requested within seven days after such notice, the stay shall be\nterminated. If the board of standards and appeals finds that the amount\nof the security is excessive, it shall decrease the amount of security\nrequired.\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\nregulation from which an appeal has been taken by another employer to\nthe board of standards and appeals or to the supreme court in the third\njudicial district, may obtain a stay of proceedings against him by\nproviding a security in accordance with subdivisions three and four of\nthis section within thirty days after the filing of the appeal by the\nother employer.\n