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This entry was published on 2014-09-22
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SECTION 657
Appeals from wage orders and regulations
Labor (LAB) CHAPTER 31, ARTICLE 19
§ 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.