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This entry was published on 2014-09-22
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SECTION 676
Appeals from regulations
Labor (LAB) CHAPTER 31, ARTICLE 19-A
§ 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.