NY Lab L § 657 (2021)
2021 New York Laws LAB - Labor Article 19 - Minimum Wage Act 657 - Appeals From Wage Orders and Regulations.

§  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; orb. 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.