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Parts 65, 66, 67, 68, 69, 70, 71, 72 and 73 of Title 12 of the Official Compilation of Codes, Rules and Regulations of the State of New York State (Typical citation form: 12 NYCRR Part 65)
Effective December 2006
The New York State Industrial Board of Appeals was established by the Legislature in 1975, within the Department of Labor only for administrative purposes. The Board is an autonomous, independent, quasi-judicial review agency. It consists of five members appointed by the Governor with the advise and consent of the Senate. Its duties and powers include:
The board is not a law enforcement agency and exercises no enforcement functions.
(References to “Article” and “Section” are to Articles and Sections of the New York State Labor Law, unless otherwise indicated).
65.2 Gender and number.
65.3 Computation of Time.
65.4 Record Address.
65.5 Filing and Docketing.
Note: (Time periods prescribed by statute cannot be extended.)
65.6 Party Status.
65.8 Representative of Parties.
65.9 Service and Notice by or on Parties.
Proof of service shall be endorsed upon or annexed to all pleadings (other than the initial application or Petition) and other papers to be submitted to or filed with the Board.
65.10 Service of Notice by Board.
65.12 Pleadings and Motions.
65.13 Motions Addressed to Pleading; Time for Filing.
65.14 Failutr to File.
Failure to file any pleading pursuant to these rules when due may, in the discretion of the Board, constitute a waiver of the right to further participation in the proceeding.
65.15 Withdrawal of Petition or Application.
At any stage of a proceeding, a party may withdraw his Petition or application, subject to the approval of the Board.
65.16 Pre-hearing Conference.
At any time before a hearing, the Board or the Hearing Officer, on their own motion or onmotion of a party, may direct the parties or their representatives to exchange information or to participate in a pre-hearing conference for the purpose of considering matters which will tend to simplify the issues, or expedite the proceeding.
65.17 Bills of Particulars; Procedures.
65.18 Discovery Depositions and Interrogatories.
65.19 Failure to Comply with Orders for Discovery.
If any party fails to comply with an order of the Board directing discovery in accordance with the provisions of these rules, the Board may issue appropriate orders.
Notice of the time, place and nature of a hearing shall be given by the Board to the parties at least ten (10) days in advance of such hearing.
65.22 Hearing: Who Shall Conduct; To be Public Unless Otherwise Ordered.
A hearing in any proceeding may be conducted by one or more Board members or an employee of the Board designated as a Hearing Officer by the Board. At anytime a Hearing Officer may be designated by the Board to take the place of a person or persons previously designated to conduct a hearing. Every hearing shall be public unless otherwise ordered by the Board.
65.24 Failure to Appear.
65.25 Payment of Witness Fees and Mileage; Fees of Persons Taking Deposition.
Witnesses summoned before the Board or the Hearing Officer shall be paid the same fees and mileage that are paid witnesses under the provisions of the Civil Practice Law and Rules of the State of New York, and witnesses whose depositions are taken and the persons taking the same shall severally be entitled to the same fees as are paid for like services in the courts of the State of New York. Witness fees and mileage shall be paid by the party of whose instance the witness appears, and the person taking a deposition shall be paid by the party at whose instance the deposition is taken.
65.26 Transcript of Testimony.
Hearings shall be transcribed verbatim. A copy of the transcript of testimony taken at the hearing, duly certified by the reporter, shall be maintained on file with the Board. Copies of the transcript may be obtained by the parties upon written application filed with the Board pursuant to the provisions of Part 73 of these Rules.
65.27 Duties and Powers of Hearing Officer.
A member or employee of the Board designated to conduct a hearing or investigation shall have the following duties and powers:
65.28 Duties and Powers of Board Members.
In addition to those powers and duties mentioned and described in Section 65.27 of this Part, the Board by one or more of its members shall have the following duties and powers:
65.29 Rules of Evidence.
The Board and the Hearing Officer shall not be bound by technical rules of procedure and evidence.
65.30 Burden of Proof.
The burden of proof of every allegation in a proceeding shall be upon the person asserting it.
65.31 Examination of Witnesses.
Witnesses shall be examined orally under oath or affirmation. Opposing parties shall have the right to cross-examine any witness whose testimony is introduced by an adverse party.
65.32 Exclusion from Hearing; Striking Testimony.
Contumacious or contemptuous conduct before the Board or Hearing Officer shall be ground for exclusion from a hearing. The refusal of a witness at any hearing to answer a question which has been found by the Board to be proper shall, in the discretion of the Board, be ground for striking of all or any part of the testimony previously given by such witness on related matters.
65.34 Deposition in Lieu of Oral Testimony; Application; Procedures; Form; Rulings.
65.36 Filing of Briefs and Proposed Findings with the Board; Oral Argument at Hearing.
Any party shall be entitled, upon request, to a reasonable period before the close of the hearing for oral argument, which shall be included in the stenographic report of the hearing. Any party shall be entitled, upon request made before the close of the hearing, to file a brief, proposed findings of fact, and conclusion of law, or both, with the Board. The Hearing Officer shall fix a reasonable period of time for such filing.
65.37 Submission Without Hearing or Appearance.
With leave of the Board, any proceeding where sufficient facts have been admitted, stipulated or otherwise included in the record may be submitted at any time for decision or other appropriate action upon consent of all parties.
65.38 Record of Proceedings.
65.39 Decision of the Board.
Within a reasonable time after any hearing held pursuant to this Part, the Board shall make, and issue to each affected party, a decision which shall be in the form of a resolution adopted by a 9 majority vote of the Board. Such resolution shall contain findings of fact and law upon which the decision is based.
65.40 Finality for Purposes of Judicial Review.
A Resolution of Decision of the Board shall be final, subject to judicial review as provided in the Labor Law.
65.41 Reconsideration of Petition or Application.
65.43 Expedited Proceedings.
Proceedings may be consolidated on the motion of any party, or on the Board’s own motion, where there exist common parties, common questions of law or fact, or both, or in such other circumstances as justice and the administration of the law require.
Upon its own motion, or upon motion of any party, the Board may, for good cause, order any proceeding severed with respect to some or all issues or parties.
65.46 Standards of Conduct.
All persons appearing in any proceeding shall conform to the standards of conduct required in the courts of the State of New York.
65.47 Joinder of Petitioners.
All persons in whom any right to relief in respect of or arising out of any rule, regulation or order is alleged to exist, whether jointly or severally, may join in one proceeding as Petitioners where, if such persons brought separate Petitions, any common question of law or fact would arise; provided that, if it shall appear to the Board that such joinder may embarrass, delay or prejudice a substantial right or the disposition of the matter, the Board may sever the proceeding and order separate hearings or make such other order as may be expedient.
65.48 Joint Hearing of Proceedings.
The Board may, by resolution, direct that two or more proceedings, arising out of the same or similar set of facts, be heard together, without consolidation, provided that no substantial right is thereby prejudiced.
A proceeding may be dismissed for cause upon motion of a party or the Board.
65.50 Ex Parte Communication.
65.51 Restrictions as to Participation by the Commissioner of Labor.
In any proceeding noticed pursuant to these rules, the Commissioner of Labor shall not participate in or advise with respect to the decision of the Board.
65.52 Inspection and Reproduction of Documents.
65.53 Restrictions with Respect to Former Employees.
66.2 How Review to be Commenced.
66.3 Form and Content of Petition.
The Petition shall be filed by mailing or delivering the original and three conformed copies thereof to the Board’s Albany office. The Petition shall:
66.4 Service of Petition on Commissioner of Labor for Answer.
Upon the filing of a Petition, the Board shall serve a copy thereof upon the Commissioner of Labor by transmittal to the office of the Commissioner’s general counsel. If the Petition contains a statement of the name and address of the employees’ representative, the Board will mail a copy of the Petition to such representative, for informational purposes.
66.5 Answer to Petition; Time for Answer; Contents of Answer; Service and Filing of Answer.
66.6 Reply to Answer; Time for Reply; Contents of Reply; Service of Reply.
66.7 Amendment of Pleadings.
The Petition may be amended at any time prior to the service of the answer. After an answer has been served or the time within which to serve an answer has elapsed, a pleading may be amended only by leave of the Board. Any application for leave to amend made prior to the hearing shall be made upon at least 10 days’ prior written notice, and must be accompanied by the proposed amended pleading.
66.8 Amendment of Pleadings to Conform to Proof.
Amendment of pleadings to conform to the proof may be obtained by a party, upon leave of the Board, at any time before conclusion of the hearing.
66.9 Stay of Rule, Regulation or Order Sought to be Reviewed; Exceptions.
67.2 Applications; How and Where Made.
67.3 Evidence at Hearing in Support of Applications for Approval of Certificates of Incorporation or Authority to do Business in this State.
Such persons as the Board may indicate in its notice of hearing must appear and must be prepared to show by competent and reliable evidence:
67.4 Intervention, Objections; How Raised; Evidence Thereon.
Any person or party affected or likely to be affected by an application for approval of a corporate document may appear and be heard in support or in opposition thereto. The Board may, in its discretion, direct objections to be filed in writing and adjourn the proceeding to allow all parties a reasonable opportunity to submit evidence thereon.
68.2 How Proceeding to be Commenced.
68.3 Service of Petition on Interested Parties.
Upon the filing of a Petition as herein provided, the Board shall serve a copy thereof by mail or delivery to the Commissioner of Labor and to the union or association of employees which has filed or submitted for filing or registration the label or device in issue.
68.4 Answer to Petition; Time for Answer; Contents of Answer; Service and Filing of Answer.
68.5 Reply to Answer; Time for Reply; Contents of Reply; Service of Reply.
68.6 Amendment of Pleadings.
The Petition may be amended at any time prior to the service of the answer. After an answer has been served or the time within to serve an answer has elapsed, a pleading may be amended only by leave of the Board. All applications to amend must be accompanied by the proposed amendment and must be made upon not less than 10 days’ prior written notice.
68.7 Amendment of Pleadings to Conform to Proof.
A motion to amend a pleading to conform to the proof may be made at any time before the conclusion of the hearing.
68.8 Motion to Dismiss Petition; When Made; Grounds.
69.2 How Appeal Commenced; Time.
69.3 Content of Petition.
69.4 Construction of Petition; No Answer Required.
69.5 Service of Petition on Commissioner of Labor.
Upon the filing of a Petition as herein provided, the Board shall serve a copy thereof upon the Commissioner of Labor by mail or delivery to the offices of the Commissioner’s general counsel. Upon receipt thereof, the Commissioner shall submit to the Board at its Albany office all files, papers and records relevant to the subject of the Petition.
69.6 Actions after Service of Petition.
The Petitioner and the Commissioner of Labor may file with the Board such further relevant matter in writing as they think proper, provided that the Board’s proceedings shall not be delayed thereby.
Hearings ordered upon such appeals shall be held at such times and places as the Board may direct and upon such notice to the Petitioners and the Commissioner of Labor as the Board may deem reasonable.
69.8 Duration of Rules.
The duration of rules contained in this Part shall be concurrent with that of the New York State Defense Emergency Act.
70.2 How Appeal Commenced; Time.
An appeal from a wage order or a regulation shall be made by filing an original and three (3) conformed copies of a Petition with the Board at its Albany office. The Petition must be filed within forty-five (45) days after the date of the publication of the notice of the challenged order or regulation. The Petition need not be verified.
70.3 Form and Contents of Petition.
70.4 Service of Petition on Commissioner of Labor for Answer.
Upon the filing of a Petition as provided in this Part, the Board shall serve a copy thereof upon the Commissioner of Labor by transmittal to the office of the Commissioner’s general counsel.
70.5 Answer to Petition; Time for Answer; Contents of Answer; Service and Filing of Answer; Filing; Transcript of Records.
70.6 Inspection of Record.
The certified transcript of the record filed by the Commissioner of Labor in relation to the promulgation of a minimum wage order or regulation under review pursuant to Section 657 or 676, shall be open for inspection and copying during the Board’s regular business hours by the parties concerned in such a proceeding.
70.7 Oral Arguments; Briefs.
Oral argument in the matter shall be had at a time and place fixed by the Board. Reasonable notice thereof shall be given to the parties and to such other persons as the Board may determine. In the discretion of the Board, briefs may be submitted in accordance with such terms as it may prescribe.
Intervention as a party will not be permitted.
70.9 Amendment of Pleadings to Conform to Proof.
A motion to amend a pleading to conform to the proof may be made at any time before the conclusion of the hearing.
70.10 Security for Stay. (Paragraphs 3 and 8 of Sections 657 and 676).
70.11 Waiver of Security (paragraphs 7 of Section 657 and 676).
70.12 Decision of the Board; Time.
Within forty-five (45) days after the expiration of the time for filing of a Petition under Section 657 or Section 676, the Board shall make, file, and issue to each affected party, an order confirming, amending or setting aside the order or regulation appealed from.
71.2 Questions Raised; Scope of Inquiry.
The fundamental questions that may be raised in a proceeding under this Part are whether in issuing the order to comply, the provisions of the minimum wage act or of the minimum wage order or the regulations under which the order to comply was made were correctly construed and applied to a given state of facts or whether the computation of the amount of an underpayment is erroneous. Such proceedings shall not be used to challenge the terms or requirements of a minimum wage order or of a regulation.
71.3 How Appeal Commenced; Time.
An appeal from an order to comply with a minimum wage order or regulation shall be made by filing an original and three (3) conformed copies of a Petition with the Board at its Albany office. The Petition must be filed within sixty (60) days after the issuance by the Commissioner of the order to comply. The Petition need not be verified.
71.4 Form and Content of Petition.
The Petition shall:
71.5 Service of Petition on Commissioner of Labor for Answer.
Upon the filing of a Petition as herein provided, the Board shall serve a copy thereof upon the Commissioner of Labor by transmittal to the office of the Commissioner’s general counsel.
71.6 Answer to Petition; Time for Answer; Service and Filing of Answer.
71.7 Contents of Answer.
The answer shall:
71.8 Amendment of Pleadings.
The Petition may be amended at any time prior to the service of the answer. After an answer has been served or the time within which to serve an answer has elapsed, a pleading may be amended only by leave of the Board. Any application for leave to amend made prior to the hearing shall be made upon at least ten (10) days’ prior written notice and must be accompanied by the proposed amended pleading.
71.9 Amendment of Pleadings to Conform to Proof. A motion to conform a pleading to the proof may be made at any time before the conclusion of the hearing.
71.10 Security for Stay; Waiver of Security. In an appeal from a compliance order an application for a determination by the Board as to the sufficiency of security to cause the appeal to operate as a stay of the order, or an application for waiver of security to cause the appeal so to operate shall be made as provided in Part 70 of these Rules, Sections 70.10 and 70.11.
72.2 Application; How Made. An application for a stay of an “unsafe notice” shall be made by a VERIFIED Petition on notice to the Commissioner of Labor as herein after set forth. The original and three (3) conformed copies of the Petition and of all accompanying papers with proof of service thereof upon the office of the Commissioner’s general counsel and the office of the Director of the Division which issued the said order shall be filed with the Board at its Albany office.
72.3 Form and Content of Petition.
The Petition shall:
72.4 Answer to Petition Not Required.
All allegations of fact in the Petition shall be deemed controverted by the Commissioner of Labor, unless expressly admitted. No answer shall be required.
72.5 Conduct of Proceeding.
The provisions of this Part relate to the procedures to be followed by the Industrial Board of Appeals in compliance with chapters 578-580 of the Laws of 1974, entitled “Freedom of Information Law”.
73.2 Location and hours for public access; designation of records access and fiscal officers.
73.3 Requests for records.
73.4 Responses to requests.
73.6 Industrial Board of Appeals subject matter list.
The Industrial Board of Appeals shall maintain a subject matter list of records required to be disclosed by Article 6 of the Public Officers Law, and such subject matter list shall be located in the office of the Industrial Board of Appeals in Albany.
73.7 Denial of access to records.
73.8 Posted Notice.
The Board shall cause to be conspicuously displayed, a notice clearly indicating:
If any provision of this Part or the application thereof to any person or circumstances is adjudged invalid by a court of competent jurisdiction, such judgment shall not affect or impair the validity of the other provisions of this Part or the application thereof to other persons and circumstances.