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Hearings

Hearings
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Introduction

This page contains general information about cases before the Industrial Board of Appeals (the Board). It does not address every possible situation.

 

What is the Board?

The Board reviews petitions (appeals) of certain orders, decisions, rules and letter determinations issued by the Department of Labor. For most of the matters before it, the Board designates a neutral hearing officer to preside at a hearing at which the parties present evidence. After the hearing has concluded, the Board decides whether the petition should be granted or dismissed and will issue a written decision. The Board and its hearing officers who conduct hearings are independent of the Department of Labor in making these decisions. It is the mission of the Industrial Board of Appeals to provide all parties a full and fair opportunity to be heard and to render decisions that are based on the record and are legally correct.

The parties at a hearing are:

  • The petitioner(s): A petitioner is a person, business or organization that has received an Order or Letter Determination from the Department of Labor, wants the Board to review the Order or Determination Letter, and has filed a petition.
  • The respondent: The respondent is the Commissioner of Labor, who is represented by a lawyer from the Department of Labor’s Counsel’s Office.

 

What does the Board review?

Generally speaking, the Board holds hearings for:

  • Private Employers: Who have been served with an Order to Comply with the Labor Law.
  • Public Employers: Who have been served with a Notice of Violation and Order to Comply under the Public Employee Safety and Health (PESH) Act.
  • Public Employees: Petitions from public employees, or their union representatives, who have been served with a Letter Determination with respect to a complaint filed for safety and health violations or for retaliatory discrimination under the PESH Act.

 

Do I need a lawyer to appeal a case before the Board?

No. There is no requirement that you have a lawyer. You do have the option to be represented and may choose to obtain your own lawyer. The respondent, the Commissioner of Labor, will be represented by a lawyer from the Department of Labor Counsel’s Office.

 

How do I communicate with the Board?

Generally, all communication with the Board must be in writing.

Filing a Petition

What is a petition?

A petition is a written request made by a person, business or organization asking the Board to hear their challenge to a rule, regulation, Order or Letter Determination issued by the Department of Labor Commissioner and to issue a decision on the matter. The petition:

  1. identifies the person, business or organization seeking review;
  2. contains a copy of the Order or Letter Determination that the petitioner wants the Board to review;
  3. explains why the Order or Letter Determination is unreasonable or invalid (wrong); and
  4. asks that the Board revoke or modify the Order or Letter Determination.

 

The Board has a created a sample petition form.

 

What do I need to file my petition?

A petition consists of two things:

  1. A completed and signed petition; and
  2. A complete copy of the Order(s) or Letter Determination you are appealing.

 

How many copies do I need to file?

You must file four (4) complete sets of your documents.

  1. One (1) original and three (3) copies of your petition, and
  2. Four (4) four copies of the Order or Letter Determination that you are appealing.

 

How long do I have to file my petition?

As with all legal matters, when in doubt, consult with a lawyer. In most instances, you have 60 days from the date on the Order or Letter Determination to file your petition. To be certain of the time for filing, refer to the Labor Law, or the Order or Letter Determination you received from the Department of Labor. You can also consult the Board's Rules.

Note: The deadline to file a petition is strictly enforced and a petition can be dismissed for missing that deadline by even one day.

 

Do I need to submit any other documents with my petition?

It depends. If you are representing yourself, you do not need to submit any other forms to file your petition with the Board.

If you are a representative (lawyer, agent, lobbyist, or other representative) and you are receiving a fee for your services, you must file a Notice of Appearance form.

Petitioners who are represented by someone who is not receiving a fee must file a Designation of Representative form.

 

Is there a fee for filing a petition with the Board?

No, there is no fee for filing a petition with the Board.

 

Where do I file my petition?

You can file your petition in person or by mail with:

NYS Industrial Board of Appeals

Harriman State Office Campus

Building 12 – Room 183

Albany, NY 12240

Note: It is strongly recommended that you mail your petition to the Board by overnight delivery or by certified mail, return receipt requested, so that you have proof that you filed your petition with the Board.

 

What happens after I file my petition?

After you file a complete petition, the Board will serve a copy of it on the Department of Labor. The Department of Labor then will have an opportunity file a response to your petition. Board rules requires the Department of Labor to provide a petitioner with a copy of their response. In most cases, the response will either be:

  • An Answer: The Department of Labor may file an answer. The answer should address the issues you raised in your petition and explain why the Department of Labor believes the order or determination is correct. After the answer is filed, the Board will assign the case to a hearing officer and send all parties a Notice of Hearing and Pre-Hearing Telephone Conference. The Notice will show the date, time and location for the hearing and the pre-hearing telephone conference. 

 

  • A Motion to Dismiss: The Department of Labor may file a motion seeking to dismiss your petition. The Board will set deadlines for the response and the reply in a Motion-Schedule, which the Board sends to you and the Department of Labor. You will have an opportunity to respond to the motion and the Department of Labor will have an opportunity to reply to your response. Once the time for the response and the reply has passed, the Board will issue a decision on the motion. If the motion is granted, your appeal may be dismissed in a formal written decision issued by the Board and served on you and the Department of Labor. If the Board denies the motion, the Board will direct the Department of Labor to file an answer. The Department of Labor must serve a copy of the answer on each petitioner.

Pre-Hearing Telephone Conference (PHC)

What is a pre-hearing telephone conference (PHC) ?

Before a hearing is conducted, a pre-hearing telephone conference may be held. Typically, these conferences are held by telephone. The petitioner or petitioner’s representative, a lawyer for the Department of Labor, and the Board’s designated hearing officer will participate in the telephone conference. Most calls take less than 30 minutes to complete. During the conference, the parties discuss:

  • The date, location and time of the scheduled hearing,
  • The number of witnesses each party intends to have testify,
  • Whether a party or a witness needs an interpreter or any other special assistance or accommodation,
  • The relevant issues in the case,
  • Any questions the parties may have, and
  • The potential for settlement.

 

The hearing officer may issue other directives, as the case requires.

 

Board Subpoenas

A request for subpoenas must be made well in advance of the hearing date to allow the Board to review and approve the subpoena(s) and time for the requesting party to serve the subpoenas. If you are not a lawyer, you must use Board-authorized subpoenas. Any questions about the use of subpoenas should be brought up during the pre-hearing telephone conference. Board Rule § 65.20 governs the issuance of subpoenas. Requests can be submitted using the Board's subpoena formattachment "a" (used to describe documents being requested, if any) and affidavit of service (for proof of service of a Board executed subpoena). For more information, please see the instructions for filing a subpoena.

 

What if I am not available during the scheduled pre-hearing telephone conference?

It is extremely important that you participate in the pre-hearing telephone conference. If you are unable to participate on the scheduled day you may request that the pre-hearing telephone conference be adjourned (postponed). This request must be made in writing, with a copy sent to the opposing party. When asking for an adjournment, the best practice is for a party to consult with the opposing party to obtain consent for the adjournment and to pick a date that both parties can agree to reschedule the case before submitting the request to the Board.

To request an adjournment, locate the name of the assigned hearing officer. This information is contained on the bottom of the Notice of Hearing and Pre-Hearing Telephone Conference. Address your letter to the hearing officer’s attention and send it to:

NYS Industrial Board of Appeals

Harriman State Office Campus

Building 12 – Room 183

Albany, NY 12240

Hearings

What is a hearing?

If you are unable to resolve your case with the Department of Labor, the Board will hold a hearing. The hearing is a formal administrative hearing like a court trial. Evidence is taken including in-person testimony of witnesses and documents that are relevant to the case. Witnesses must testify under oath and are subject to cross-examination by the opposing party or the hearing officer. The entire proceeding will be transcribed by a court reporter.  

 

What do I have to prove at the hearing?

At Board hearings, the petitioner must prove by a preponderance of the evidence that the orders are invalid or unreasonable. This is called the Burden of Proof. This means, to win, the petitioner must prove that it is more likely than not that the Order or Letter Determination is incorrect in some way after all the evidence has been heard.

 

Where are hearings held?

Board hearings are held at various offices throughout the state. Cases in the New York City area and in the Albany area are heard in the Board's offices, where official hearing rooms are located. Hearings are also held in conference rooms in the Department of Labor offices in regions other than New York City or Albany. The Notice of Hearing and Pre-Hearing Telephone Conference will specify the exact hearing location and time at which you are to appear. You may request a particular location for a hearing that is more convenient to you or to your witnesses, and the Board will make the final determination about where the hearing will be held.

 

When will the hearing take place?

The Board will send you a Notice of Hearing and Pre-Hearing Telephone Conference. The notice will have the date, location and time of your pre-hearing telephone conference and the hearing. Concerns regarding the date or location of the hearing should be raised during the pre-hearing telephone conference so that the hearing officer has time to resolve any scheduling conflicts. The notice is the only correspondence from the Board about the date and time of the hearing that you will receive. If you fail to appear at your hearing, your petition may be dismissed.

 

What if I can’t come to the hearing?

It is extremely important that you attend the hearing. The failure to appear at a scheduled hearing will result in the dismissal of your case. If you are unable to attend the hearing you may request that the hearing be adjourned to a different date. Except in cases of emergency or unusual circumstances, requests to adjourn a hearing must be made at least seven (7) days prior to the scheduled hearing date.

Your request must be made in writing and include the reasons you are unable to attend the hearing as scheduled. A copy of your letter must be sent to the opposing party. Before requesting an adjournment from the Board, the best practice is for the requesting party to consult with the opposing party to obtain their consent for the adjournment and to pick a date that both parties can agree to reschedule the case before submitting the request to the Board.

To request an adjournment, locate the name of the assigned hearing officer. This information is contained on the bottom of the Notice of Hearing and Pre-Hearing Telephone Conference. Address your letter to your hearing officer’s attention and send it to:

NYS Industrial Board of Appeals

Harriman State Office Campus

Building 12 – Room 183

Albany, NY 12240

 

In most instances, the Board will either grant or deny your request in writing. Depending on when a request is made, that may not be possible. If you have not received an answer from the Board, you should attend the hearing as scheduled.

 

What happens if I do not attend the hearing?

For a petitioner, the failure to appear at a scheduled hearing will result in the Board issuing a decision dismissing the petition for a failure to appear. This means that the case is closed, and the Department of Labor Order or Letter Determination remains in effect.

If you still wish to have a hearing after missing the hearing that was scheduled, you must apply to reopen the case (reinstatement). A written request for reinstatement must be received by the Board, absent extraordinary circumstances, within five (5) days after the scheduled hearing. Your request for reinstatement should include the reason or reasons why you did not attend the hearing. Attach any documentation that supports why you did not attend the hearing. Applications for reinstatement will only be granted by the Board if a party shows that they had a good reason for not attending the scheduled hearing.

 

What happens at the hearing?

The hearing is a formal administrative hearing like a court trial. The hearing is not an informal discussion or a settlement conference. Evidence is taken including in-person testimony of witnesses and documents that are relevant to the case. Witnesses must testify under oath and are subject to cross-examination by the opposing party or the hearing officer. The entire proceeding will be transcribed by a court reporter.  

 

During the hearing, the parties are given an opportunity to:

  • Make an opening statement: An opening statement is a brief statement of the party’s arguments.
  • Present evidence: Parties may call live witnesses and ask the Board to make certain documents part of the record. Affidavits (written statements by a person who will not be attending the hearing) are rarely accepted in place of the testimony of a witness who can appear in person.
  • Make objections: Parties are permitted to object (challenge) to the introduction of documents and questions asked of witnesses.
  • Make a closing statement: When both parties have concluded presentation of their evidence, they may make a closing statement or submit a written closing statement, with the permission of the hearing officer.

 

During the hearing, the Hearing Office will:

  • Make an opening statement: The Hearing Office will identify all persons present, describe how the hearing will proceed.
  • Allow parties to call witnesses: The Hearing Officer may help parties who have a hard time asking questions of witnesses.
  • Allow parties to offer documents into evidence: The Hearing Officer may help parties who are unfamiliar with the process of entering documentary evidence.
  • Make Rulings: The Hearing Officer will decide whether certain documents will be a part of the record and whether certain questions can be asked.

Remember, the petitioner has the burden to prove by a preponderance of the evidence that the Department's determinations are invalid or unreasonable (Burden of Proof). This means the petitioner must prove that it is more likely than not that the Order or Letter Determination is wrong is some way after all the evidence has been heard.

 

What do I bring to the hearing?

Bring all your evidence, including all witnesses and four (4) copies of each document that you want the Board to consider in reaching its decision. After the hearing is over, you will not be permitted to add other evidence. The Board’s decision will be based only on the evidence admitted into evidence by the hearing officer at the hearing.

 

Do I really have to bring four (4) copies of each document to the hearing?

Yes. This is very important. Four copies are required so that there is an official copy and one copy each for the hearing officer, opposing party and the witness. Copying services will not be available the day of the hearing.

Documents (called exhibits at hearing) should be pre-marked prior to the hearing.

  • Petitioner’s documents should be marked in number sequence. (Ex. P-1, P-2, P-3 …).
  • Respondent’s documents should be marked in letter sequence. (Ex. R-A, R-B, R-C …).

 

How long does a hearing take?

Each case is different but, hearings are generally held and concluded in one day. You should be prepared to be present during the hearing for the entire day that it is scheduled for. Please be advised, that if the hearing cannot be concluded in one day it may be continued to a future day or day(s).

After the Hearing

What happens after the hearing?

The proceeding is transcribed. If a Hearing Officer permits, the parties draft and file post-hearing briefs. A draft decision is presented to the Board. If approved by the Board, a copy of the signed decision is sent to all parties.

 

May I submit additional evidence after the hearing?

No. The Board may only consider the evidence entered into the record at hearing. This is why it is very important that you bring all your evidence, including all witnesses and four (4) copies of each document that you want the Board to consider in reaching its decision.

 

What do I do if I am unhappy with the Board’s decision?

If you receive a Resolution of Decision from the Board and do not agree with it, you should review the Board's Rules and the Labor Law regarding your options, which include the right to appeal to the New York State Supreme Court pursuant to Article 78 of the Civil Practice Laws and Rules within sixty (60) days after the decision is issued. Time limits for filing an appeal are very important. You may wish to consult with a lawyer as you decide what course of action to take. A party may also apply for reconsideration of the decision by the Board under Board Rule § 65.41.

Contact Contact NYS Industrial Board of Appeals

Office Hours: 8:30 A.M. to 4:30 P.M. Monday through Friday, excepting legal holidays

 

 

Contact us by phone:
Main Line  518-474-4785
Mailing Address:

Harriman State Office Campus
Building 12, Room 183
Albany, New York 12240

Contact us by fax:
518-473-7533