The Administrative Adjudication Unit (AAU) is an office within the New York State Department of Labor consisting of Administrative Law Judges (ALJs) and support staff. The ALJs hold fair and impartial hearings on behalf of the Commissioner of Labor. The hearings involve multiple areas of the Labor Law. The ALJs also preside over settlement conferences involving alleged violations of certain worker protection laws. These include laws concerning minimum wage, child labor, and retaliation.
The majority of hearings held by the AAU involve either the prevailing wage law, also known as the public work law, set forth in Labor Law Article 8, and the asbestos law, found in Labor Law Article 30. Several other types of hearings involving matters such as variances and contract disputes are held on a much less regular basis. Hearings are conducted pursuant to the Department’s hearing rules, found in 12 NYCRR Part 701, and Article 3 of the State Administrative Procedures Act (SAPA). Hearings are initiated by the issuance of a formal document called a Notice of Hearing. A Notice is sent to non-Department parties by regular and certified mail. The Notice sets forth the time and place of the hearing, identifies the ALJ holding the hearing, and identifies the violations of the law being alleged by the Department and the potential penalties that could be assessed if the Department proves the violations. Since March 2020, all hearings held by the AAU have been virtual, using WebEx for the hearing platform.
What to expect at a hearing
An administrative hearing is much like a trial. It is a formal proceeding where the parties are permitted to be represented by counsel. Although the rules of evidence and procedure required by state or federal courts are not strictly applied, they are generally followed. The hearing is recorded by a reporter, and a transcript is available to parties who make the proper arrangements with the reporting service. Witnesses are sworn in and subject to direct and cross-examination by the parties. Documents are received in evidence based upon their relevance to the proceeding. The Department is represented by an attorney from its Counsels Office, who proceeds first and sets forth the Department’s case, including the basis for the alleged violations of the law and the requested penalties. During this portion of the hearing, the party charged with violating the law has the right to cross-examine the Department’s witnesses concerning their testimony or the documents they reference. Once the Department rests its case, the party charged with violations has the right to present its own witnesses and documents to support its position that, for example, the alleged violations didn’t occur, or the proposed penalties are too severe. Hearings can take a few hours, a few days, or even longer. The length of hearings depends upon the number of witnesses, the length of witness examination and cross-examination, and many other factors. Once the hearing concludes, the ALJ will offer the parties the opportunity to submit post-hearing Proposed Findings of Fact and Conclusions or Law. The complete record of the hearing then consists of the pleadings (Notice of Hearing, Answer, and adjournments, motions, or similar documents), the transcript, all documentary evidence, and any Proposed Findings. Once the record is complete, the ALJ will prepare a Report and Recommendation and submit it to the Commissioner of Labor who then issues the final Determination and Order in the proceeding.
Conferences are informal meetings presided over by an ALJ. They are voluntary proceedings during which an ALJ assists the parties – an employer, a claimant, and sometimes a Department representative – in reaching an agreement that avoids the need for further investigation or enforcement by the Department. Because conferences are informal, they are not recorded, and there is no transcript made. Although the ALJ runs the conference, it is up to the parties, including the Department, if present, to agree to the final terms of the resolution. The ALJ can suggest certain courses of action but cannot order any of the parties to act.
Since March 2020, all conferences have been held virtually. Most conferences arise out of investigations conducted by the Department’s Division of Labor Standards. There are three kinds of conferences: Compliance, Mediation, and Retaliation.
Compliance Conferences are requested by an employer when a Labor Standards investigation has resulted in a finding by an investigator that a violation of the Labor Law has occurred. This violation could be a failure to pay minimum wage, overtime, supplements, or other wage-related issues, or a non-wage matter such as a child labor violation. When provided with the investigator’s findings, the employer is given the option of requesting a Compliance Conference. The employer, claimant, and investigator all attend the Compliance Conference.
Mediation Conferences occur much earlier in an investigation. The investigator notifies the employer of an initial complaint and potential violation and offers the employer the opportunity to request a Mediation Conference. Only the employer and claimant attend the Mediation Conference.
Retaliation Conferences occur when the alleged retaliation against an employee by an employer is serious enough for the Anti-Retaliation Unit (ARU) to investigate. (Less serious charges of retaliation may be handled by an investigator in the course of the more common wage violation cases.) These conferences involve an alleged violation of Labor Law Section 215 and carry potentially severe penalties for employers found to have violated the law.
What to expect at a conference
Prior to the conference, the Department sends the parties a link for a WebEx virtual hearing. These hearings can be attended by video from a computer, tablet, or smart phone, or a party can call in by telephone. The ALJ opens the conference by explaining the conference, what to expect, and how it will be conducted. For a conference to succeed, the parties must be willing to listen to the ALJ’s instructions, answer any questions that are asked clearly and concisely, and to negotiate to reach a settlement. During the conference the ALJ may place one of the parties on hold to speak privately with the other. This back-and-forth is essential to the spirit of negotiation and can result in parties successfully resolving the matter in question. Although parties sometimes want to bring “witnesses” to a conference, that is not productive. Because the conference is an informal meeting, the ALJ is not there to decide who is telling the truth, but to help the parties resolve the matter, regardless of what they believe “really” happened. If the parties reach an agreement, the investigator will send the employer a brief stipulation which summarizes the terms of the agreement, including a payment schedule, if necessary.
Unfortunately, not all conferences result in a conclusion satisfactory to the parties. In that case, the investigator will continue with the investigation, which could result in the issuance of an Order to Comply against the party alleged to have violated the Labor Law. If a party is served with an Order to Comply, it may appeal that Order to the Industrial Board of Appeals, an independent board housed within the Department solely for administrative purposes.
After conducting a hearing, the Hearing Officer provides the Commissioner of Labor with a Report and Recommendation. The Commissioner then renders a final Determination and Order, which is issued pursuant to a Notice of Filing. The Commissioner's Determinations and supporting documents are being made available through this web site. They are organized by subject matter, e.g., public work, asbestos, etc., and may also be searched by key words. Determinations and Orders of the Commissioner available on this site were effective upon the date shown in the Notice of Filing. Adversely affected parties have a right to appeal; this site does not provide information concerning whether an appeal was taken or, if one was, the outcome of such appeal.