Subpart A of the rule sets forth the proceedings the rule applies to and defines words used within the rule and includes new rules defining document, pleading, petition, party, notice and proof of service. Subpart A also adds a new requirement that papers must be in the English language and provides that translations are required where an affidavit or exhibit is not in English. Subpart A also clarifies that interpreters are provided upon a timely request at no cost to the parties.

Subpart B of the rule describes the parties to proceedings under the rule and the method used by the Board for service and notice, clarifies notice to be provided for representation and permits for the dismissal of abandoned proceedings.

Subpart C of the rule governs papers, pleadings, and motions, and provides for the method of filing papers and their form, including electronic filing. Subpart C provides the procedure for filing a petition to commence a proceeding, for the commissioner of labor to respond to a petition and the amendment of pleadings. Subpart C also includes procedures for motion practice, stays and the redaction of certain personally identifying information.

Subpart D of the rule describes prehearing procedures and contains the procedure for prehearing discovery, including new rules providing for prehearing briefs in certain situations and allowing for appropriate relief for failure of a party to comply with discovery orders.

Subpart E of the rule governs the conduct of hearings, including new procedures for video-teleconference hearings and a provision that a party must pay reasonable costs for the failure to appear at a hearing as a condition of reopening a hearing.

Subpart F of the rule relates to decisions and post decision actions.

Subpart G contains miscellaneous provisions including conduct of persons appearing before the Board, a provision governing oral arguments and a procedure for an expedited proceeding.

The proposed consensus rule also amends sections 68.2, 70.1 and 72.1 of Title 12 of the NYCRR to conform references to the renumbered Part 65 (formerly Part 66); amends sections 70.5 and 71.6 of Title 12 of the NYCRR to conform language to a previous section expressly permitting electronic filing and notice; and amends section 73.2 of Title 12 of the NYCRR to correct the address of the principal office of the Industrial Board of Appeals for purposes of the Freedom of Information Law.

The Industrial Board of Appeals is not submitting a Job Impact Statement for this rulemaking as the Industrial Board of Appeals does not anticipate an adverse impact on jobs or employment opportunities. The proposed regulations update rules of procedure and practice for administrative hearings and conform them to existing practice, conform references to a renumbered part, conform language to a new section expressly permitting electronic filing, and corrects the address of the principal office of the Industrial Board of Appeals for purposes of the Freedom of Information Law. The rule does not eliminate any existing process, procedure, or program and will not have an adverse impact on jobs.

Comments were received from one source, the New York State Department of Labor.

COMMENT: Proof of service should be amended to allow an email copied on the served party to constitute proof of service.

RESPONSE: The comment is noted and language will be added to the proposed rule for clarification on permitting proof of electronic service. This change is not substantive.

COMMENT: Failure to redact confidential personal information from documents should not result in the inability to participate, but rather prevent the document in question from being offered into evidence.

RESPONSE: The rule as written contemplates the intermediate measure of denying admission of unredacted documents. The rules contain a provision for the exclusion from a hearing of a participant behaving in a disobedient or contemptuous manner, such as refusing to redact personal information that is not necessary for the hearing. No changes have been made based on this comment.

COMMENT: The commentor requested clarification as to meaning of “electronically timestamped” and submits that such marking should only include “timestamps” that show service upon Board.

RESPONSE: The rule contemplates the time stamp being the time indicated it was electronically delivered to the Board. Language will be added to the proposed rule for clarification. This change is not substantive.

COMMENT: The commentor asked for clarification regarding who is considered a “representative of petitioner’s employee” in the proposed rule.

RESPONSE: This is the same language as used in the previous version of the rule and the meaning has not changed. No changes have been made based on this comment.

COMMENT: The proposed rule should be clarified that petitions cannot be amended to include things waived under Labor Law Section 101(2).

RESPONSE: No clarification is required. No changes have been made based on this comment.

COMMENT: The proposed rule should be clarified that pleadings other than petitions cannot be amended to include things waived under Labor Law Section 101(2).

RESPONSE: No clarification is required. No changes have been made based on this comment.

COMMENT: A greater amount of time than three days would be preferable for a litigant to request an extension of time to file a pleading or document.

RESPONSE: The time frame in the proposed rule permits opposing parties the opportunity to take a position on the request prior to the expiration of time. No change has been made based on this comment.

COMMENT: The rule should be clarified to exclude issues waived under Labor Law Section 101(2) from the curing of mistakes, omissions, defects and irregularities.

RESPONSE: No clarification is required. No changes have been made based on this comment.

COMMENT: Prehearing briefs may result in duplicative work. Petitioners should not be able to use prehearing briefs as a tool to litigate. Prehearing briefs should only apply to narrow legal issues.

RESPONSE: The comment is noted. No changes have been made based on this comment.

COMMENT: Time frame for response to a demand for bill of particulars should be 20 days, or 10 business days, not the 10 days in the regulation.

RESPONSE: The comment is noted. No changes have been made based on this comment.

COMMENT: Modify 10-day notice to state “where practicable” to allow for minor changes in the hearing notice regarding time and place.

RESPONSE: The new rule is nearly identical to the old rule, with the exception of the additional language “unless otherwise agreed by the parties.” The purpose of the change is to accommodate the ordinary requests for minor changes based on the schedules of parties and witnesses. No change has been made based on this comment.

COMMENT: The Board should take inferences from the failure of a witness to answer a question at a hearing.

RESPONSE: The Board may already draw reasonable conclusions from the failure of a witness to answer a question. However, language will be added to the proposed rule for clarification. This change is not substantive.

COMMENT: The rule should be expanded to include the failure to attend other appearances, not just a hearing, as a waiver of rights.

RESPONSE: The comment is noted. No changes have been made based on this comment.

COMMENT: A reasonable time limit should be set for when applications for reconsideration can be made, especially since the opposing party has only 10 days to respond.

RESPONSE: The comment is noted. This is the same time frame as exists in the current rules. No changes have been made based on this comment.

COMMENT: The rule prohibiting the Commissioner of Labor from participating in the decision by the Board may conflict with Labor Law Section 100(8) by limiting the participation of the Commissioner of Labor as a party.

RESPONSE: The proposed rule is identical to the current rule in all but number. There is no basis to believe the rule would be interpreted in such a way. No changes have been made based on this comment.