Summary
recognizing the Labor Commissioner's authority to approximate any § 220 underpayment where an employer's records are inadequate or inaccurate
Summary of this case from Ramos v. SimplexGrinnell LPOpinion
June 16, 1998
It is well settled that where, as in this case, the employer's records are found to be inadequate or inaccurate, the Department of Labor may use "other evidence" to calculate the amount of wage underpayment, even though the results may be approximate, and that such other evidence may include the testimony of employees regarding hours worked and tasks performed ( Matter of Waterway Constr. Corp. v. Sweeney, 248 A.D.2d 256; Matter of Marangos Constr. Corp. v. New York State Dept. of Labor, 216 A.D.2d 758, 759; Matter of Agency Constr. Corp. v. Hudacs, 205 A.D.2d 980, 981-982). Thus, here, respondents determination was permissibly based upon the testimony of the claimants, Labor Department investigators and other hearing witnesses respecting the work of petitioner's employees, and that evidence is clearly substantial within the meaning of CPLR 7803 (4) ( see, 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 179-181; Matter of Hy-Tech Coatings v. New York State Dept. of Labor, 226 A.D.2d 378). Indeed, as the Industrial Board of Appeals concluded, the record of the hearings made out two classic examples of "off the books" employment. This conclusion is not impaired in the present context by petitioner's challenge to the credibility of the witnesses or the "reasonableness" of their testimony, since an article 78 court may not weigh the evidence or reject the administrative agency's determination of credibility ( Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443-444; Matter of Saitanis Enters. v. Hines, 201 A.D.2d 738, lv denied 85 N.Y.2d 806).
We have considered petitioner's other arguments and find them to be without merit.
Concur — Milonas, J. P., Nardelli, Wallach and Saxe, JJ.