In re Madison County Construction Co. , 17 N.Y.S.2d 90 ( 1940 )

Application by petitioner to review determination and order of the Industrial Commissioner directing petitioner to pay claimant the sum of $298.03, as the difference between what he received as wages and what he should have received for his work on a State highway project. Between May 7,1938, and October 29,1938, claimant was employed as a flagman. During this period he worked twelve hours a day, and for seven days a week. The contractor reported his wages for the greater portion of this time on the basis of sixty-two and one-half cents an hour for forty hours a week, and actually paid'elaimant the sum of twenty-five dollars per week. The request for wage schedule did not list the position of flagman. If it had, claimant would have been entitled to a minimum wage of forty-five cents an hour. There is substantial evidence to support the finding of the Commissioner that claimant worked 2,152J hours as a flagman, and received therefor the sum of $672.60. At forty-five cents an hour he should have received the sum of $968.63. He is entitled to the difference of $296.03, and the Commissioner so found. The Commissioner had jurisdiction under section 220-b of the Labor Law. The employee did not forfeit his right to compensation for time in excess of that prohibited by law. Award confirmed and petition dismissed, with costs to the Industrial Commissioner. Hill, P. J., Crapser, Heffernan, Sehenek and Foster, JJ., concur.