§ 23 — Flexible benefits program

§ 23. Flexible benefits program. 1. For purposes of this section, the\nfollowing terms shall have the following meanings:\n a. "Code" shall mean the United States internal revenue code of\nnineteen hundred eighty-six, as amended, and regulations promulgated\nthereunder.\n b. "Commissioner of labor relations" shall mean the officer of a city\nhaving a population of one million or more responsible for the\nadministration of health benefits on behalf of such city and any of the\nentities set forth in subparagraph two of paragraph c of this\nsubdivision.\n c. "Employer" shall mean (1) a city having a population of one million\nor more, or (2) any one of the following entities: (i) the city\nuniversity of New York, (ii) the New York city health and hospitals\ncorporation, (iii) the New York city transit authority, (iv) the New\nYork city housing authority, (v) the New York city off-track betting\ncorporation, (vi) the New York city rehabilitation mortgage insurance\ncorporation, (vii) the New York city board of education, or (viii) the\nNew York city school construction authority.\n d. "Employee" shall mean any officer or employee of a city having a\npopulation of one million or more, or any officer or employee of any of\nthe entities set forth in subparagraph two of paragraph c of this\nsubdivision who are eligible to receive benefits from the New York city\nemployee benefits program.\n For purposes of this section, an independent contractor shall not be\nconsidered an employee.\n e. "Flexible benefits program" shall mean the program established\npursuant to this section, qualifying as a cafeteria plan as defined in\nsection one hundred twenty-five of the code or any successor section\nthereto providing similar benefits, and provided as a part of the\nemployee benefits program administered by the commissioner of labor\nrelations.\n f. "Program administrator" shall mean that agent, as determined by the\ncommissioner of labor relations, responsible for the maintenance and\nmanagement of the flexible benefits program as authorized in subdivision\ntwo of this section.\n 2. Any city having a population of one million or more, acting by the\ncommissioner of labor relations, subject to the approval of the director\nof the budget of such city, is authorized to establish and implement a\nflexible benefits program for its employees and the employees of any\nemployer as defined in subparagraph two of paragraph c of subdivision\none of this section, consistent with applicable provisions of the code.\nThe commissioner of labor relations is authorized to enter into\nagreements with persons or entities, on behalf of such city or employer,\nto act as program administrators of the flexible benefits program. The\ncommissioner of labor relations shall promulgate rules for the\nappropriate administration of such flexible benefits program.\n 3. At the request of an employee, the chief fiscal officer of the\nemployer, or the officer responsible for the administration of such\nemployer's payroll, shall, by payroll deduction, adjust the payment of\nthe compensation of such employee as provided in a written statement by\nthe employee in connection with the establishment and maintenance of the\nflexible benefits program as authorized by subdivision two of this\nsection, and shall transfer the amount so adjusted to the authorized\nprogram administrator.\n 4. Moneys held for employees in any accounts established pursuant to\nthe flexible benefits program, as authorized in subdivision two of this\nsection, shall be held by the program administrator as agent for the\nparticipating employee, shall be accounted for separately and shall\nremain the property of the employer to the extent required by the code.\nNotwithstanding any law to the contrary, moneys may be paid out of such\naccounts without any appropriation by law. Any unexpended balances in\nsuch accounts at the end of a plan year as that term is defined by the\nUnited States internal revenue service shall be returned to the control\nof the employer to the extent required by the code.\n 5. To the extent permitted by the code, any salary deduction or\ndeferral to an employee under the flexible benefits program established\npursuant to this section shall be considered part of such employee's\nannual compensation for the purpose of computing pension contributions\nand retirement benefits by any retirement system or plan to which the\nemployer contributes on behalf of said employee. However, this\nsubdivision shall in no way be construed to supersede the provisions of\nsections four hundred thirty-one, five hundred twelve and six hundred\neight of the retirement and social security law or any other similar\nprovision of law which limits the salary base for computing retirement\nbenefits payable by a public retirement system.\n