§ 803 — Retroactive membership

New York § 803

• Jurisdiction: New York
• Law RSS: Retirement & Social Security
• Art. 18: Provisions Generally Applicable to Public Retirement Systems

Text

§ 803. Retroactive membership. a. A public retirement system shall\nhave the authority to grant relief from a failure to file an application\nfor membership in that system in connection with service rendered prior\nto April first, nineteen hundred ninety-three in accordance with the\nprovisions of this section. If the determination is made by a public\nretirement system other than the public retirement system of which he or\nshe is a member, such other system shall notify the member's current\nsystem of its determination and the retroactive membership resulting\nfrom such determination shall be deemed to have been immediately\ntransferred to the member's current system. In such event, the member's\ncurrent system shall advise such other system of the additional cost\nresulting from such relief, which shall thereupon be billed and\ncollected by such other system and remitted to the member's current\nsystem.\n b. Retroactive membership shall be granted to a member of a public\nretirement system who was entitled to join a public retirement system\nprior to the date on which the member actually joined such a system\nprovided that:\n (1) the member files a written request for retroactive membership in a\npublic retirement system with the member's current retirement system\nwithin three years of the effective date of this article, or within two\nyears of the enactment of a local law by the city of New York for a\nmember who: (i) is an employee of the city of New York; or (ii) is not\nan employee of the city of New York, but has prior employment with such\ncity, which without the transfer and crediting provisions of this\narticle would render him or her ineligible for retroactive membership\nunder the provisions of this section;\n (2) membership shall only be granted retroactively back to the date\nfrom which the member has served continuously in a position or positions\nwhich would have entitled the member to join a public retirement system.\nFor the purpose of this paragraph (and subdivision b of section eight\nhundred one of this article), a member shall be considered to have\nserved continuously from the earliest date after which he or she shall\nhave rendered at least twenty days of eligible service during each plan\nyear of such public retirement system, excluding one break in service of\nnot more than one plan year or not more than two plan years when such\nbreak in service is attributable to the birth of a child of the member\nor care for such child or the placement of a child with the member for\nadoption or foster care, provided that for the limited purposes of this\nsection only, no employment with the city of New York, the board of\neducation of the city of New York or with any employer which\nparticipates in the New York city employees' retirement system or the\nNew York city board of education retirement system shall be deemed to be\nservice which would have entitled the member to join a public retirement\nsystem, or shall be deemed to be retirement system eligible service,\nwhere the person rendering such service would have been deemed by such\nretirement system prior to May thirty-first, nineteen hundred\neighty-eight to be ineligible for membership in such retirement system\nbecause he or she was not regularly scheduled to work a sufficient\nnumber of hours per year, or because such employment was being rendered\nnot on a per annum basis, but rather on a per hour basis, a per diem\nbasis or some other basis; and\n (3) the employer who employed such member at the time he or she was\nfirst eligible to join a public retirement system files with the\nretirement system an affidavit stating that the relief sought is\nappropriate because the member did not (i) expressly decline membership\nin a form filed with the employer; (ii) participate in a procedure\nexplaining the option to join the system in which a form, booklet or\nother written material is read from, explained or distributed, such\nform, booklet or written material can be produced and documentation or a\nnotation to the effect that he or she so participated exists; or (iii)\nparticipate in a procedure that a reasonable person would recognize as\nan explanation or request requiring a formal decision by him or her to\njoin a public retirement system. Such affidavit shall also set forth the\nfacts and circumstances giving rise to the request for relief, including\nbut not necessarily limited to dates of employment and the date on which\nthe member was first eligible to join a public retirement system and\nsalary information. The employer shall respond to all requests for such\naffidavits by a public retirement system. A member seeking to prove that\nhe or she did not participate in a procedure described in clause (ii) or\n(iii) hereof must do so by substantial evidence. An employer shall\nestablish a review process which shall afford a member an opportunity to\nappear in person or in writing. If a determination has been made to deny\nretroactive membership, the employer shall produce an affidavit\nincluding a statement of the grounds on which such denial was based.\nNothing herein is intended to require a public retirement system to\nconduct a hearing if one is not customarily held by the system to\ndetermine pension rights, privileges or benefits.\n c. If a member is entitled to relief pursuant to this section, the\npublic retirement system shall determine the member's date of\nmembership, which shall be the date on which such member would have\nbecome a member of such retirement system pursuant to subdivision b of\nthis section.\n d. Nothing in this section shall be construed to change or modify the\nrequirements for filing an application for membership prescribed by the\nhead of the retirement system or by applicable law or to modify the\nobligations of employers or any public retirement system with respect to\ninforming employees of their right to join a public retirement system or\nwith respect to transmitting their application to such a system.\n e. (1) The entire cost of retroactive membership granted pursuant to\nthis section shall be paid by the employer who employed such member at\nthe time he or she was first eligible to join a public retirement\nsystem, subject to the limitations provided in paragraph two of this\nsubdivision. For the purposes of this section, the additional cost shall\nbe the increase in the accrued liabilities resulting from relief under\nthis section. At the employer's election, the additional cost to be paid\nby it may be paid with interest equal to the valuation rate of the\nmember's current system in equal annual installments over a period of\neither five or ten years.\n (2) In the case of an individual who on March thirty-first, nineteen\nhundred ninety-three was a member of any public retirement system and\nwho, on such date, was employed by an employer other than the employer\nwhich employed such member at the time he or she was first eligible to\njoin a public retirement system, costs to such original employer shall\nnot exceed a percentage of the total cost but not greater than one\nhundred percent of such cost; (a) such percentage to be determined in\nthe case of the New York state and local employees' retirement system\nand the New York state and local police and fire retirement system by\ndividing the greater of the amounts calculated under subparagraph (i) or\n(ii) of this paragraph by the salary used for calculating costs under\nparagraph one of this subdivision: (i) the annual compensation such\nmember would have earned during the salary period used for calculating\ncosts under this subdivision had such member remained in the original\nposition, as determined by applying annual increases of seven percent\nfrom the time of such original twelve month period to the amount of\nannual compensation such member was actually paid by such employer\nduring the first twelve months of employment or (ii) the amount\ndetermined by applying annual increases of seven percent to the amount\nan individual employed on a full-time basis at the then applicable state\nminimum wage would have earned during such twelve month period; (b) such\npercentage in the case of the New York state teachers' retirement system\nto be determined by dividing by the member's annualized salary in the\nyear in which the cost under paragraph one of this subdivision is\ndetermined, by the following: the member's annualized salary in the plan\nyear in which the member was first eligible to join a public retirement\nsystem increased by seven percent per year for each year from the plan\nyear in which the member was first eligible to join a public retirement\nsystem to the plan year in which such cost is determined.\n f. Notwithstanding any other provision of this section to the\ncontrary, this section shall not apply to any person who received a\nretroactive membership date pursuant to the provisions of chapter one\nthousand forty-four of the laws of nineteen hundred eighty-one, chapter\nfive hundred thirty-nine of the laws of nineteen hundred eighty-four,\nchapter five hundred twenty-two of the laws of nineteen hundred\neighty-eight or chapter five hundred twenty-three of the laws of\nnineteen hundred eighty-eight.\n g. A member receiving a retroactive membership date pursuant to\nsubdivision b of this section shall pay to his or her current retirement\nsystem those payments, with applicable interest thereon, which would\nhave been made by such member had he or she been a member of such\nretirement system during the period of service beginning from the date\nwhich is being credited pursuant to such subdivision b. For members of a\nretirement system or pension fund maintained by the city of New York,\nthe granting of any service credit pursuant to this section (1) shall be\nused only for the purpose of determining the amount of any benefit and\nnot for the purpose of determining eligibility for a benefit and (2)\nshall not be deemed or construed to create any right for the payment of\na pension-providing-for-increased-take-home-pay for such period or to\ncreate any liability or responsibility for the funding of such benefit\nby the city of New York or any other pension obligor or to create any\nliability or responsibility for the accumulation of a\nreserve-for-increased-take-home-pay.\n h. Anything in this section to the contrary notwithstanding, any\nmember of a public retirement system who, prior to reinstatement to an\noriginal date of membership prior to the twenty-seventh day of July,\nnineteen hundred seventy-six under section six hundred forty-five of\nthis chapter, is required to pay mandatory arrears under this section\nand still has an amount due, shall, upon application to the comptroller\nunder the provisions of section six hundred forty-five of this chapter\nfor reinstatement under such section six hundred forty-five, and upon\nconveying in writing to the comptroller a rescission of their election\nunder this section, thereafter not be required to pay mandatory arrears\nunder this section provided that payments previously made for such\narrears shall not be refunded to such member. When a member elects to\nrescind benefits pursuant to this section and makes application under\nsection six hundred forty-five of this chapter as permitted under this\nsubdivision, such member's reinstated rights, benefits and status in the\npublic retirement system will derive and be defined by such section six\nhundred forty-five rather than this section.\n