last updated: Thursday, August 11, 2005
Section 150 of the Civil Service Law of New York State mandates that retired state or local employees may not be rehired by the State or a political subdivision and receive pension benefits while employed. Sections 211 and 212 of the Retirement and Social Security Law do provide for exceptions to this rule.
Section 212 allows a retired state or local government employee to earn up to a certain amount ($27,500 in 2004) on a calendar year basis and continue to receive full pension benefits. There is no earnings limit for persons age 65 or older. Retirees reemployed under Section 212 do not need advance approval; the Employees Retirement System (ERS) and the Teachers Retirement System (TRS) send all retirees a mailing each year which includes a form on which to report Section 212 earnings for the previous year. [The section 212 limit is subject to review and the legislature may approve increases. Retirees should verify the current amount with the employing agency and, if necessary, seek the section 211 approval below.]
Section 211 provides a waiver to the section 212 earnings limitation. The NYS Civil Service Commission may grant waivers under Section 211 for retired employees to be employed in positions in the classified service. The Presidents of State University of New York campuses may grant waivers under Section 211 for retired employees to be employed in positions in the unclassified service of the State University of New York, the professional service at the statutory colleges of Alfred and Cornell and the unclassified service of the Community Colleges. However, certain criteria must be met in order to grant a waiver under the statute. Those criteria are:
1. the retired person is duly qualified, competent and physically fit for performance of the duties of the position in which the retiree is to be employed;
2. that there is a need for the retiree's service in such position;
3. that there are not readily available for recruitment persons qualified to perform the duties of such position; and
4. the employment of the retiree is in the best interest of the government service.
The clear intent of the law is to restrict the circumstances in which an individual can simultaneously receive both a salary and a pension from the State. This is important to avoid any appearance of impropriety. Thus, it is incumbent upon all campuses to ensure that requests for Section 211 waivers are limited to those cases where no other alternative (such as hiring a new employee or training an existing employee) is available.
Knowledgeable, older workers are a tremendous asset to the State, and campuses are encouraged to consider ways in which these individuals provide their expertise and experience on a voluntary basis. However, the legal requirements must be complied with when hiring individuals who have previously retired from government employment.
In order to comply with the statutory requirements, before resorting to hiring a retiree pursuant to Section 211, the prospective employer must conduct a search to determine whether there are "readily available for recruitment persons qualified to perform the duties" of the position. In addition, the request that is submitted to the Civil Service Commission or the campus president must, at a minimum:
1. describe the duties of the position to be filled;
2. set forth the qualifications required of any individual to fill that position;
3. describe the recruitment efforts which have been undertaken;
4. certify that the recruitment efforts failed to locate any qualified non-retired individuals to fill the position;
5. certify that the retiree is duly qualified, competent and physically fit to perform the duties of the position; and
6. explain why the employment of the retiree is in the best interests of the government service, including why the position cannot be filled through the transfer or training of existing State personnel.
Under Section 211 of the Retirement and Social Security Law, waivers may be granted for periods up to two years. As noted above, however, requests for such waivers should be made only rarely, and should be sought only for the time period that is absolutely necessary. If a request must be made to renew the employment of any individual after the completion of the two-year period, a new application with the necessary information must be submitted, and the prospective employer must again attest that no qualified persons are available for recruitment other than the retiree. A new search should be conducted before that attestation is made.
If a retiree exceeds their earning limit under Section 212 and does not receive approval under Section 211, their pension may be reduced.
Definition of Retiree
For the purpose of Section 211/212, a retiree is a person who is receiving a service retirement from ERS, TRS, or a NYC Public Retirement System. A member of the Optional Retirement Program (ORP) who separated from service at normal retirement age (55, or 50 in an incentive program) or older and has 10 years of service will be considered a retiree if they have received a retirement incentive or have begun to withdraw funds from their pension, either through annuitization or cash withdrawal.
Special rules apply to persons receiving a disability pension from a retirement system. They are not covered by Section 211/212. Other laws limit how much a disability pensioner may earn with the same or different employer. The rules are quite complex. If you are considering hiring a disability pensioner, you should check with the system from which they retired to determine their earnings limit prior to making an offer.
Definition of Earnings
Earnings for purposes of the earnings limit calculation are amounts actually earned in the year in question. Earnings do not include money earned in a prior year and received in the current year. Example: an employee retires on December 31, 2001. In January 2002 they receive a lump sum payment for unused vacation. That payment does not have to be included in 2002 earnings because it was earned in 2001.
In the year of retirement earnings refers only to money earned after the date of retirement. Example: if an employee retires on September 1, 2002, only earnings for the period September - December, 2002 count towards the earnings limit.
Earnings in private employment (ex: the SUNY Research Foundation) do not count towards the earnings limit.
Earnings paid on Form 1099 count towards the earnings limit.
Employees rehired under Sections 211 and 212 may not rejoin their previous retirement system or elect to participate in a new retirement system. They may, however, participate in a tax-deferred savings program.
Additional Guidelines for Human Resources Officers
Re-Employment with the Same/Different Employer - Limited vs. Unlimited Earnings
Under Section 211, retirees re-employed by the same employer from which they retired are subject to an earnings limitation. Retirees re-employed by a different employer are not subject to an earnings limitation.
For this purpose, all New York State agencies, including SUNY campuses, are considered one employer. Other entities are generally considered separate and distinct employers. For example, each school district is a separate employer. So is each local government, public authority, Board of Cooperative Educational Services, and public benefit corporation. Each community college is considered a separate employer, except that in most cases, a community college and its sponsoring county are considered the same employer (exception: Corning and Jamestown Community Colleges are considered independent). City University of New York is considered a separate employer. Here are some examples:
If a retiree was primarily employed by another employer but employed on a part-time basis at a SUNY campus, earnings will be limited if the campus employment occurred within two years of the employee's retirement date, and if the employee's pension is based in part on the campus service.
Note: TRS allows part-time employees to elect whether to use their part-time salary in the calculation of final average salary. If they choose not to use the part-time salary in the calculation of final average salary, and they return to work post-retirement for the same employer for which they worked part-time pre-retirement, their earnings with that employer are unlimited. This election must be made before retirement benefits are received. (ERS does not allow this option.)
Example: A professor is employed full-time at a community college and part-time at a state-operated campus. He/she retires. The state-operated campus has a full-time opening in that discipline, conducts a search and cannot find any qualified non-retirees for the position. They offer the position to the retiree. The retiree's earnings are limited if their salary at the state-operated campus in the two years prior to their retirement was used in the calculation of final average salary, and their earnings are unlimited if it was not.
Questions about whether a given employee's earnings are limited should be referred to the retirement system from which they retired or to the SUNY University-wide Benefits Manager for ORP retirees.
Calculation Of Earnings Limitation
When an earnings limitation applies, it is calculated as follows:
Note: Sometimes ERS and TRS are not able to provide final pension figures at the time you ask. They may still be in the process of calculating the employee's pension. In that case, they will give you estimated figures. It is important to follow up in several months to request the final figures. Estimated figures will almost always be on the low side, so make sure the employee stays well under the earnings limit until you can obtain final figures.
If an employee's
service will continue beyond the period specified on the original UP-211
and a new UP-211 is to be submitted, it may be necessary to contact the
retirement system again to see if there are adjustments to the pension
figures. ERS and TRS provide Cost of Living Adjustments (COLAs) to retirees
age 62 or older and retired for five (5) or more years. If an employee
might be eligible for a COLA, you should contact the retirement system
to update pension figures at the time a new UP-211 is submitted. Pension
figures in the ORP are based on a hypothetical annuity starting date and
do not need to be updated.
Effective Date of Reemployment
There are no regulations requiring a person be off the payroll a certain amount of time before being reemployed. However, the Office of State Comptroller (OSC) will not pay a retiree a lump sum payment for unused vacation unless they are off the payroll for at least one day.
Procedures for Processing Form UP-211 for Unclassified Service Employees
UP-211s may be approved for up to two years at a time. As the earnings limits are by calendar year, it is preferable that UP-211s be submitted by calendar year rather than academic year.
1. Determine if a UP-211 is necessary. If the employee will earn less than the Section 212 limit ($25,000 in 2003, legislation pending to increase to $27,500 in 2004)), a UP-211 is not necessary. If the employee will earn less than the Section 212 limit with one employer, but the combined total salary with multiple employers will exceed the Section 212 limit, then a UP-211 should be completed.
If the employee is over age 65 or will turn 65 during the year in question, their earnings are unlimited under Section 212 and a UP-211 is not necessary.
2. Determine if the employee's salary is limited under Section 211. The employee's salary is limited if they are returning to work for the same employer. See above for definition of "same employer." If the salary is limited, the employee can only earn in post-retirement employment the difference between the salary they would be making had they not retired and their highest possible pension option.
3. Make sure the form is filled out completely. Information about final salary needs to be provided only when the salary is limited.
4. If the salary is not limited, the form is ready for approval by the president.
5. If the salary is limited, send a request to the appropriate retirement system for information. For ERS and TRS, ask them to provide the final average salary and the Option 0 pension amount. The final average salary may be used in place of the final salary if it is higher. For the Optional Retirement Program, ask TIAA-CREF to provide a calculation of the income available from a single life annuity with no guaranteed period, effective on the date of retirement or the first day of the following month if the retirement was mid-month. In performing this calculation, TIAA-CREF is to include all ORP money (including that transferred to an Alternate Funding Vehicle), but not the employee's tax-deferred annuity contributions.
Note: if the employee
is receiving a pension from two retirement systems, requests for information
should be sent to both.
7. If the pension figure is "estimated", follow up to recheck with the retirement system in several months.
8. Once the form has been signed, a copy should be sent to ERS or TRS for members of those systems. For members of the ORP, a copy should be sent to the Office of University-wide Human Resources, SUNY System Administration. A copy should also be sent to the employee.
We have attached form letters that you may use to request information from ERS and TRS as well as a form that you may use to request information from TIAA-CREF. The contacts at the retirement systems at this time are:
Reemployment of Classified Service Employees under Section 211
Approval of the reemployment of classified service employees under Section 211 rests with the NYS Civil Service Commission. State-operated campuses should refer to the State Personnel Management Manual, Advisory Memorandum #99-06 and form CSC-1. Links to appropriate forms may be found under "Appointment" from the table of contents in this manual. Questions on procedures should be referred to the Department of Civil Service, which interprets Section 211 very strictly.
[by Holly Hawkes, SUNY System Administration, revised 2004]