N.Y. General Municipal Law § 23: Flexible benefits program

§ 23. Flexible benefits program. 1. For purposes of this section, the

following terms shall have the following meanings:

a. "Code" shall mean the United States internal revenue code of

nineteen hundred eighty-six, as amended, and regulations promulgated

thereunder.

b. "Commissioner of labor relations" shall mean the officer of a city

having a population of one million or more responsible for the

administration of health benefits on behalf of such city and any of the

entities set forth in subparagraph two of paragraph c of this

subdivision.

c. "Employer" shall mean (1) a city having a population of one million

or more, or (2) any one of the following entities: (i) the city

university of New York, (ii) the New York city health and hospitals

corporation, (iii) the New York city transit authority, (iv) the New

York city housing authority, (v) the New York city off-track betting

corporation, (vi) the New York city rehabilitation mortgage insurance

corporation, (vii) the New York city board of education, or (viii) the

New York city school construction authority.

d. "Employee" shall mean any officer or employee of a city having a

population of one million or more, or any officer or employee of any of

the entities set forth in subparagraph two of paragraph c of this

subdivision who are eligible to receive benefits from the New York city

employee benefits program.

For purposes of this section, an independent contractor shall not be

considered an employee.

e. "Flexible benefits program" shall mean the program established

pursuant to this section, qualifying as a cafeteria plan as defined in

section one hundred twenty-five of the code or any successor section

thereto providing similar benefits, and provided as a part of the

employee benefits program administered by the commissioner of labor

relations.

f. "Program administrator" shall mean that agent, as determined by the

commissioner of labor relations, responsible for the maintenance and

management of the flexible benefits program as authorized in subdivision

two of this section.

2. Any city having a population of one million or more, acting by the

commissioner of labor relations, subject to the approval of the director

of the budget of such city, is authorized to establish and implement a

flexible benefits program for its employees and the employees of any

employer as defined in subparagraph two of paragraph c of subdivision

one of this section, consistent with applicable provisions of the code.

The commissioner of labor relations is authorized to enter into

agreements with persons or entities, on behalf of such city or employer,

to act as program administrators of the flexible benefits program. The

commissioner of labor relations shall promulgate rules for the

appropriate administration of such flexible benefits program.

3. At the request of an employee, the chief fiscal officer of the

employer, or the officer responsible for the administration of such

employer's payroll, shall, by payroll deduction, adjust the payment of

the compensation of such employee as provided in a written statement by

the employee in connection with the establishment and maintenance of the

flexible benefits program as authorized by subdivision two of this

section, and shall transfer the amount so adjusted to the authorized

program administrator.

4. Moneys held for employees in any accounts established pursuant to

the flexible benefits program, as authorized in subdivision two of this

section, shall be held by the program administrator as agent for the

participating employee, shall be accounted for separately and shall

remain the property of the employer to the extent required by the code.

Notwithstanding any law to the contrary, moneys may be paid out of such

accounts without any appropriation by law. Any unexpended balances in

such accounts at the end of a plan year as that term is defined by the

United States internal revenue service shall be returned to the control

of the employer to the extent required by the code.

5. To the extent permitted by the code, any salary deduction or

deferral to an employee under the flexible benefits program established

pursuant to this section shall be considered part of such employee's

annual compensation for the purpose of computing pension contributions

and retirement benefits by any retirement system or plan to which the

employer contributes on behalf of said employee. However, this

subdivision shall in no way be construed to supersede the provisions of

sections four hundred thirty-one, five hundred twelve and six hundred

eight of the retirement and social security law or any other similar

provision of law which limits the salary base for computing retirement

benefits payable by a public retirement system.