N.Y. Retirement & Social Security Law § 803: Retroactive membership

§ 803. Retroactive membership. a. A public retirement system shall

have the authority to grant relief from a failure to file an application

for membership in that system in connection with service rendered prior

to April first, nineteen hundred ninety-three in accordance with the

provisions of this section. If the determination is made by a public

retirement system other than the public retirement system of which he or

she is a member, such other system shall notify the member's current

system of its determination and the retroactive membership resulting

from such determination shall be deemed to have been immediately

transferred to the member's current system. In such event, the member's

current system shall advise such other system of the additional cost

resulting from such relief, which shall thereupon be billed and

collected by such other system and remitted to the member's current

system.

b. Retroactive membership shall be granted to a member of a public

retirement system who was entitled to join a public retirement system

prior to the date on which the member actually joined such a system

provided that:

(1) the member files a written request for retroactive membership in a

public retirement system with the member's current retirement system

within three years of the effective date of this article, or within two

years of the enactment of a local law by the city of New York for a

member who: (i) is an employee of the city of New York; or (ii) is not

an employee of the city of New York, but has prior employment with such

city, which without the transfer and crediting provisions of this

article would render him or her ineligible for retroactive membership

under the provisions of this section;

(2) membership shall only be granted retroactively back to the date

from which the member has served continuously in a position or positions

which would have entitled the member to join a public retirement system.

For the purpose of this paragraph (and subdivision b of section eight

hundred one of this article), a member shall be considered to have

served continuously from the earliest date after which he or she shall

have rendered at least twenty days of eligible service during each plan

year of such public retirement system, excluding one break in service of

not more than one plan year or not more than two plan years when such

break in service is attributable to the birth of a child of the member

or care for such child or the placement of a child with the member for

adoption or foster care, provided that for the limited purposes of this

section only, no employment with the city of New York, the board of

education of the city of New York or with any employer which

participates in the New York city employees' retirement system or the

New York city board of education retirement system shall be deemed to be

service which would have entitled the member to join a public retirement

system, or shall be deemed to be retirement system eligible service,

where the person rendering such service would have been deemed by such

retirement system prior to May thirty-first, nineteen hundred

eighty-eight to be ineligible for membership in such retirement system

because he or she was not regularly scheduled to work a sufficient

number of hours per year, or because such employment was being rendered

not on a per annum basis, but rather on a per hour basis, a per diem

basis or some other basis; and

(3) the employer who employed such member at the time he or she was

first eligible to join a public retirement system files with the

retirement system an affidavit stating that the relief sought is

appropriate because the member did not (i) expressly decline membership

in a form filed with the employer; (ii) participate in a procedure

explaining the option to join the system in which a form, booklet or

other written material is read from, explained or distributed, such

form, booklet or written material can be produced and documentation or a

notation to the effect that he or she so participated exists; or (iii)

participate in a procedure that a reasonable person would recognize as

an explanation or request requiring a formal decision by him or her to

join a public retirement system. Such affidavit shall also set forth the

facts and circumstances giving rise to the request for relief, including

but not necessarily limited to dates of employment and the date on which

the member was first eligible to join a public retirement system and

salary information. The employer shall respond to all requests for such

affidavits by a public retirement system. A member seeking to prove that

he or she did not participate in a procedure described in clause (ii) or

(iii) hereof must do so by substantial evidence. An employer shall

establish a review process which shall afford a member an opportunity to

appear in person or in writing. If a determination has been made to deny

retroactive membership, the employer shall produce an affidavit

including a statement of the grounds on which such denial was based.

Nothing herein is intended to require a public retirement system to

conduct a hearing if one is not customarily held by the system to

determine pension rights, privileges or benefits.

c. If a member is entitled to relief pursuant to this section, the

public retirement system shall determine the member's date of

membership, which shall be the date on which such member would have

become a member of such retirement system pursuant to subdivision b of

this section.

d. Nothing in this section shall be construed to change or modify the

requirements for filing an application for membership prescribed by the

head of the retirement system or by applicable law or to modify the

obligations of employers or any public retirement system with respect to

informing employees of their right to join a public retirement system or

with respect to transmitting their application to such a system.

e. (1) The entire cost of retroactive membership granted pursuant to

this section shall be paid by the employer who employed such member at

the time he or she was first eligible to join a public retirement

system, subject to the limitations provided in paragraph two of this

subdivision. For the purposes of this section, the additional cost shall

be the increase in the accrued liabilities resulting from relief under

this section. At the employer's election, the additional cost to be paid

by it may be paid with interest equal to the valuation rate of the

member's current system in equal annual installments over a period of

either five or ten years.

(2) In the case of an individual who on March thirty-first, nineteen

hundred ninety-three was a member of any public retirement system and

who, on such date, was employed by an employer other than the employer

which employed such member at the time he or she was first eligible to

join a public retirement system, costs to such original employer shall

not exceed a percentage of the total cost but not greater than one

hundred percent of such cost; (a) such percentage to be determined in

the case of the New York state and local employees' retirement system

and the New York state and local police and fire retirement system by

dividing the greater of the amounts calculated under subparagraph (i) or

(ii) of this paragraph by the salary used for calculating costs under

paragraph one of this subdivision: (i) the annual compensation such

member would have earned during the salary period used for calculating

costs under this subdivision had such member remained in the original

position, as determined by applying annual increases of seven percent

from the time of such original twelve month period to the amount of

annual compensation such member was actually paid by such employer

during the first twelve months of employment or (ii) the amount

determined by applying annual increases of seven percent to the amount

an individual employed on a full-time basis at the then applicable state

minimum wage would have earned during such twelve month period; (b) such

percentage in the case of the New York state teachers' retirement system

to be determined by dividing by the member's annualized salary in the

year in which the cost under paragraph one of this subdivision is

determined, by the following: the member's annualized salary in the plan

year in which the member was first eligible to join a public retirement

system increased by seven percent per year for each year from the plan

year in which the member was first eligible to join a public retirement

system to the plan year in which such cost is determined.

f. Notwithstanding any other provision of this section to the

contrary, this section shall not apply to any person who received a

retroactive membership date pursuant to the provisions of chapter one

thousand forty-four of the laws of nineteen hundred eighty-one, chapter

five hundred thirty-nine of the laws of nineteen hundred eighty-four,

chapter five hundred twenty-two of the laws of nineteen hundred

eighty-eight or chapter five hundred twenty-three of the laws of

nineteen hundred eighty-eight.

g. A member receiving a retroactive membership date pursuant to

subdivision b of this section shall pay to his or her current retirement

system those payments, with applicable interest thereon, which would

have been made by such member had he or she been a member of such

retirement system during the period of service beginning from the date

which is being credited pursuant to such subdivision b. For members of a

retirement system or pension fund maintained by the city of New York,

the granting of any service credit pursuant to this section (1) shall be

used only for the purpose of determining the amount of any benefit and

not for the purpose of determining eligibility for a benefit and (2)

shall not be deemed or construed to create any right for the payment of

a pension-providing-for-increased-take-home-pay for such period or to

create any liability or responsibility for the funding of such benefit

by the city of New York or any other pension obligor or to create any

liability or responsibility for the accumulation of a

reserve-for-increased-take-home-pay.

h. Anything in this section to the contrary notwithstanding, any

member of a public retirement system who, prior to reinstatement to an

original date of membership prior to the twenty-seventh day of July,

nineteen hundred seventy-six under section six hundred forty-five of

this chapter, is required to pay mandatory arrears under this section

and still has an amount due, shall, upon application to the comptroller

under the provisions of section six hundred forty-five of this chapter

for reinstatement under such section six hundred forty-five, and upon

conveying in writing to the comptroller a rescission of their election

under this section, thereafter not be required to pay mandatory arrears

under this section provided that payments previously made for such

arrears shall not be refunded to such member. When a member elects to

rescind benefits pursuant to this section and makes application under

section six hundred forty-five of this chapter as permitted under this

subdivision, such member's reinstated rights, benefits and status in the

public retirement system will derive and be defined by such section six

hundred forty-five rather than this section.