HR / Labor Relations
Other Requirement Title:
Re-employment of Retired Public Employees
October 05, 2022
This procedure item applies to:
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 of New York State do provide for exceptions to this rule. This document sets forth guidelines to assist State University of New York campuses in complying with the New York State laws regarding the re-hiring of retired public employees.
Section 150 of the Civil Service Law of New York State authorizes that retired public employees may not be rehired and receive pension benefits while serving the state or a political subdivision. However, Sections 211 and 212 of the Retirement and Social Security Law of New York State present exceptions to Section 150.
Section 212 allows a retired state or local government employee to earn up to $35,000 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.
Section 211 provides a waiver to the Section 212 earnings limitation of $35,000. 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 the 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:
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 New York 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, retired employees 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:
Under Section 211 of the Retirement and Social Security Law, such approvals may be granted for periods not exceeding two years each, provided that such person may not return to work in the same or similar position for a period of one year following retirement. 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. If a retiree exceeds their earnings limit under Section 212 and does not receive approval under Section 212 their pension may be reduced. Annuity income received under the ORP will not be subject to a reduction.
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 state-operated 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 University 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. Some examples:
Questions about whether a given employee's earnings are limited or regarding ORP retirees should be referred to University-wide Benefits at email@example.com.
Suspension of Pension Benefits
Retired members of ERS or TRS who elect to suspend their pension benefits may be re-employed without limitation and may re-join the retirement system. Members of the ORP may elect to suspend their pension benefits by discontinuing any systematic or periodic withdrawals during the period of re-employment. This will allow them to return to payroll without limitation and re-join the ORP. ORP members who have annuitized their contracts or otherwise begun irrevocable distributions may not suspend their pension since such payments cannot be stopped once begun.
Calculation of Earnings Limitation
When an earnings limitation applies, it is calculated as follows:
Retiree – a person who is receiving a service retirement from ERS, TRS, or a New York City 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 annualization or cash withdrawal.
Special rules apply to persons receiving a disability pension from a retirement system. They are not covered by Sections 211 and 212. Other laws limit how much a disability pensioner may earn with the same or different employer. The rules are quite complex. When considering hiring a disability pensioner, a check should be run with the system from which they retired to determine their earnings limit before an offer is made.
Earnings – for the purpose of the earnings limit calculation, earnings 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 refer 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 University Research Foundation) do not count towards the earnings limit.
Earnings paid on the form entitled, “Miscellaneous Income – Form 1099 Miscellaneous” (Form 1099), count towards the earnings limit.
There is no related procedures relevant to this requirement.
Where applicable, this Section contains links and/or references to forms as they relate to this policy:
Form B - Letter to NYS Local and Employees' Retirement System requesting Final Average Salary and Retirement Allowance without Option
Form C - Letter to Teachers Retirement System requesting Final Average Salary and Retirement Allowance without Option
Form D - Request for Hypothetical Retirement Annuity Calculation (TIAA-CREF)
Form A - Approval of the Employment of a Retired Public Employee in the Unclassified Service (Form UP-211)
The following links to FindLaw's New York State Laws are provided for users' convenience; it is not the official site for the State of New York laws.
NYS Civil Service Law §150 (Suspension and annuity during public employment)
NYS Retirement and Social Security Law §§ 211 & 212 (Employment of retired persons without diminution of retirement allowance) and (Employment of retired persons)
In case of questions, readers are advised to refer to the New York State Legislature site for the menu of New York State Consolidated.
There are no appendicies relevant to this requirement.