Senate Bill S5533

Signed By Governor

2009-2010 Legislative Session

Provides for compliance by the NYS&LERS and NYS&LP&FRS with the requirements of the federal older workers' benefit protection act

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Archive: Last Bill Status - Signed by Governor

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

View Actions

Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Sep 17, 2010	signed chap.513
Sep 07, 2010	delivered to governor
Jun 24, 2010	returned to senate passed assembly ordered to third reading rules cal.330 substituted for a7972a
May 12, 2010	referred to governmental employees delivered to assembly passed senate
May 03, 2010	advanced to third reading
Apr 28, 2010	2nd report cal.
Apr 27, 2010	1st report cal.450
Feb 22, 2010	print number 5533a
Feb 22, 2010	amend and recommit to civil service and pensions
Jan 06, 2010	referred to civil service and pensions
Jul 16, 2009	committed to rules
Jun 01, 2009	advanced to third reading
May 27, 2009	2nd report cal.
May 26, 2009	1st report cal.447
May 14, 2009	referred to civil service and pensions

Votes

- May 12, 2010 - Floor Vote
  S5533
  
  Aye
  
  61
  
  Nay
  
  0
  
  Absent
  
  1
  
  Excused
  
  0
  
  Abstained
  
  0
  - - Floor Vote: May 12, 2010
      
      aye (61)
      
      Adams
      
      Addabbo Jr.
      
      Alesi
      
      Aubertine
      
      Bonacic
      
      Breslin
      
      DeFrancisco
      
      Diaz
      
      Dilan
      
      Duane
      
      Espada
      
      Farley
      
      Flanagan
      
      Foley
      
      Fuschillo
      
      Golden
      
      Griffo
      
      Hannon
      
      Hassell-Thompson
      
      Huntley
      
      Johnson
      
      Johnson
      
      Klein
      
      Krueger
      
      Kruger
      
      LaValle
      
      Lanza
      
      Larkin
      
      Leibell
      
      Libous
      
      Little
      
      Marcellino
      
      Maziarz
      
      McDonald
      
      Montgomery
      
      Morahan
      
      Nozzolio
      
      Onorato
      
      Oppenheimer
      
      Padavan
      
      Parker
      
      Peralta
      
      Perkins
      
      Ranzenhofer
      
      Robach
      
      Saland
      
      Savino
      
      Schneiderman
      
      Serrano
      
      Seward
      
      Skelos
      
      Smith
      
      Squadron
      
      Stachowski
      
      Stavisky
      
      Stewart-Cousins
      
      Thompson
      
      Valesky
      
      Volker
      
      Winner
      
      Young
      
      absent (1)
      
      Sampson
  Apr 27, 2010 - Civil Service And Pensions Committee Vote
  S5533
  
  Aye
  
  12
  
  Nay
  
  0
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  
  0
  - - Civil Service And Pensions Committee Vote: Apr 27, 2010
      
      aye (12)
      
      Addabbo Jr.
      
      Dilan
      
      Foley
      
      Fuschillo
      
      Hannon
      
      Huntley
      
      Lanza
      
      Leibell
      
      Perkins
      
      Robach
      
      Savino
      
      Thompson

Bill Amendments

Original

A (Active)

co-Sponsors

2009-S5533 - Details

See Assembly Version of this Bill:: A7972
Law Section:: Retirement and Social Security Law
Laws Affected:: Amd §§62, 362, 448, 506, 507, 508, 605 & 606, R & SS L

2009-S5533 - Summary

Provides for compliance by the NYS&LERS and NYS&LP&FRS with the requirements of the federal older workers' benefit protection act; provides that provisions relating to disability benefits, ordinary death benefits and post-retirement death benefits would be modified to be consistent with benefits currently paid by other retirement systems as required by OWBPA.

2009-S5533 - Sponsor Memo

                                 BILL NUMBER:  S5533

 TITLE OF BILL :

An act to amend the retirement and social security law, in relation to
bringing certain provisions of such law into accordance with the
requirements of the federal older workers' benefit protection act
(OWBPA)


 PURPOSE :

To amend provisions of the Retirement and Social Security Law ("RSSL")
relating to death and disability benefits payable to members and
beneficiaries of the New York State and Local Employees Retirement
System and the New York State and Local Police and Fire Retirement
System (the "Retirement Systems") in a manner that will comply with
the requirements of the Federal Older Workers' Benefit Protection Act.

 SUMMARY OF PROVISIONS :

Section 1 of the bill is a declaration of legislative intent.

Section 2 of the bill would amend RSSL §62(b)(1) to except members
enrolled in a plan under §§ 70-a, 71 or 75 from its general rule which
provides that individuals who are granted ordinary disability benefits

after attaining age 60 shall receive benefits equal to the amount of
service retirement that would be payable. It further provides that
such plan members shall receive an amount calculated under §
62(b)(2)(c)(2).

Section 3 of the bill would amend RSSL §362 to except members enrolled
in a plan under §§ 370-a, 371 or 375 from its general rule which
provides that individuals who are granted ordinary disability benefits
after attaining age 60 shall receive benefits equal to the amount of
service retirement that would be payable. It further provides that
such plan members shall receive an amount calculated under §
362(b)(2)(c)(2).

Section 4 of the bill would amend RSSL §448(a) (2) to change the rate
of reduction of death benefit amounts payable to individuals based on
the age at which the member entered service. It eliminates for
Retirement System members, death benefit reductions of 10% per year
from age 61, up to a maximum of 90% reduction. It substitutes, for
certain members of the Retirement Systems, a benefit reduction formula
of 3% per year from age 61, not to exceed 60% of the original benefit.
Most members of The New York State and Local Retirement System
("NYSLERS), upon reaching age 61, will have death benefit reductions
of 4% a year, not to exceed 60% of the original benefit. It further
provides that the post-retirement death benefit for a NYSLERS member
will not be less than 10% of the benefit in force at the time of
retirement.

Section 5 of the bill would amend RSSL §506(a) to exempt members of
the NYSLERS from its provision otherwise disqualifying individuals
from ordinary disability benefit eligibility because of the member's
eligibility for normal service retirement benefits.

Section 6 of the bill would amend RSSL §507(a) to exempt members of
the NYSLERS from ineligibility for accidental disability benefits
because of the member's eligibility for normal service retirement
benefits.

Section 6-a of the bill would amend RSSL §507(c) to change the
accidental disability benefits available to NYSLERS members to a
pension equal to 60% of final average salary less 50% of the primary
social security disability benefit, if any, and 100% of the workers
compensation benefits.

Section 7 of the bill would amend RSSL §508(a)(2) to change the rate
of reduction of death benefit amounts payable to individuals based on
the age of the member when he or she last joined the system. It also
eliminates for Retirement System members, death benefit reductions of
10% per year from age 61, up to a maximum of 90% reduction. It
substitutes, for certain members of the Retirement Systems, a benefit
reduction formula of 3% per year from age 61, not to exceed 70% of the
original benefit. Most members of NYSLERS, upon reaching 61, will have
death benefit reductions of 4% a year, not to exceed 60% of the
original benefit. It further provides that the post-retirement death
benefit for a NYSLERS member will not be less than 10% of the benefit
in force at the time of retirement.

Section 8 of the bill would amend RSSL §508 to increase death
benefits, in an OWBPA compliant manner, to a limited group of
Retirement System members who have a constitutional right to coverage
by a repealed provision of such section.

Section 9 of the bill would amend RSSL §605(d) to add a new paragraph
4 to provide a minimum death benefit for NYSLERS members who are
disabled as a result of an accident sustained in the performance of
duties in active service to one-third of the member's final average
salary.

Section 10 of the bill would amend RSSL §606 (a)(2) to change the rate
of reduction of death benefit amounts payable to individuals based on
the age of the member when he or she last joined the system.  It also
eliminates for Retirement System members, death benefit reductions of
10% per year from age 61, up to a maximum of 90% reduction. It
substitutes, for certain members of the Retirement Systems, a benefit
reduction formula of 3% per year from age 61, not to exceed 70% of the
original benefit. Most members of the New York State and Local
Retirement System ("NSLERS"), upon reaching age 61, will have death
benefit reductions of 4% a year, not to exceed 60% of the original
benefit. It further provides that the post-retirement death benefit
for a NYSLERS member will not be less than 10% of the benefit in force
at the time of retirement.

Section 11 provides for an immediate effective date, retroactive to
October 16, 1992, with certain qualifications.

 JUSTIFICATION :

The federal Older Workers' Benefit Protection Act ("OWBPA") was
enacted in October 1990. OWBPA prohibits certain aged-based
discriminatory distinctions in disability and death benefits provided
by employers. OWBPA applies to disability retirement benefits payable
by the Retirement Systems on or after October 16, 1992, and to all
death benefits which became payable on account of deaths which
occurred on or after such date.

Because the Legislature has yet to amend the pertinent provisions of
the Retirement and Social Security Law, the Retirement Systems have
restructured the disability and death benefit formulas to comply with
OWBPA. The new formulas have been in place since June, 1996 and the
Retirement Systems have been paying all new benefits under the
restructured formulas, as well as making adjustments retroactive to
the October 16, 1992 compliance date to all individuals who were
previously paid under non-complying formulas.

The Retirement Systems' benefit structure is now in full compliance
with OWBPA and we believe that the New York State Constitution's
prohibition against diminution of established pension rights and
benefits renders these changes permanent. Nevertheless, the federal
Equal Employment Opportunity Commission has advised the Retirement
Systems that it may view the legislature's continuing failure to
change the pertinent provisions of the RSSL to comply with OWBPA to be
a "willful violation" of Federal Law, which could give rise to "double
damages" to large classes of disability pensioners and death benefit
beneficiaries. In view of this potential, substantial liability and
the fact that Federal Law requires the statutory changes that would be
accomplished by this bill, we believe enactment of this measure is
imperative.

In 1992, the Comptroller commissioned Buck Consultants, Inc.
(hereinafter referred to as "Buck") to analyze the death benefit
structure to determine whether and to what extent such structure
violated OWBPA. The resulting report contained recommendations as to
the best possible approaches to amending the benefit structure to
comply with OWBPA in a manner consistent with the Comptroller's
fiduciary responsibilities as Trustee of the New York State Common
Retirement Fund. The analyses and recommendations contained in the
resulting report were utilized and followed in the development of the
OWBPA-complying disability and death benefit structures that have been
adopted by the Retirement Systems and are provided by this measure.

There are two ways in which an employer may provide employee
disability and death benefit plans that comply with OWBPA. The first
of the two - the "equal benefits" approach - is to provide benefits
under which the calculations and eligibility requirements do not
contain age-based distinctions. The second means of compliance is
commonly referred to as the "equal costs" method, under which the
costs of providing benefits to different aged individuals are equal.
To use the more common terminology, a benefit plan with age-based
distinctions may comply with OWBPA if the age-based distinctions can
be "cost-justified".

In order to comply with both OWBPA and the New York State
constitution, the death benefit structure had to be revised so as to
increase benefits payable on account of the deaths of older members -
without decreasing amounts payable on account of younger members. In
view of this constitutional mandate to comply with OWBPA in such a
manner, it was less costly for the Retirement Systems to adopt and
implement "cost-justified" death and disability retirement benefit
structures than it would have been to implement "equal benefits"
structures. Minimizing the cost of complying with OWBPA, however, is
not the only reason that a cost-justified approach was utilized by the
Retirement systems. The Comptroller had a fudiciary obligation to
accomplish compliance in a manner that followed the existing state
statutory benefit structure as closely as possible. The fact that the
existing provisions of the RSSL did make; aged-based distinctions in
benefit calculations required adoption of a "cost-justified" benefit
structure.

Not all of the RSSL death and disability benefit provisions are
violative of OWBPA.  Accordingly, only the offending provisions are
affected by this measure. One of the two death benefits which Tier 2,
3 and 4 members of the Employees' Retirement System may elect to
pursuant to RSSL sections 448, 508 and 606 contains age-based benefit
reductions that are not cost-justified. These sections provide for
reductions in benefits based on the age of the individual at the time
of entry into membership, and for additional reductions based on the
age at death (if death occurs following attainment of age 61). Based
on the Buck report findings, we have determined that there is no cost
justification for any reduction based on age at entry to membership,
and accordingly, the restructured benefit formula removes the existing
reductions for age at membership.


These same sections of law provide for a second adjustment based on
the age of the member at the time of death. The reduction is 10% of
the benefit otherwise payable (on account of a qualifying death before
attainment of age 61) for each year by which the age at death exceeds
age 60. Reductions at this rate continue until attainment of age 69,
at which point the benefit is reduced by 90% of the amount payable.
Under the statute, the reduction may not exceed 90%.

We have determined that the statutory reduction of 10% for death at
age 61 and an additional 10% for each year between age 61 and 69 is
not cost-justified. Rather, it was determined that the appropriate
cost-justified amount of the reduction for age at death following
attainment of age 61 for most Employees' Retirement System members is
4% for each year by which the age at death exceeds 60.  With respect
to Police and Fire System members (and Employees' Retirement System
members in special plans), it has been determined that the appropriate
cost-justified amount of the reduction for age at death is 3% for each
year by which the age at death exceeds 60. The maximum reduction,
which applies when death occurs at age 70 or thereafter, is 40% for
most Employees' Retirement System members and 30% for Police and Fire
System members (and for Employees' Retirement System members in
special plans). The restructured benefit structure reflected by this
measure adopts these cost-justified reduction percentages. However, we
note that the provisions requiring aged-based reductions apply only to
a small minority of the Tier 2 Police and Fire System membership.

Similarly, this bill would amend provisions of the RSSL that make
age-based distinctions for disability retirement benefits available to
members of the New York State and Local Retirement System that are
impermissible under OWBPA. Under the existing provisions of sections
62 and 362, the ordinary disability benefits payable to the very few
(if any) contributory Tier 1 and 2 members of both Systems who have
attained age 60 are limited to the amount of the service retirement
benefit that would be payable to such individuals. This measure would
amend those sections to provide that the disability benefits for such
individuals shall be calculated under statutory formulas applicable to
younger applicants. Sections 506 and 507 of the RSSL, which provide
disability retirement benefits for Tier 3 members of the Employees'
Retirement System, currently provide that individuals eligible for
"normal" retirement shall not be eligible. The phrase "normal
retirement benefits" refers to benefits which are not reduced for
early retirement (prior to attainment of age 62 for most Tier 3
members; 55 for those with 30 years of credited service).
Accordingly, these sections effectively provide that individuals who
have attained age 62 (or 55, with 30 years of credited service) are
ineligible for disability retirement. This measure would remove these
limitations, and make such disability benefits available to
individuals without regard to age. Lastly, this bill would amend
section 605 of the RSSL which currently provides for impermissible
age-based reductions in the benefit calculation. Under this measure,
section 605 provides a benefit equal to one-third of final average
salary to all applicants who are permanently incapacitated as the
result of an accident.

In conclusion, this measure would bring the statutory provisions
pertaining to disability and death benefits for members of the New
York State and Local Retirement Systems into compliance with OWBPA.
Enactment of this measure would not produce any additional costs to
the State or participating employers because the changes to the
benefit structure provided herein have already been implemented in
order to comply with OWBPA, and the employer billing rates in effect
already reflect these changes. We emphasize that federal law requires
these changes, and failure to amend the technically offending
provisions of the Retirement and Social Security Law may be viewed as
a "willful violation" of federal law that possibly could result in
damages.
In view of the foregoing, the Comptroller respectfully urges enactment
of this measure.

2009-S5533 - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5533

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              May 14, 2009
                               ___________

Introduced  by  Sen.  SAVINO -- (at request of the State Comptroller) --
  read twice and ordered printed, and when printed to  be  committed  to
  the Committee on Civil Service and Pensions

AN  ACT  to amend the retirement and social security law, in relation to
  bringing certain provisions of  such  law  into  accordance  with  the
  requirements  of  the  federal  older  workers' benefit protection act
  (OWBPA)

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Declaration of legislative intent. This act is intended to
bring the statutory provisions pertaining to  the  New  York  state  and
local  employees'  retirement  system  and  the New York state and local
police and fire retirement system into compliance with the Federal Older
Workers' Benefit Protection Act, P.L. 101-433, by  providing  death  and
disability  benefits  for  which the cost incurred on behalf of an older
member is no less than that incurred on behalf of a  younger  member  of
such  systems,  as  permissible under section 1625.10 of Title 29 of the
Code of Federal Regulations.
  S 2. Paragraph 1 of subdivision b of section 62 of the retirement  and
social  security law, as amended by chapter 1087 of the laws of 1969, is
amended to read as follows:
  1. If the member has attained age sixty when such  retirement  becomes
effective,  his OR HER retirement allowance shall be equal to that which
he OR SHE would receive in the case of superannuation retirement, UNLESS
THE MEMBER IS ENROLLED IN  A  PLAN  PROVIDED  UNDER  SECTION  SEVENTY-A,
SEVENTY-ONE-A OR SEVENTY-FIVE OF THIS ARTICLE, IN WHICH CASE THE BENEFIT
SHALL  BE  CALCULATED  IN THE MANNER DESCRIBED IN CLAUSE TWO OF SUBPARA-
GRAPH (C) OF PARAGRAPH TWO OF THIS SUBDIVISION.
  S 3. Paragraph 1 of subdivision b of section 362 of the retirement and
social security law, as amended by chapter 1087 of the laws of 1969,  is
amended to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10320-02-9

S. 5533                             2

  1.  If  a  member  has attained age sixty when such retirement becomes
effective, his OR HER retirement allowance shall be equal to that  which
he OR SHE would receive in the case of superannuation retirement, UNLESS
THE  MEMBER  IS  ENROLLED IN A PLAN PROVIDED UNDER SECTION THREE HUNDRED
SEVENTY-A,  THREE HUNDRED SEVENTY-ONE-A OR THREE HUNDRED SEVENTY-FIVE OF
THIS ARTICLE, IN WHICH CASE THE  BENEFIT  SHALL  BE  CALCULATED  IN  THE
MANNER  DESCRIBED  IN CLAUSE TWO OF SUBPARAGRAPH (C) OF PARAGRAPH TWO OF
THIS SUBDIVISION.
  S 4. Paragraph 2 of subdivision a of section 448 of the retirement and
social security law, as amended by chapter 559 of the laws of  2005,  is
amended to read as follows:
  2.  A  benefit  upon  the  death  of  a member in service equal to the
member's salary upon his OR HER completion of one year of  service,  two
years'  salary upon completion of two years of service, and three years'
salary upon completion of three years of  service.  In  the  case  of  a
member  of  a  retirement system other than the New York state teachers'
retirement system, the New York city employees' retirement  system,  the
New  York  city  board of education retirement system [or], the New York
city teachers' retirement system, THE NEW YORK STATE AND  LOCAL  EMPLOY-
EES'  RETIREMENT  SYSTEM OR THE NEW YORK STATE AND LOCAL POLICE AND FIRE
RETIREMENT SYSTEM, such benefit shall be subject to the following  limi-
tations:
  (a)  If  the member last joined the retirement system prior to attain-
ment of age fifty-two, the maximum benefit shall be three years' salary;
  (b) If the member was age fifty-two when he OR  SHE  last  joined  the
retirement  system,  the maximum benefit shall be two and one-half times
annual salary;
  (c) If the member was age fifty-three when he OR SHE last  joined  the
retirement system, the maximum benefit shall be two years' salary;
  (d)  If  the  member was age fifty-four when he OR SHE last joined the
retirement system, the maximum benefit shall be one and  one-half  times
annual salary;
  (e) If the member was age fifty-five or older but under age sixty-five
when  he  OR  SHE last joined the retirement system, the maximum benefit
shall be one year's salary; and
  (f) If the member was age sixty-five or older  when  he  OR  SHE  last
joined  the retirement system, the maximum benefit shall be one thousand
dollars.
  In the case of a member of a retirement system other than the New York
state teachers' retirement system, the New York city employees'  retire-
ment  system,  the  New  York  city board of education retirement system
[or], the New York city teachers' retirement system, THE NEW YORK  STATE
AND  LOCAL  EMPLOYEES' RETIREMENT SYSTEM OR THE NEW YORK STATE AND LOCAL
POLICE AND FIRE RETIREMENT SYSTEM, commencing  upon  attainment  of  age
sixty-one,  the  benefit  otherwise  provided pursuant to this paragraph
shall be reduced while the member is in service  to  ninety  [percentum]
PER CENTUM of the benefit otherwise payable and each year thereafter the
benefit  payable  shall be reduced by an amount equal to ten [percentum]
PER CENTUM per year of the original benefit otherwise payable,  but  not
below ten [percentum] PER CENTUM of the original benefit otherwise paya-
ble.
  In  the  case  of  a member of the New York state teachers' retirement
system, commencing upon attainment of age sixty-one, the benefit  other-
wise  provided  pursuant  to this paragraph [two] shall be reduced while
the member is in service to ninety-six per centum of the benefit  other-
wise  payable  and  each  year  thereafter  the benefit payable shall be

S. 5533                             3

reduced by an amount equal to four per centum per year of  the  original
benefit  otherwise  payable,  but  not  below  sixty  per  centum of the
original benefit otherwise payable. In the case of a member of  the  New
York  city  employees'  retirement  system,  the  New York city board of
education retirement system or the New York  city  teachers'  retirement
system,  commencing upon attainment of age sixty-one, the benefit other-
wise provided pursuant to this paragraph  shall  be  reduced  while  the
member  is in service to ninety-five per centum of the benefit otherwise
payable and each year thereafter the benefit payable shall be reduced by
an amount equal to five per centum per  year  of  the  original  benefit
otherwise  payable, but not below fifty per centum of the original bene-
fit otherwise payable.  IN THE CASE OF ANY MEMBER OF THE NEW YORK  STATE
AND  LOCAL EMPLOYEES' RETIREMENT SYSTEM WHO IS PERMITTED TO RETIRE WITH-
OUT REGARD TO AGE OR A MEMBER OF THE NEW YORK STATE AND LOCAL POLICE AND
FIRE RETIREMENT SYSTEM, COMMENCING UPON ATTAINMENT OF AGE SIXTY-ONE, THE
BENEFIT OTHERWISE PROVIDED PURSUANT TO THIS PARAGRAPH SHALL  BE  REDUCED
WHILE THE MEMBER IS IN SERVICE TO NINETY-SEVEN PER CENTUM OF THE BENEFIT
OTHERWISE PAYABLE, AND EACH YEAR THEREAFTER THE BENEFIT PAYABLE SHALL BE
REDUCED  BY AN AMOUNT EQUAL TO THREE PER CENTUM PER YEAR OF THE ORIGINAL
BENEFIT OTHERWISE PAYABLE, BUT NOT  BELOW  SEVENTY  PER  CENTUM  OF  THE
ORIGINAL  BENEFIT  OTHERWISE PAYABLE. IN THE CASE OF ANY OTHER MEMBER OF
THE NEW YORK STATE AND LOCAL EMPLOYEES'  RETIREMENT  SYSTEM,  COMMENCING
UPON  ATTAINMENT OF AGE SIXTY-ONE, THE BENEFIT OTHERWISE PROVIDED PURSU-
ANT TO THIS PARAGRAPH SHALL BE REDUCED WHILE THE MEMBER IS IN SERVICE TO
NINETY-SIX PER CENTUM OF THE BENEFIT OTHERWISE PAYABLE,  AND  EACH  YEAR
THEREAFTER  THE  BENEFIT  PAYABLE SHALL BE REDUCED BY AN AMOUNT EQUAL TO
FOUR PER CENTUM PER YEAR OF THE ORIGINAL BENEFIT OTHERWISE PAYABLE,  BUT
NOT  BELOW  SIXTY  PER CENTUM OF THE ORIGINAL BENEFIT OTHERWISE PAYABLE.
Upon retirement from any retirement system, the benefit in  force  shall
be reduced by fifty [percentum] PER CENTUM; upon completion of the first
year of retirement, the benefit in force at the time of retirement shall
be reduced by an additional twenty-five [percentum] PER CENTUM, and upon
commencement  of  the third year of retirement, the benefit shall be ten
[percentum] PER CENTUM of the benefit in force at age sixty, if any,  or
at  the  time  of  retirement if retirement preceded such age; provided,
however, the benefit in  retirement  shall  not  be  reduced  below  ten
[percentum]  PER CENTUM of the benefit in force at age sixty, if any, or
at the time of retirement if retirement preceded  such  age.    NOTWITH-
STANDING  ANY  OTHER  PROVISION  OF  THIS PARAGRAPH TO THE CONTRARY, THE
BENEFIT FOR A RETIREE FROM THE  NEW  YORK  STATE  AND  LOCAL  EMPLOYEES'
RETIREMENT SYSTEM SHALL NOT BE REDUCED BELOW TEN PER CENTUM OF THE BENE-
FIT IN FORCE AT THE TIME OF RETIREMENT.
  S 5. Subdivision a of section 506 of the retirement and social securi-
ty  law,  as  amended  by chapter 559 of the laws of 2005, is amended to
read as follows:
  a. A member in active service who is not eligible for a normal retire-
ment benefit shall, upon completing five years or more  of  service,  be
eligible  for the ordinary disability benefit described in subdivision b
of this section if such member has been determined to  be  eligible  for
primary  social security disability benefits; provided, however, that no
member of the New York state teachers' retirement system, the  New  York
city  employees' retirement system, the New York city board of education
retirement system [or], the New York city teachers' retirement system OR
THE NEW YORK STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM who is  other-
wise  eligible for ordinary disability benefits pursuant to this section

S. 5533                             4

shall be deemed to be ineligible for such benefits because  such  member
is eligible for a normal service retirement benefit.
  S 6. Subdivision a of section 507 of the retirement and social securi-
ty  law,  as  amended  by chapter 489 of the laws of 2008, is amended to
read as follows:
  a. A member in active service, or a vested member incapacitated as the
result of a qualifying  World  Trade  Center  condition  as  defined  in
section  two  of  this chapter, who is not eligible for a normal service
retirement benefit shall be eligible for the accidental disability bene-
fit described in subdivision c of this section if such member  has  been
determined  to  be eligible for primary social security disability bene-
fits and was disabled as the natural and proximate result of an accident
sustained in such active service and not caused  by  such  member's  own
willful  negligence;  provided,  however, that no member of the New York
state teachers' retirement system, the New York city employees'  retire-
ment  system,  the  New  York  city board of education retirement system
[or], the New York city teachers' retirement  system  OR  THE  NEW  YORK
STATE  AND  LOCAL EMPLOYEES' RETIREMENT SYSTEM who is otherwise eligible
for accidental disability benefits pursuant to  this  section  shall  be
deemed  to be ineligible for such benefits because such member is eligi-
ble for a normal service retirement benefit.
  S 6-a. Subdivision c of section 507 of the retirement and social secu-
rity law, as amended by chapter 559 of the laws of 2005, is  amended  to
read as follows:
  c.  In  the case of a member of a retirement system other than THE NEW
YORK STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM, the  New  York  state
teachers'  retirement  system,  the  New York city employees' retirement
system, the New York city board of education retirement  system  or  the
New  York  city  teachers'  retirement system, the accidental disability
benefit hereunder shall be a pension equal to two percent of final aver-
age salary times years of credited service which such member would  have
attained if employment had continued until such member's full escalation
date,  not  in excess of the maximum years of service creditable for the
normal service retirement benefit, less (i) fifty percent of the primary
social security disability benefit, if any, as provided in section  five
hundred  eleven  of  this  article,  and (ii) one hundred percent of any
workers' compensation benefits payable.
  In the case of a member of THE NEW YORK  STATE  AND  LOCAL  EMPLOYEES'
RETIREMENT  SYSTEM,  the New York state teachers' retirement system, the
New York city employees' retirement system, the New York city  board  of
education  retirement  system  or the New York city teachers' retirement
system, the accidental disability benefit hereunder shall be  a  pension
equal  to  sixty percent of final average salary, less (i) fifty percent
of the primary social security disability benefit, if any,  as  provided
in  section  five  hundred  eleven of this article, and (ii) one hundred
percent of any workers' compensation benefits payable. In  the  event  a
disability  retiree  from  any retirement system is not eligible for the
primary social security disability benefit and continues to be  eligible
for  disability  benefits  hereunder,  such  disability benefit shall be
reduced by one-half of such retiree's primary social security retirement
benefit, commencing at age sixty-two, in the same manner as provided for
service retirement benefits under section five hundred  eleven  of  this
article.
  S 7. Paragraph 2 of subdivision a of section 508 of the retirement and
social  security  law, as amended by chapter 559 of the laws of 2005, is
amended to read as follows:

S. 5533                             5

  2. A benefit upon the death of  a  member  in  service  equal  to  the
member's  salary  upon his OR HER completion of one year of service, two
years' salary upon completion of two years of service, and three  years'
salary  upon  completion  of  three  years  of service. In the case of a
member  of  a  retirement system other than the New York state teachers'
retirement system, the New York city employees' retirement  system,  the
New  York  city  board of education retirement system [or], the New York
city teachers' retirement system,  OR  THE  NEW  YORK  STATE  AND  LOCAL
EMPLOYEES'  RETIREMENT  SYSTEM,  such  benefit  shall  be subject to the
following limitations:
  (a) If the member last joined the retirement system prior  to  attain-
ment of age fifty-two, the maximum benefit shall be three years' salary;
  (b)  If  the  member  was age fifty-two when he OR SHE last joined the
retirement system, the maximum benefit shall be two and  one-half  times
annual salary;
  (c)  If  the member was age fifty-three when he OR SHE last joined the
retirement system, the maximum benefit shall be two years' salary;
  (d) If the member was age fifty-four when he OR SHE  last  joined  the
retirement  system,  the maximum benefit shall be one and one-half times
annual salary;
  (e) If the member was age fifty-five or older but under age sixty-five
when he OR SHE last joined the retirement system,  the  maximum  benefit
shall be one year's salary; and
  (f)  If  the  member  was  age sixty-five or older when he OR SHE last
joined the retirement system, the maximum benefit shall be one  thousand
dollars.
  In the case of a member of a retirement system other than the New York
state  teachers' retirement system, the New York city employees' retire-
ment system, the New York city  board  of  education  retirement  system
[or],  the  New  York  city teachers' retirement system, OR THE NEW YORK
STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM, commencing upon attainment
of age sixty-one, the benefit otherwise provided pursuant to this  para-
graph shall be reduced while the member is in service to ninety [percen-
tum] PER CENTUM of the benefit otherwise payable and each year thereaft-
er  the  benefit  payable  shall  be  reduced  by an amount equal to ten
[percentum] PER CENTUM per year of the original benefit otherwise  paya-
ble,  but  not  below ten [percentum] PER CENTUM of the original benefit
otherwise payable.
  Notwithstanding any other provision of this paragraph, in the case  of
a  member  of the New York state teachers' retirement system, commencing
upon attainment of age sixty-one, the benefit otherwise provided  pursu-
ant to this paragraph shall be reduced while the member is in service to
ninety-six  per  centum  of the benefit otherwise payable, and each year
thereafter the benefit payable shall be reduced by an  amount  equal  to
four  per centum per year of the original benefit otherwise payable, but
not below sixty per centum of the original benefit otherwise payable. In
the case of a member of the New York city employees' retirement  system,
the  New  York city board of education retirement system or the New York
city teachers' retirement system,  commencing  upon  attainment  of  age
sixty-one,  the  benefit  otherwise  provided pursuant to this paragraph
shall be reduced while the member  is  in  service  to  ninety-five  per
centum  of  the  benefit  otherwise payable and each year thereafter the
benefit payable shall be reduced by an amount equal to five  per  centum
per  year of the original benefit otherwise payable, but not below fifty
per centum of the original benefit otherwise payable.   IN THE  CASE  OF
ANY  MEMBER OF THE NEW YORK STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM

S. 5533                             6

WHO IS PERMITTED TO  RETIRE  WITHOUT  REGARD  TO  AGE,  COMMENCING  UPON
ATTAINMENT  OF AGE SIXTY-ONE, THE BENEFIT OTHERWISE PROVIDED PURSUANT TO
THIS PARAGRAPH SHALL BE REDUCED WHILE THE MEMBER IS IN SERVICE TO  NINE-
TY-SEVEN  PER  CENTUM  OF  THE  BENEFIT OTHERWISE PAYABLE, AND EACH YEAR
THEREAFTER THE BENEFIT PAYABLE SHALL BE REDUCED BY AN  AMOUNT  EQUAL  TO
THREE PER CENTUM PER YEAR OF THE ORIGINAL BENEFIT OTHERWISE PAYABLE, BUT
NOT  BELOW SEVENTY PER CENTUM OF THE ORIGINAL BENEFIT OTHERWISE PAYABLE.
IN THE CASE OF ANY OTHER MEMBER OF THE NEW YORK STATE AND LOCAL  EMPLOY-
EES' RETIREMENT SYSTEM, COMMENCING UPON ATTAINMENT OF AGE SIXTY-ONE, THE
BENEFIT  OTHERWISE  PROVIDED PURSUANT TO THIS PARAGRAPH SHALL BE REDUCED
WHILE THE MEMBER IS IN SERVICE TO NINETY-SIX PER CENTUM OF  THE  BENEFIT
OTHERWISE PAYABLE, AND EACH YEAR THEREAFTER THE BENEFIT PAYABLE SHALL BE
REDUCED  BY  AN AMOUNT EQUAL TO FOUR PER CENTUM PER YEAR OF THE ORIGINAL
BENEFIT OTHERWISE PAYABLE,  BUT  NOT  BELOW  SIXTY  PER  CENTUM  OF  THE
ORIGINAL  BENEFIT OTHERWISE PAYABLE. Upon retirement from any retirement
system, the benefit in force shall be reduced by fifty  [percentum]  PER
CENTUM;  upon completion of the first year of retirement, the benefit in
force at the time of retirement shall be reduced by an additional  twen-
ty-five  [percentum] PER CENTUM, and upon commencement of the third year
of retirement, the benefit shall be ten [percentum] PER  CENTUM  of  the
benefit  in  force at age sixty, if any, or at the time of retirement if
retirement preceded such age; provided, however, the benefit in  retire-
ment  shall not be reduced below ten [percentum] PER CENTUM of the bene-
fit in force at age sixty, if any, or  at  the  time  of  retirement  if
retirement  preceded  such age.   NOTWITHSTANDING ANY OTHER PROVISION OF
THIS PARAGRAPH TO THE CONTRARY, THE BENEFIT FOR A RETIREE FROM  THE  NEW
YORK  STATE  AND LOCAL EMPLOYEES' RETIREMENT SYSTEM SHALL NOT BE REDUCED
BELOW TEN PER CENTUM OF THE BENEFIT IN FORCE AT THE TIME OF RETIREMENT.
  S 8. Section 508 of the retirement and social security law is  amended
by adding a new subdivision f to read as follows:
  F. WITH RESPECT TO A MEMBER OF THE NEW YORK STATE AND LOCAL EMPLOYEES'
RETIREMENT  SYSTEM  WHO WAS COVERED BY PARAGRAPH TWO OF SUBDIVISION A OF
THIS SECTION, AS ADDED BY CHAPTER EIGHT HUNDRED NINETY OF  THE  LAWS  OF
NINETEEN  HUNDRED  SEVENTY-SIX,  PRIOR TO ITS REPEAL PURSUANT TO CHAPTER
SIX HUNDRED SEVENTEEN OF THE LAWS OF NINETEEN HUNDRED EIGHTY-SIX AND WHO
IS ENTITLED UNDER THE STATE CONSTITUTION  TO  HAVE  BENEFITS  CALCULATED
UNDER  SUCH  PROVISION  AS  IT  READ  PRIOR  TO  SUCH  NINETEEN  HUNDRED
EIGHTY-SIX AMENDMENT, THE LUMP SUM DEATH  BENEFIT  SHALL  BE  DETERMINED
PURSUANT  TO  SUBDIVISION A OF THIS SECTION. WITH RESPECT TO A MEMBER OF
THE NEW YORK STATE  AND  LOCAL  EMPLOYEES'  RETIREMENT  SYSTEM  WHO  WAS
COVERED  BY  SUBDIVISION  B  OF  THIS SECTION, AS ADDED BY CHAPTER EIGHT
HUNDRED NINETY OF THE LAWS OF NINETEEN HUNDRED SEVENTY-SIX, PRIOR TO ITS
REPEAL PURSUANT TO CHAPTER SIX HUNDRED SEVENTEEN OF THE LAWS OF NINETEEN
HUNDRED EIGHTY-SIX AND WHO IS ENTITLED UNDER THE STATE  CONSTITUTION  TO
HAVE  BENEFITS  CALCULATED UNDER SUCH PROVISION AS IT READ PRIOR TO SUCH
NINETEEN HUNDRED EIGHTY-SIX AMENDMENT, THE LUMP SUM DEATH BENEFIT  SHALL
BE DETERMINED PURSUANT TO SUBDIVISION A OF THIS SECTION.
  S 9. Subdivision d of section 605 of the retirement and social securi-
ty law is amended by adding a new paragraph 4 to read as follows:
  4.  NOTWITHSTANDING  THE  PROVISIONS  OF THIS SUBDIVISION, THE MINIMUM
BENEFIT PAYABLE TO A MEMBER OF THE NEW YORK STATE AND  LOCAL  EMPLOYEES'
RETIREMENT  SYSTEM  WHO HAS BEEN DETERMINED TO BE PHYSICALLY OR MENTALLY
INCAPACITATED FOR PERFORMANCE OF GAINFUL EMPLOYMENT AS THE  NATURAL  AND
PROXIMATE  RESULT  OF  AN  ACCIDENT  NOT  CAUSED  BY  WILLFUL NEGLIGENCE
SUSTAINED IN THE PERFORMANCE OF DUTIES IN ACTIVE SERVICE WHILE  ACTUALLY

S. 5533                             7

A  MEMBER  OF  THE  RETIREMENT SYSTEM SHALL BE A PENSION OF ONE-THIRD OF
SUCH MEMBER'S FINAL AVERAGE SALARY.
  S  10.  Paragraph  2 of subdivision a of section 606 of the retirement
and social security law, as amended by chapter 559 of the laws of  2005,
is amended to read as follows:
  2.  A  benefit  upon  the  death  of  a member in service equal to the
member's salary upon his OR HER completion of one year of  service,  two
years'  salary upon completion of two years of service, and three years'
salary upon completion of three years of  service.  In  the  case  of  a
member  of  a  retirement system other than the New York state teachers'
retirement system, the New York city employees' retirement  system,  the
New  York  city  board of education retirement system [or], the New York
city teachers' retirement system OR THE NEW YORK STATE AND LOCAL EMPLOY-
EES' RETIREMENT SYSTEM, such benefit shall be subject to  the  following
limitations:
  (a)  If  the member last joined the retirement system prior to attain-
ment of age fifty-two, the maximum benefit shall be three years' salary;
  (b) If the member was age fifty-two when he OR  SHE  last  joined  the
retirement  system,  the maximum benefit shall be two and one-half times
annual salary;
  (c) If the member was age fifty-three when he OR SHE last  joined  the
retirement system, the maximum benefit shall be two years' salary;
  (d)  If  the  member was age fifty-four when he OR SHE last joined the
retirement system, the maximum benefit shall be one and  one-half  times
annual salary;
  (e) If the member was age fifty-five or older but under age sixty-five
when  he  OR  SHE last joined the retirement system, the maximum benefit
shall be one year's salary; and
  (f) If the member was age sixty-five or older  when  he  OR  SHE  last
joined  the retirement system, the maximum benefit shall be one thousand
dollars.
  In the case of a member of a retirement system other than the New York
state teachers' retirement system, the New York city employees'  retire-
ment  system,  the  New  York  city board of education retirement system
[or], the New York city teachers' retirement  system  OR  THE  NEW  YORK
STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM, commencing upon attainment
of  age sixty-one, the benefit otherwise provided pursuant to this para-
graph shall be reduced while the member is in service to ninety [percen-
tum] PER CENTUM of the benefit otherwise payable and each year thereaft-
er the benefit payable shall be  reduced  by  an  amount  equal  to  ten
[percentum]  PER CENTUM per year of the original benefit otherwise paya-
ble, but not below ten [percentum] PER CENTUM of  the  original  benefit
otherwise payable.
  In  the  case  of  a member of the New York state teachers' retirement
system, commencing upon attainment of age sixty-one, the benefit  other-
wise  provided  pursuant  to  this  paragraph shall be reduced while the
member is in service to ninety-six per centum of the  benefit  otherwise
payable,  and  each year thereafter the benefit payable shall be reduced
by an amount equal to four per centum per year of the  original  benefit
otherwise  payable, but not below sixty per centum of the original bene-
fit otherwise payable. In the case of a member  of  the  New  York  city
employees'  retirement  system,  the  New  York  city board of education
retirement system or the New  York  city  teachers'  retirement  system,
commencing  upon  attainment  of  age  sixty-one,  the benefit otherwise
provided pursuant to this paragraph shall be reduced while the member is
in service to ninety-five per centum of the  benefit  otherwise  payable

S. 5533                             8

and  each  year  thereafter  the  benefit payable shall be reduced by an
amount equal to five per centum per year of the original benefit  other-
wise  payable,  but  not  below fifty per centum of the original benefit
otherwise  payable.  IN THE CASE OF ANY MEMBER OF THE NEW YORK STATE AND
LOCAL EMPLOYEES' RETIREMENT SYSTEM WHO IS PERMITTED  TO  RETIRE  WITHOUT
REGARD  TO AGE, COMMENCING UPON ATTAINMENT OF AGE SIXTY-ONE, THE BENEFIT
OTHERWISE PROVIDED PURSUANT TO THIS PARAGRAPH SHALL BE REDUCED WHILE THE
MEMBER IS IN SERVICE TO NINETY-SEVEN PER CENTUM OF THE BENEFIT OTHERWISE
PAYABLE, AND EACH YEAR THEREAFTER THE BENEFIT PAYABLE SHALL  BE  REDUCED
BY  AN AMOUNT EQUAL TO THREE PER CENTUM PER YEAR OF THE ORIGINAL BENEFIT
OTHERWISE PAYABLE, BUT NOT BELOW SEVENTY  PER  CENTUM  OF  THE  ORIGINAL
BENEFIT  OTHERWISE  PAYABLE.  IN THE CASE OF ANY OTHER MEMBER OF THE NEW
YORK STATE AND  LOCAL  EMPLOYEES'  RETIREMENT  SYSTEM,  COMMENCING  UPON
ATTAINMENT  OF AGE SIXTY-ONE, THE BENEFIT OTHERWISE PROVIDED PURSUANT TO
THIS PARAGRAPH SHALL BE REDUCED WHILE THE MEMBER IS IN SERVICE TO  NINE-
TY-SIX PER CENTUM OF THE BENEFIT OTHERWISE PAYABLE, AND EACH YEAR THERE-
AFTER  THE  BENEFIT  PAYABLE SHALL BE REDUCED BY AN AMOUNT EQUAL TO FOUR
PER CENTUM PER YEAR OF THE ORIGINAL BENEFIT OTHERWISE PAYABLE,  BUT  NOT
BELOW  SIXTY  PER CENTUM OF THE ORIGINAL BENEFIT OTHERWISE PAYABLE. Upon
retirement, from any retirement system, the benefit in  force  shall  be
reduced  by  fifty  [percentum] PER CENTUM; upon completion of the first
year of retirement, the benefit in force at the time of retirement shall
be reduced by an additional twenty-five [percentum] PER CENTUM, and upon
commencement of the third year of retirement, the benefit shall  be  ten
[percentum]  PER CENTUM of the benefit in force at age sixty, if any, or
at the time of retirement if retirement  preceded  such  age;  provided,
however,  the  benefit  in  retirement  shall  not  be reduced below ten
[percentum] PER CENTUM of the benefit in force at age sixty, if any,  or
at  the  time  of  retirement if retirement preceded such age.  NOTWITH-
STANDING ANY OTHER PROVISION OF THIS  PARAGRAPH  TO  THE  CONTRARY,  THE
BENEFIT  FOR  A  RETIREE  FROM  THE  NEW YORK STATE AND LOCAL EMPLOYEES'
RETIREMENT SYSTEM SHALL NOT BE REDUCED BELOW TEN PER CENTUM OF THE BENE-
FIT IN FORCE AT THE TIME OF RETIREMENT.
  S 11. This act shall take effect immediately and shall  be  deemed  to
have  been  in  full  force  and  effect  on and after October 16, 1992,
provided, however, that: (i) this act shall not apply to any payment  of
benefits  which  became payable prior to October 16, 1992; (ii) sections
seven and eight of this act shall be effective if  and,  in  such  case,
only  to  the  extent  section  1  of chapter 617 of the laws of 1986 is
unconstitutional insofar as it abrogates the rights pursuant to  section
508  of  the retirement and social security law as added by section 1 of
chapter 890 of the laws of 1976, of public employees who became  members
of the New York state and local employees' retirement system on or after
July  27, 1976 and before September 1, 1983; and (iii) the amendments to
sections 506, 507, 508, 605 and 606 of the retirement and social securi-
ty law made by sections five, six, six-a, seven, eight, nine and ten  of
this  act, shall not affect the expiration of such sections, as provided
by section 615 of the retirement and  social  security  law,  and  shall
expire therewith.
  FISCAL NOTE.--Pursuant to Legislative Law, Section 50:
  This  bill  would  change the Retirement and Social Security Law as it
affects the New  York  State  and  Local  Employees'  Retirement  System
(NYSLERS)  and  the  New York State and Local Police and Fire Retirement
System (NYSLPFRS) to comply with the requirements of the  Federal  Older
Workers'  Benefit Protection Act ("OWBPA"). Provisions relating to disa-
bility benefits, ordinary  death  benefits,  and  post-retirement  death

S. 5533                             9

benefits  would be modified to be consistent with the benefits currently
being paid by the Retirement Systems, as required by OWBPA.
  If  this  bill is enacted, there will be no increase in benefits being
paid by the NYSLERS and NYSLPFRS to members or beneficiaries. Therefore,
there will be no cost if this bill is enacted.
  This estimate, dated March 17, 2009, and intended for use only  during
the  2009  Legislative  Session, is Fiscal Note No. 2009-187 prepared by
the Actuary for the New York State and Local Police and Fire  Retirement
System and the New York State and Local Employees' Retirement System.

co-Sponsors

2009-S5533A (ACTIVE) - Details

See Assembly Version of this Bill:: A7972
Law Section:: Retirement and Social Security Law
Laws Affected:: Amd §§62, 362, 448, 506, 507, 508, 605 & 606, R & SS L

2009-S5533A (ACTIVE) - Summary

2009-S5533A (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S5533A

TITLE OF BILL:

An act
to amend the retirement and social security law, in relation to bringing
certain provisions of such law into accordance with the requirements of
the federal older workers' benefit protection act (OWBPA)

PURPOSE:

To amend provisions of the Retirement and Social Security Law ("RSSL")
relating to death and disability benefits payable to members and
beneficiaries of the New York State and Local Employees Retirement
System and the New York State and Local Police and Fire Retirement
System (the "Retirement Systems") in a manner that will comply with
the requirements of the Federal Older Workers' Benefit Protection Act.

SUMMARY OF PROVISIONS:

Section 1 of the bill is a declaration of legislative intent.

Section 2 of the bill would amend RSSL §62(b)(1) to except members
enrolled in a plan under §§ 70-a, 71 or 75 from its general rule
which provides that individuals who are granted ordinary disability
benefits after attaining age 60 shall receive benefits equal to the

amount of service retirement that would be payable. It further
provides that such plan members shall receive an amount calculated
under § 62(b)(2)(c)(2).

Section 3 of the bill would amend RSSL §362 to except members enrolled
in a plan under §§ 370-a, 371 or 375 from its general rule which
provides that individuals who are granted ordinary disability
benefits after attaining age 60 shall receive benefits equal to the
amount of service retirement that would be payable. It further
provides that such plan members shall receive an amount calculated
under § 362(b)(2)(c)(2).

Section 4 of the bill would amend RSSL §448(a) (2) to change the rate
of reduction of death benefit amounts payable to individuals based on
the age at which the member entered service. It eliminates for
Retirement System members, death benefit reductions of 10% per year
from age 61, up to a maximum of 90% reduction. It substitutes, for
certain members of the Retirement Systems, a benefit reduction
formula of 3% per year from age 61, not to exceed 60% of the original
benefit. Most members of The New York State and Local Retirement
System
("NYSLERS"), upon reaching age 61, will have death benefit reductions
of 4% a year, not to
exceed 60% of the original benefit. It further provides that the
post-retirement death benefit for a NYSLERS member will not be less
than 10% of the benefit in force at the time of retirement.

Section 5 of the bill would amend RSSL §506(a) to exempt members of the
NYSLERS from its provision otherwise disqualifying individuals from


ordinary disability benefit eligibility because of the member's
eligibility for normal service retirement benefits.

Section 6 of the bill would amend RSSL §507(a) to exempt members of
the NYSLERS from ineligibility for accidental disability benefits
because of the member's eligibility for normal service retirement
benefits.
Section 6-a of the bill would amend RSSL §507(c) to change the
accidental disability benefits available to NYSLERS members to a
pension equal to 60% of final average salary less 50% of the primary
social security disability benefit, if any, and 100% of the workers
compensation benefits.

Section 7 of the bill would amend RSSL §508(a)(2) to change the rate
of reduction of death benefit amounts payable to individuals based on
the age of the member when he or she last joined the system. It also
eliminates for Retirement System members, death benefit reductions of
10% per year from age 61, up to a maximum of 90% reduction. It
substitutes, for certain members of the Retirement Systems, a
benefit reduction formula of 3% per year from age 61, not to
exceed 70% of the original benefit. Most members of NYSLERS, upon
reaching 61, will have death benefit reductions of 4% a year, not to
exceed 60% of the original benefit. It further provides that the
post-retirement death benefit for a NYSLERS member will not be less
than
10% of the benefit in force at the time of retirement.

Section 8 of the bill would amend RSSL §508 to increase death
benefits, in an OWBPA compliant manner, to a limited group of
Retirement System members who have a constitutional right to
coverage by a repealed provision of such section.

Section 9 of the bill would amend RSSL §605(d) to add a new paragraph
4 to provide a minimum death benefit for NYSLERS members who are
disabled as a result of an accident sustained in the performance of
duties in active service to one-third of the member's final
average salary.

Section 10 of the bill would amend RSSL §606 (a)(2) to change the
rate of reduction of death benefit amounts payable to individuals
based on the age of the member when he or she last joined the system.
It also eliminates for Retirement System members, death benefit
reductions of 10% per year from age 61, up to a maximum of 90%
reduction. It substitutes, for certain
members of the Retirement Systems, a benefit reduction formula of 3%
per year from age 61, not to exceed 70% of the original benefit. Most
members of the New York State and Local Retirement System
("NSLERS"), upon reaching age 61, will have death benefit reductions
of 4%
a year, not to exceed 60% of the original benefit. It further provides
that the post-retirement death benefit for a NYSLERS member will not
be less than 10% of the benefit in force at the time of retirement.

Section 11 provides for an immediate effective date, retroactive to
October 16, 1992, with certain qualifications.

JUSTIFICATION:


The federal Older Workers' Benefit Protection Act ("OWBPA") was
enacted in October 1990. OWBPA prohibits certain aged-based
discriminatory distinctions in disability and death benefits provided
by employers. OWBPA applies to disability retirement benefits
payable by the Retirement Systems on or after October 16, 1992, and
to all death benefits which became payable on account of deaths which
occurred on or after such date.

Because the Legislature has yet to amend the pertinent provisions of
the Retirement and Social Security Law, the Retirement Systems have
restructured the disability and death benefit formulas to comply with
OWBPA. The new formulas have been in place since June, 1996 and the
Retirement Systems have been paying all new benefits under the
restructured formulas, as well as making adjustments retroactive to
the October 16, 1992 compliance date to all individuals who were
previously paid under non-complying formulas.

The Retirement Systems' benefit structure is now in full compliance
with OWBPA and we believe that the New York State Constitution's
prohibition against diminution of established pension rights and
benefits renders these changes permanent. Nevertheless, the federal
Equal Employment Opportunity Commission has advised the Retirement
Systems that it may view the legislature's continuing failure to
change the pertinent provisions of the RSSL to comply with OWBPA to
be a "willful violation" of Federal Law, which could give rise to
"double damages" to large classes of disability pensioners and death
benefit beneficiaries. In view of this potential, substantial
liability and the fact that Federal Law requires the statutory
changes that would be accomplished by this bill, we believe enactment
of this measure is imperative.

In 1992, the Comptroller commissioned Buck Consultants, Inc.
(hereinafter referred to as "Buck") to analyze the death benefit
structure to determine whether and to what extent such structure
violated OWBPA. The resulting report contained recommendations as to
the best possible approaches to amending the benefit structure to
comply with OWBPA in a manner consistent with the Comptroller's
fiduciary responsibilities as Trustee of the New York State Common
Retirement Fund. The analyses and recommendations contained in the
resulting report were utilized and followed in the development of the
OWBPA-complying disability and death benefit structures that have
been adopted by the Retirement Systems and are provided by this
measure.

There are two ways in which an employer may provide employee
disability and death benefit plans that comply with OWBPA. The first
of the two - the "equal benefits" approach - is to provide benefits
under which the calculations and eligibility requirements do not
contain age-based distinctions. The second means of compliance is
commonly referred to as the "equal
costs" method, under which the costs of providing benefits to
different aged individuals are
equal. To use the more common terminology, a benefit plan with
age-based distinctions may comply with OWBPA if the age-based
distinctions can be "cost-justified".


In order to comply with both OWBPA and the New York State
constitution, the death benefit structure had to be revised so as
to increase benefits payable on account of the deaths of older
members - without decreasing amounts payable on account of younger
members. In view of this constitutional mandate to comply with OWBPA
in such a manner, it was less costly for the Retirement Systems to
adopt and implement "cost-justified" death and disability
retirement benefit structures than it would have been to implement
"equal benefits" structures. Minimizing the cost of complying with
OWBPA, however, is not the only reason that a cost-justified
approach was utilized by the Retirement systems. The Comptroller
had a fiduciary obligation to accomplish compliance in a
manner that followed the existing state statutory benefit structure
as closely as possible. The fact that the existing provisions of the
RSSL did make; aged-based distinctions in benefit calculations
required adoption of a "cost-justified" benefit structure.

Not all of the RSSL death and disability benefit provisions are
violative of OWBPA.
Accordingly, only the offending provisions are affected by this
measure. One of the two death benefits which Tier 2, 3 and 4 members
of the Employees' Retirement System may elect to pursuant to RSSL
sections 448, 508 and 606 contains age-based benefit reductions that
are not cost-justified. These sections provide for reductions in
benefits based on the age of the
individual at the time of entry into membership, and for additional
reductions based on the age at death (if death occurs following
attainment of age 61). Based on the Buck report findings, we have
determined that there is no cost justification for any reduction based
on age at entry to
membership, and accordingly, the restructured benefit formula removes
the existing reductions for age at membership.

These same sections of law provide for a second adjustment based on the
age of the member at the time of death. The reduction is 10% of the
benefit otherwise payable (on account of a qualifying death before
attainment of age 61) for each year by which the age at death
exceeds age 60. Reductions at this rate continue until attainment
of age 69, at which point the benefit is reduced by 90% of the amount
payable. Under the statute, the reduction may not exceed 90%.

We have determined that the statutory reduction of 10% for death at
age 61 and an additional 10% for each year between age 61 and 69 is
not cost-justified. Rather, it was determined that the
appropriate cost-justified amount of the reduction for age at death
following attainment of age 61 for most Employees' Retirement System
members is  4% for each year by which the age at death exceeds 60.
With respect to Police and Fire System members (and
Employees' Retirement System members in special plans), it has been
determined that the appropriate cost-justified amount of the
reduction for age at death is 3% for each year by which the age at
death exceeds 60. The maximum reduction, which applies when death
occurs at age 70 or thereafter, is 40% for most Employees' Retirement
System members and 30% for Police and Fire System members (and for
Employees' Retirement System members in special plans). The
restructured benefit structure reflected by this measure adopts these
cost-justified reduction


percentages. However, we note that the provisions requiring aged-based
reductions apply only to a small minority of the Tier 2 Police and
Fire System membership.

Similarly, this bill would amend provisions of the RSSL that make
age-based distinctions for disability retirement benefits available
to members of the New York State and Local Retirement System that are
impermissible under OWBPA. Under the existing provisions of sections
62 and 362, the ordinary disability benefits payable to the very few
(if any) contributory Tier 1 and 2 members of both Systems who have
attained age 60 are limited to the amount of the service retirement
benefit that would be payable to such individuals. This measure would
amend those sections to provide that the disability benefits for such
individuals shall be calculated under statutory formulas applicable
to younger applicants. Sections 506 and 507 of the RSSL, which provide
disability retirement benefits for Tier 3 members of the Employees'
Retirement System, currently provide that individuals eligible for
"normal" retirement shall not be eligible. The phrase "normal
retirement benefits" refers to benefits which are not reduced for
early retirement (prior to attainment of age 62 for most Tier 3
members; 55 for those with 30 years of credited service).
Accordingly, these sections effectively provide that individuals who
have attained age 62 (or 55, with 30 years
of credited service) are ineligible for disability retirement. This
measure would remove these limitations, and make such disability
benefits available to individuals without regard to age. Lastly, this
bill would amend section 605 of the RSSL which currently provides for
impermissible age-based reductions in the benefit calculation. Under
this measure, section 605 provides a benefit equal to one-third of
final average salary to all applicants who are permanently
incapacitated as the result of an accident.

In conclusion, this measure would bring the statutory provisions
pertaining to disability and death benefits for members of the New
York State and Local Retirement Systems into compliance with OWBPA.
Enactment of this measure would not produce any additional costs to
the State or participating employers because the changes to the
benefit structure provided herein have already been implemented in
order to comply with OWBPA, and the employer billing rates in effect
already reflect these changes. We emphasize that federal law requires
these changes, and failure to amend the technically offending
provisions of the Retirement and Social Security Law may be viewed as
a "willful violation" of federal law that possibly could result in
damages.

In view of the foregoing, the Comptroller respectfully urges enactment
of this measure.

FISCAL NOTE:
This bill would change the Retirement and Social Security Law as it
affects the New York State and Local Employees' Retirement System
(NYSLERS) and the New York State and Local Police and Fire Retirement
System (NYSLPFRS) to comply with the requirements of the Federal
Older Workers' Benefit Protection Act ("OWBPA").  Provisions relating
to disability benefits, ordinary death benefits, and post-retirement
death benefits would be modified to be consistent with the benefits
currently being paid by the Retirement Systems, as required by OWBPA.


If this bill is enacted, there will be no increase in benefits
being paid by the NYSLERS and NYSLPFRS to members or beneficiaries.
Therefore, there will be no cost if this bill is enacted.

2009-S5533A (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5533--A

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              May 14, 2009
                               ___________

Introduced  by  Sens. SAVINO, THOMPSON -- (at request of the State Comp-
  troller) -- read twice and ordered printed, and  when  printed  to  be
  committed  to the Committee on Civil Service and Pensions -- recommit-
  ted to the Committee on Civil Service and Pensions in accordance  with
  Senate  Rule  6, sec. 8 -- committee discharged, bill amended, ordered
  reprinted as amended and recommitted to said committee

AN ACT to amend the retirement and social security law, in  relation  to
  bringing  certain  provisions  of  such  law  into accordance with the
  requirements of the federal  older  workers'  benefit  protection  act
  (OWBPA)

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Declaration of legislative intent. This act is intended  to
bring  the  statutory  provisions  pertaining  to the New York state and
local employees' retirement system and the  New  York  state  and  local
police and fire retirement system into compliance with the Federal Older
Workers'  Benefit  Protection  Act, P.L. 101-433, by providing death and
disability benefits for which the cost incurred on behalf  of  an  older
member  is  no  less than that incurred on behalf of a younger member of
such systems, as permissible under section 1625.10 of Title  29  of  the
Code of Federal Regulations.
  S  2. Paragraph 1 of subdivision b of section 62 of the retirement and
social security law, as amended by chapter 1087 of the laws of 1969,  is
amended to read as follows:
  1.  If  the member has attained age sixty when such retirement becomes
effective, his OR HER retirement allowance shall be equal to that  which
he OR SHE would receive in the case of superannuation retirement, UNLESS
THE  MEMBER  IS  ENROLLED  IN  A  PLAN PROVIDED UNDER SECTION SEVENTY-A,
SEVENTY-ONE-A OR SEVENTY-FIVE OF THIS ARTICLE, IN WHICH CASE THE BENEFIT
SHALL BE CALCULATED IN THE MANNER DESCRIBED IN CLAUSE  TWO  OF  SUBPARA-
GRAPH (C) OF PARAGRAPH TWO OF THIS SUBDIVISION.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10320-04-0

S. 5533--A                          2

  S 3. Paragraph 1 of subdivision b of section 362 of the retirement and
social  security law, as amended by chapter 1087 of the laws of 1969, is
amended to read as follows:
  1.  If  a  member  has attained age sixty when such retirement becomes
effective, his OR HER retirement allowance shall be equal to that  which
he OR SHE would receive in the case of superannuation retirement, UNLESS
THE  MEMBER  IS  ENROLLED IN A PLAN PROVIDED UNDER SECTION THREE HUNDRED
SEVENTY-A, THREE HUNDRED SEVENTY-ONE-A OR THREE HUNDRED SEVENTY-FIVE  OF
THIS  ARTICLE,  IN  WHICH  CASE  THE  BENEFIT SHALL BE CALCULATED IN THE
MANNER DESCRIBED IN CLAUSE TWO OF SUBPARAGRAPH (C) OF PARAGRAPH  TWO  OF
THIS SUBDIVISION.
  S 4. Paragraph 2 of subdivision a of section 448 of the retirement and
social  security  law, as amended by chapter 559 of the laws of 2005, is
amended to read as follows:
  2. A benefit upon the death of  a  member  in  service  equal  to  the
member's  salary  upon his OR HER completion of one year of service, two
years' salary upon completion of two years of service, and three  years'
salary  upon  completion  of  three  years  of service. In the case of a
member of a retirement system other than the New  York  state  teachers'
retirement  system,  the New York city employees' retirement system, the
New York city board of education retirement system [or],  the  New  York
city  teachers'  retirement system, THE NEW YORK STATE AND LOCAL EMPLOY-
EES' RETIREMENT SYSTEM OR THE NEW YORK STATE AND LOCAL POLICE  AND  FIRE
RETIREMENT  SYSTEM, such benefit shall be subject to the following limi-
tations:
  (a) If the member last joined the retirement system prior  to  attain-
ment of age fifty-two, the maximum benefit shall be three years' salary;
  (b)  If  the  member  was age fifty-two when he OR SHE last joined the
retirement system, the maximum benefit shall be two and  one-half  times
annual salary;
  (c)  If  the member was age fifty-three when he OR SHE last joined the
retirement system, the maximum benefit shall be two years' salary;
  (d) If the member was age fifty-four when he OR SHE  last  joined  the
retirement  system,  the maximum benefit shall be one and one-half times
annual salary;
  (e) If the member was age fifty-five or older but under age sixty-five
when he OR SHE last joined the retirement system,  the  maximum  benefit
shall be one year's salary; and
  (f)  If  the  member  was  age sixty-five or older when he OR SHE last
joined the retirement system, the maximum benefit shall be one  thousand
dollars.
  In the case of a member of a retirement system other than the New York
state  teachers' retirement system, the New York city employees' retire-
ment system, the New York city  board  of  education  retirement  system
[or],  the New York city teachers' retirement system, THE NEW YORK STATE
AND LOCAL EMPLOYEES' RETIREMENT SYSTEM OR THE NEW YORK STATE  AND  LOCAL
POLICE  AND  FIRE  RETIREMENT  SYSTEM, commencing upon attainment of age
sixty-one, the benefit otherwise provided  pursuant  to  this  paragraph
shall  be  reduced  while the member is in service to ninety [percentum]
PER CENTUM of the benefit otherwise payable and each year thereafter the
benefit payable shall be reduced by an amount equal to  ten  [percentum]
PER  CENTUM  per year of the original benefit otherwise payable, but not
below ten [percentum] PER CENTUM of the original benefit otherwise paya-
ble.
  In the case of a member of the New  York  state  teachers'  retirement
system,  commencing upon attainment of age sixty-one, the benefit other-

S. 5533--A                          3

wise provided pursuant to this paragraph [two] shall  be  reduced  while
the  member is in service to ninety-six per centum of the benefit other-
wise payable and each year  thereafter  the  benefit  payable  shall  be
reduced  by  an amount equal to four per centum per year of the original
benefit otherwise payable,  but  not  below  sixty  per  centum  of  the
original  benefit  otherwise payable. In the case of a member of the New
York city employees' retirement system,  the  New  York  city  board  of
education  retirement  system  or the New York city teachers' retirement
system, commencing upon attainment of age sixty-one, the benefit  other-
wise  provided  pursuant  to  this  paragraph shall be reduced while the
member is in service to ninety-five per centum of the benefit  otherwise
payable and each year thereafter the benefit payable shall be reduced by
an  amount  equal  to  five  per centum per year of the original benefit
otherwise payable, but not below fifty per centum of the original  bene-
fit  otherwise payable.  IN THE CASE OF ANY MEMBER OF THE NEW YORK STATE
AND LOCAL EMPLOYEES' RETIREMENT SYSTEM WHO IS PERMITTED TO RETIRE  WITH-
OUT REGARD TO AGE OR A MEMBER OF THE NEW YORK STATE AND LOCAL POLICE AND
FIRE RETIREMENT SYSTEM, COMMENCING UPON ATTAINMENT OF AGE SIXTY-ONE, THE
BENEFIT  OTHERWISE  PROVIDED PURSUANT TO THIS PARAGRAPH SHALL BE REDUCED
WHILE THE MEMBER IS IN SERVICE TO NINETY-SEVEN PER CENTUM OF THE BENEFIT
OTHERWISE PAYABLE, AND EACH YEAR THEREAFTER THE BENEFIT PAYABLE SHALL BE
REDUCED BY AN AMOUNT EQUAL TO THREE PER CENTUM PER YEAR OF THE  ORIGINAL
BENEFIT  OTHERWISE  PAYABLE,  BUT  NOT  BELOW  SEVENTY PER CENTUM OF THE
ORIGINAL BENEFIT OTHERWISE PAYABLE. IN THE CASE OF ANY OTHER  MEMBER  OF
THE  NEW  YORK  STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM, COMMENCING
UPON ATTAINMENT OF AGE SIXTY-ONE, THE BENEFIT OTHERWISE PROVIDED  PURSU-
ANT TO THIS PARAGRAPH SHALL BE REDUCED WHILE THE MEMBER IS IN SERVICE TO
NINETY-SIX  PER  CENTUM  OF THE BENEFIT OTHERWISE PAYABLE, AND EACH YEAR
THEREAFTER THE BENEFIT PAYABLE SHALL BE REDUCED BY AN  AMOUNT  EQUAL  TO
FOUR  PER CENTUM PER YEAR OF THE ORIGINAL BENEFIT OTHERWISE PAYABLE, BUT
NOT BELOW SIXTY PER CENTUM OF THE ORIGINAL  BENEFIT  OTHERWISE  PAYABLE.
Upon  retirement  from any retirement system, the benefit in force shall
be reduced by fifty [percentum] PER CENTUM; upon completion of the first
year of retirement, the benefit in force at the time of retirement shall
be reduced by an additional twenty-five [percentum] PER CENTUM, and upon
commencement of the third year of retirement, the benefit shall  be  ten
[percentum]  PER CENTUM of the benefit in force at age sixty, if any, or
at the time of retirement if retirement  preceded  such  age;  provided,
however,  the  benefit  in  retirement  shall  not  be reduced below ten
[percentum] PER CENTUM of the benefit in force at age sixty, if any,  or
at  the  time  of  retirement if retirement preceded such age.  NOTWITH-
STANDING ANY OTHER PROVISION OF THIS  PARAGRAPH  TO  THE  CONTRARY,  THE
BENEFIT  FOR  A  RETIREE  FROM  THE  NEW YORK STATE AND LOCAL EMPLOYEES'
RETIREMENT SYSTEM SHALL NOT BE REDUCED BELOW TEN PER CENTUM OF THE BENE-
FIT IN FORCE AT THE TIME OF RETIREMENT.
  S 5. Subdivision a of section 506 of the retirement and social securi-
ty law, as amended by chapter 559 of the laws of  2005,  is  amended  to
read as follows:
  a. A member in active service who is not eligible for a normal retire-
ment  benefit  shall,  upon completing five years or more of service, be
eligible for the ordinary disability benefit described in subdivision  b
of  this  section  if such member has been determined to be eligible for
primary social security disability benefits; provided, however, that  no
member  of  the New York state teachers' retirement system, the New York
city employees' retirement system, the New York city board of  education
retirement system [or], the New York city teachers' retirement system OR

S. 5533--A                          4

THE  NEW YORK STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM who is other-
wise eligible for ordinary disability benefits pursuant to this  section
shall  be  deemed to be ineligible for such benefits because such member
is eligible for a normal service retirement benefit.
  S 6. Subdivision a of section 507 of the retirement and social securi-
ty  law,  as  amended  by chapter 489 of the laws of 2008, is amended to
read as follows:
  a. A member in active service, or a vested member incapacitated as the
result of a qualifying  World  Trade  Center  condition  as  defined  in
section  two  of  this chapter, who is not eligible for a normal service
retirement benefit shall be eligible for the accidental disability bene-
fit described in subdivision c of this section if such member  has  been
determined  to  be eligible for primary social security disability bene-
fits and was disabled as the natural and proximate result of an accident
sustained in such active service and not caused  by  such  member's  own
willful  negligence;  provided,  however, that no member of the New York
state teachers' retirement system, the New York city employees'  retire-
ment  system,  the  New  York  city board of education retirement system
[or], the New York city teachers' retirement  system  OR  THE  NEW  YORK
STATE  AND  LOCAL EMPLOYEES' RETIREMENT SYSTEM who is otherwise eligible
for accidental disability benefits pursuant to  this  section  shall  be
deemed  to be ineligible for such benefits because such member is eligi-
ble for a normal service retirement benefit.
  S 6-a. Subdivision c of section 507 of the retirement and social secu-
rity law, as amended by chapter 559 of the laws of 2005, is  amended  to
read as follows:
  c.  In  the case of a member of a retirement system other than THE NEW
YORK STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM, the  New  York  state
teachers'  retirement  system,  the  New York city employees' retirement
system, the New York city board of education retirement  system  or  the
New  York  city  teachers'  retirement system, the accidental disability
benefit hereunder shall be a pension equal to two percent of final aver-
age salary times years of credited service which such member would  have
attained if employment had continued until such member's full escalation
date,  not  in excess of the maximum years of service creditable for the
normal service retirement benefit, less (i) fifty percent of the primary
social security disability benefit, if any, as provided in section  five
hundred  eleven  of  this  article,  and (ii) one hundred percent of any
workers' compensation benefits payable.
  In the case of a member of THE NEW YORK  STATE  AND  LOCAL  EMPLOYEES'
RETIREMENT  SYSTEM,  the New York state teachers' retirement system, the
New York city employees' retirement system, the New York city  board  of
education  retirement  system  or the New York city teachers' retirement
system, the accidental disability benefit hereunder shall be  a  pension
equal  to  sixty percent of final average salary, less (i) fifty percent
of the primary social security disability benefit, if any,  as  provided
in  section  five  hundred  eleven of this article, and (ii) one hundred
percent of any workers' compensation benefits payable. In  the  event  a
disability  retiree  from  any retirement system is not eligible for the
primary social security disability benefit and continues to be  eligible
for  disability  benefits  hereunder,  such  disability benefit shall be
reduced by one-half of such retiree's primary social security retirement
benefit, commencing at age sixty-two, in the same manner as provided for
service retirement benefits under section five hundred  eleven  of  this
article.

S. 5533--A                          5

  S 7. Paragraph 2 of subdivision a of section 508 of the retirement and
social  security  law, as amended by chapter 559 of the laws of 2005, is
amended to read as follows:
  2.  A  benefit  upon  the  death  of  a member in service equal to the
member's salary upon his OR HER completion of one year of  service,  two
years'  salary upon completion of two years of service, and three years'
salary upon completion of three years of  service.  In  the  case  of  a
member  of  a  retirement system other than the New York state teachers'
retirement system, the New York city employees' retirement  system,  the
New  York  city  board of education retirement system [or], the New York
city teachers' retirement system,  OR  THE  NEW  YORK  STATE  AND  LOCAL
EMPLOYEES'  RETIREMENT  SYSTEM,  such  benefit  shall  be subject to the
following limitations:
  (a) If the member last joined the retirement system prior  to  attain-
ment of age fifty-two, the maximum benefit shall be three years' salary;
  (b)  If  the  member  was age fifty-two when he OR SHE last joined the
retirement system, the maximum benefit shall be two and  one-half  times
annual salary;
  (c)  If  the member was age fifty-three when he OR SHE last joined the
retirement system, the maximum benefit shall be two years' salary;
  (d) If the member was age fifty-four when he OR SHE  last  joined  the
retirement  system,  the maximum benefit shall be one and one-half times
annual salary;
  (e) If the member was age fifty-five or older but under age sixty-five
when he OR SHE last joined the retirement system,  the  maximum  benefit
shall be one year's salary; and
  (f)  If  the  member  was  age sixty-five or older when he OR SHE last
joined the retirement system, the maximum benefit shall be one  thousand
dollars.
  In the case of a member of a retirement system other than the New York
state  teachers' retirement system, the New York city employees' retire-
ment system, the New York city  board  of  education  retirement  system
[or],  the  New  York  city teachers' retirement system, OR THE NEW YORK
STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM, commencing upon attainment
of age sixty-one, the benefit otherwise provided pursuant to this  para-
graph shall be reduced while the member is in service to ninety [percen-
tum] PER CENTUM of the benefit otherwise payable and each year thereaft-
er  the  benefit  payable  shall  be  reduced  by an amount equal to ten
[percentum] PER CENTUM per year of the original benefit otherwise  paya-
ble,  but  not  below ten [percentum] PER CENTUM of the original benefit
otherwise payable.
  Notwithstanding any other provision of this paragraph, in the case  of
a  member  of the New York state teachers' retirement system, commencing
upon attainment of age sixty-one, the benefit otherwise provided  pursu-
ant to this paragraph shall be reduced while the member is in service to
ninety-six  per  centum  of the benefit otherwise payable, and each year
thereafter the benefit payable shall be reduced by an  amount  equal  to
four  per centum per year of the original benefit otherwise payable, but
not below sixty per centum of the original benefit otherwise payable. In
the case of a member of the New York city employees' retirement  system,
the  New  York city board of education retirement system or the New York
city teachers' retirement system,  commencing  upon  attainment  of  age
sixty-one,  the  benefit  otherwise  provided pursuant to this paragraph
shall be reduced while the member  is  in  service  to  ninety-five  per
centum  of  the  benefit  otherwise payable and each year thereafter the
benefit payable shall be reduced by an amount equal to five  per  centum

S. 5533--A                          6

per  year of the original benefit otherwise payable, but not below fifty
per centum of the original benefit otherwise payable.   IN THE  CASE  OF
ANY  MEMBER OF THE NEW YORK STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM
WHO  IS  PERMITTED  TO  RETIRE  WITHOUT  REGARD  TO AGE, COMMENCING UPON
ATTAINMENT OF AGE SIXTY-ONE, THE BENEFIT OTHERWISE PROVIDED PURSUANT  TO
THIS  PARAGRAPH SHALL BE REDUCED WHILE THE MEMBER IS IN SERVICE TO NINE-
TY-SEVEN PER CENTUM OF THE BENEFIT  OTHERWISE  PAYABLE,  AND  EACH  YEAR
THEREAFTER  THE  BENEFIT  PAYABLE SHALL BE REDUCED BY AN AMOUNT EQUAL TO
THREE PER CENTUM PER YEAR OF THE ORIGINAL BENEFIT OTHERWISE PAYABLE, BUT
NOT BELOW SEVENTY PER CENTUM OF THE ORIGINAL BENEFIT OTHERWISE  PAYABLE.
IN  THE CASE OF ANY OTHER MEMBER OF THE NEW YORK STATE AND LOCAL EMPLOY-
EES' RETIREMENT SYSTEM, COMMENCING UPON ATTAINMENT OF AGE SIXTY-ONE, THE
BENEFIT OTHERWISE PROVIDED PURSUANT TO THIS PARAGRAPH SHALL  BE  REDUCED
WHILE  THE  MEMBER IS IN SERVICE TO NINETY-SIX PER CENTUM OF THE BENEFIT
OTHERWISE PAYABLE, AND EACH YEAR THEREAFTER THE BENEFIT PAYABLE SHALL BE
REDUCED BY AN AMOUNT EQUAL TO FOUR PER CENTUM PER YEAR OF  THE  ORIGINAL
BENEFIT  OTHERWISE  PAYABLE,  BUT  NOT  BELOW  SIXTY  PER  CENTUM OF THE
ORIGINAL BENEFIT OTHERWISE PAYABLE. Upon retirement from any  retirement
system,  the  benefit in force shall be reduced by fifty [percentum] PER
CENTUM; upon completion of the first year of retirement, the benefit  in
force  at the time of retirement shall be reduced by an additional twen-
ty-five [percentum] PER CENTUM, and upon commencement of the third  year
of  retirement,  the  benefit shall be ten [percentum] PER CENTUM of the
benefit in force at age sixty, if any, or at the time of  retirement  if
retirement  preceded such age; provided, however, the benefit in retire-
ment shall not be reduced below ten [percentum] PER CENTUM of the  bene-
fit  in  force  at  age  sixty,  if any, or at the time of retirement if
retirement preceded such age.   NOTWITHSTANDING ANY OTHER  PROVISION  OF
THIS  PARAGRAPH  TO THE CONTRARY, THE BENEFIT FOR A RETIREE FROM THE NEW
YORK STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM SHALL NOT  BE  REDUCED
BELOW TEN PER CENTUM OF THE BENEFIT IN FORCE AT THE TIME OF RETIREMENT.
  S  8. Section 508 of the retirement and social security law is amended
by adding a new subdivision f to read as follows:
  F. WITH RESPECT TO A MEMBER OF THE NEW YORK STATE AND LOCAL EMPLOYEES'
RETIREMENT SYSTEM WHO WAS COVERED BY PARAGRAPH TWO OF SUBDIVISION  A  OF
THE FORMER SECTION FIVE HUNDRED EIGHT OF THIS CHAPTER, AS ADDED BY CHAP-
TER  EIGHT  HUNDRED  NINETY OF THE LAWS OF NINETEEN HUNDRED SEVENTY-SIX,
PRIOR TO ITS REPEAL PURSUANT TO CHAPTER SIX  HUNDRED  SEVENTEEN  OF  THE
LAWS  OF NINETEEN HUNDRED EIGHTY-SIX AND WHO IS ENTITLED UNDER THE STATE
CONSTITUTION TO HAVE BENEFITS CALCULATED UNDER SUCH PROVISION AS IT READ
PRIOR TO SUCH NINETEEN HUNDRED EIGHTY-SIX AMENDMENT, THE LUMP SUM  DEATH
BENEFIT  SHALL  BE DETERMINED PURSUANT TO SUBDIVISION A OF THIS SECTION.
WITH RESPECT TO A MEMBER OF THE NEW  YORK  STATE  AND  LOCAL  EMPLOYEES'
RETIREMENT SYSTEM WHO WAS COVERED BY SUBDIVISION B OF THE FORMER SECTION
FIVE  HUNDRED  EIGHT  OF THIS CHAPTER, AS ADDED BY CHAPTER EIGHT HUNDRED
NINETY OF THE LAWS OF NINETEEN HUNDRED SEVENTY-SIX, PRIOR TO ITS  REPEAL
PURSUANT  TO  CHAPTER  SIX  HUNDRED  SEVENTEEN  OF  THE LAWS OF NINETEEN
HUNDRED EIGHTY-SIX AND WHO IS ENTITLED UNDER THE STATE  CONSTITUTION  TO
HAVE  BENEFITS  CALCULATED UNDER SUCH PROVISION AS IT READ PRIOR TO SUCH
NINETEEN HUNDRED EIGHTY-SIX AMENDMENT, THE LUMP SUM DEATH BENEFIT  SHALL
BE DETERMINED PURSUANT TO SUBDIVISION A OF THIS SECTION.
  S 9. Subdivision d of section 605 of the retirement and social securi-
ty law is amended by adding a new paragraph 4 to read as follows:
  4.  NOTWITHSTANDING  THE  PROVISIONS  OF THIS SUBDIVISION, THE MINIMUM
BENEFIT PAYABLE TO A MEMBER OF THE NEW YORK STATE AND  LOCAL  EMPLOYEES'
RETIREMENT  SYSTEM  WHO HAS BEEN DETERMINED TO BE PHYSICALLY OR MENTALLY

S. 5533--A                          7

INCAPACITATED FOR PERFORMANCE OF GAINFUL EMPLOYMENT AS THE  NATURAL  AND
PROXIMATE  RESULT  OF  AN  ACCIDENT  NOT  CAUSED  BY  WILLFUL NEGLIGENCE
SUSTAINED IN THE PERFORMANCE OF DUTIES IN ACTIVE SERVICE WHILE  ACTUALLY
A  MEMBER  OF  THE  RETIREMENT SYSTEM SHALL BE A PENSION OF ONE-THIRD OF
SUCH MEMBER'S FINAL AVERAGE SALARY.
  S 10. Paragraph 2 of subdivision a of section 606  of  the  retirement
and  social security law, as amended by chapter 559 of the laws of 2005,
is amended to read as follows:
  2. A benefit upon the death of  a  member  in  service  equal  to  the
member's  salary  upon his OR HER completion of one year of service, two
years' salary upon completion of two years of service, and three  years'
salary  upon  completion  of  three  years  of service. In the case of a
member of a retirement system other than the New  York  state  teachers'
retirement  system,  the New York city employees' retirement system, the
New York city board of education retirement system [or],  the  New  York
city teachers' retirement system OR THE NEW YORK STATE AND LOCAL EMPLOY-
EES'  RETIREMENT  SYSTEM, such benefit shall be subject to the following
limitations:
  (a) If the member last joined the retirement system prior  to  attain-
ment of age fifty-two, the maximum benefit shall be three years' salary;
  (b)  If  the  member  was age fifty-two when he OR SHE last joined the
retirement system, the maximum benefit shall be two and  one-half  times
annual salary;
  (c)  If  the member was age fifty-three when he OR SHE last joined the
retirement system, the maximum benefit shall be two years' salary;
  (d) If the member was age fifty-four when he OR SHE  last  joined  the
retirement  system,  the maximum benefit shall be one and one-half times
annual salary;
  (e) If the member was age fifty-five or older but under age sixty-five
when he OR SHE last joined the retirement system,  the  maximum  benefit
shall be one year's salary; and
  (f)  If  the  member  was  age sixty-five or older when he OR SHE last
joined the retirement system, the maximum benefit shall be one  thousand
dollars.
  In the case of a member of a retirement system other than the New York
state  teachers' retirement system, the New York city employees' retire-
ment system, the New York city  board  of  education  retirement  system
[or],  the  New  York  city  teachers' retirement system OR THE NEW YORK
STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM, commencing upon attainment
of age sixty-one, the benefit otherwise provided pursuant to this  para-
graph shall be reduced while the member is in service to ninety [percen-
tum] PER CENTUM of the benefit otherwise payable and each year thereaft-
er  the  benefit  payable  shall  be  reduced  by an amount equal to ten
[percentum] PER CENTUM per year of the original benefit otherwise  paya-
ble,  but  not  below ten [percentum] PER CENTUM of the original benefit
otherwise payable.
  In the case of a member of the New  York  state  teachers'  retirement
system,  commencing upon attainment of age sixty-one, the benefit other-
wise provided pursuant to this paragraph  shall  be  reduced  while  the
member  is  in service to ninety-six per centum of the benefit otherwise
payable, and each year thereafter the benefit payable shall  be  reduced
by  an  amount equal to four per centum per year of the original benefit
otherwise payable, but not below sixty per centum of the original  bene-
fit  otherwise  payable.  In  the  case of a member of the New York city
employees' retirement system, the  New  York  city  board  of  education
retirement  system  or  the  New  York city teachers' retirement system,

S. 5533--A                          8

commencing upon attainment  of  age  sixty-one,  the  benefit  otherwise
provided pursuant to this paragraph shall be reduced while the member is
in  service  to  ninety-five per centum of the benefit otherwise payable
and  each  year  thereafter  the  benefit payable shall be reduced by an
amount equal to five per centum per year of the original benefit  other-
wise  payable,  but  not  below fifty per centum of the original benefit
otherwise payable.  IN THE CASE OF ANY MEMBER OF THE NEW YORK STATE  AND
LOCAL  EMPLOYEES'  RETIREMENT  SYSTEM WHO IS PERMITTED TO RETIRE WITHOUT
REGARD TO AGE, COMMENCING UPON ATTAINMENT OF AGE SIXTY-ONE, THE  BENEFIT
OTHERWISE PROVIDED PURSUANT TO THIS PARAGRAPH SHALL BE REDUCED WHILE THE
MEMBER IS IN SERVICE TO NINETY-SEVEN PER CENTUM OF THE BENEFIT OTHERWISE
PAYABLE,  AND  EACH YEAR THEREAFTER THE BENEFIT PAYABLE SHALL BE REDUCED
BY AN AMOUNT EQUAL TO THREE PER CENTUM PER YEAR OF THE ORIGINAL  BENEFIT
OTHERWISE  PAYABLE,  BUT  NOT  BELOW  SEVENTY PER CENTUM OF THE ORIGINAL
BENEFIT OTHERWISE PAYABLE. IN THE CASE OF ANY OTHER MEMBER  OF  THE  NEW
YORK  STATE  AND  LOCAL  EMPLOYEES'  RETIREMENT  SYSTEM, COMMENCING UPON
ATTAINMENT OF AGE SIXTY-ONE, THE BENEFIT OTHERWISE PROVIDED PURSUANT  TO
THIS  PARAGRAPH SHALL BE REDUCED WHILE THE MEMBER IS IN SERVICE TO NINE-
TY-SIX PER CENTUM OF THE BENEFIT OTHERWISE PAYABLE, AND EACH YEAR THERE-
AFTER THE BENEFIT PAYABLE SHALL BE REDUCED BY AN AMOUNT  EQUAL  TO  FOUR
PER  CENTUM  PER YEAR OF THE ORIGINAL BENEFIT OTHERWISE PAYABLE, BUT NOT
BELOW SIXTY PER CENTUM OF THE ORIGINAL BENEFIT OTHERWISE  PAYABLE.  Upon
retirement,  from  any  retirement system, the benefit in force shall be
reduced by fifty [percentum] PER CENTUM; upon completion  of  the  first
year of retirement, the benefit in force at the time of retirement shall
be reduced by an additional twenty-five [percentum] PER CENTUM, and upon
commencement  of  the third year of retirement, the benefit shall be ten
[percentum] PER CENTUM of the benefit in force at age sixty, if any,  or
at  the  time  of  retirement if retirement preceded such age; provided,
however, the benefit in  retirement  shall  not  be  reduced  below  ten
[percentum]  PER CENTUM of the benefit in force at age sixty, if any, or
at the time of retirement if retirement preceded  such  age.    NOTWITH-
STANDING  ANY  OTHER  PROVISION  OF  THIS PARAGRAPH TO THE CONTRARY, THE
BENEFIT FOR A RETIREE FROM THE  NEW  YORK  STATE  AND  LOCAL  EMPLOYEES'
RETIREMENT SYSTEM SHALL NOT BE REDUCED BELOW TEN PER CENTUM OF THE BENE-
FIT IN FORCE AT THE TIME OF RETIREMENT.
  S  11.  This  act shall take effect immediately and shall be deemed to
have been in full force and  effect  on  and  after  October  16,  1992,
provided,  however, that: (i) this act shall not apply to any payment of
benefits which became payable  prior  to  October  16,  1992;  and  (ii)
sections  seven and eight of this act shall be effective if and, in such
case, only to the extent section 1 of chapter 617 of the laws of 1986 is
unconstitutional insofar as it abrogates the rights pursuant to  section
508  of  the retirement and social security law as added by section 1 of
chapter 890 of the laws of 1976, of public employees who became  members
of the New York state and local employees' retirement system on or after
July 27, 1976 and before September 1, 1983.
  FISCAL NOTE.--Pursuant to Legislative Law, Section 50:
  This  bill  would  change the Retirement and Social Security Law as it
affects the New  York  State  and  Local  Employees'  Retirement  System
(NYSLERS)  and  the  New York State and Local Police and Fire Retirement
System (NYSLPFRS) to comply with the requirements of the  Federal  Older
Workers'  Benefit Protection Act ("OWBPA"). Provisions relating to disa-
bility benefits, ordinary  death  benefits,  and  post-retirement  death
benefits  would be modified to be consistent with the benefits currently
being paid by the Retirement Systems, as required by OWBPA.

S. 5533--A                          9

  If this bill is enacted, there will be no increase in  benefits  being
paid by the NYSLERS and NYSLPFRS to members or beneficiaries. Therefore,
there will be no cost if this bill is enacted.
  This  estimate,  dated  January  29,  2010,  and intended for use only
during the  2010  Legislative  Session,  is  Fiscal  Note  No.  2010-111
prepared by the Actuary for the New York State and Local Police and Fire
Retirement System and the New York State and Local Employees' Retirement
System.

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Senate Bill S5533

Signed By Governor

Sponsored By

Archive: Last Bill Status - Signed by Governor

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Votes

May 12, 2010 - Floor Vote

Floor Vote: May 12, 2010

Apr 27, 2010 - Civil Service And Pensions Committee Vote

Civil Service And Pensions Committee Vote: Apr 27, 2010

Bill Amendments

co-Sponsors

2009-S5533 - Details

2009-S5533 - Summary

2009-S5533 - Sponsor Memo

2009-S5533 - Bill Text download pdf

co-Sponsors

2009-S5533A (ACTIVE) - Details

2009-S5533A (ACTIVE) - Summary

2009-S5533A (ACTIVE) - Sponsor Memo

2009-S5533A (ACTIVE) - Bill Text download pdf

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Senate Bill S5533

Signed By Governor

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Sponsored By

Diane J. Savino

Archive: Last Bill Status - Signed by Governor

Actions

Votes

Bill Amendments

co-Sponsors

Antoine M. Thompson

2009-S5533 - Details

2009-S5533 - Summary

2009-S5533 - Sponsor Memo

2009-S5533 - Bill Text download pdf

co-Sponsors

Antoine M. Thompson

2009-S5533A (ACTIVE) - Details

2009-S5533A (ACTIVE) - Summary

2009-S5533A (ACTIVE) - Sponsor Memo

2009-S5533A (ACTIVE) - Bill Text download pdf

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