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

                                  6536

                            I N  S E N A T E

                            January 22, 2016
                               ___________

Introduced  by  Sen.  AVELLA -- 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
  including  mandatory  overtime  in  a member's final average salary or
  wages

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

  Section  1. Section 1203 of the retirement and social security law, as
added by section 1 of part A of chapter 504 of  the  laws  of  2009,  is
amended to read as follows:
  S  1203. Overtime. A member's final average salary shall be calculated
in accordance with such provisions of article eight or article eleven of
this chapter as govern the member's benefits, except that earnings clas-
sified as overtime compensation  in  an  amount  in  excess  of  fifteen
percent  of  a  member's annual wages not classified as overtime compen-
sation shall be excluded from such calculation, PROVIDED,  HOWEVER,  ANY
OVERTIME  EARNED  WHICH IS MANDATORY OVERTIME, AS DEFINED BY SECTION TWO
OF THIS CHAPTER, SHALL NOT BE EXCLUDED.   "Overtime compensation"  shall
mean,  for  purposes of this section, compensation paid under any law or
policy under which employees are paid at a rate greater than their stan-
dard rate for additional hours worked beyond those  required,  including
compensation  paid  under  section  one hundred thirty-four of the civil
service law and section ninety of the general municipal law.
  S 2. Subdivision 24 of section 501 of the retirement and social  secu-
rity  law,  as  amended by chapter 18 of the laws of 2012, is amended to
read as follows:
  24. "Wages" shall mean regular compensation earned by and  paid  to  a
member  by a public employer, except that for members who first join the
state and local employees' retirement system on or after January  first,
two  thousand  ten,  overtime compensation paid in any year in excess of
the overtime ceiling, as defined  by  this  subdivision,  shall  not  be
included  in  the definition of wages, PROVIDED, HOWEVER, THAT ANY OVER-
TIME COMPENSATION EARNED WHICH IS  MANDATORY  OVERTIME,  AS  DEFINED  BY
SECTION  TWO  OF  THIS  CHAPTER,  SHALL BE INCLUDED IN THE DEFINITION OF

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

                                                           LBD08013-02-6

S. 6536                             2

WAGES.   "Overtime  compensation"  shall  mean,  for  purposes  of  this
section, compensation paid under any law or policy under which employees
are paid at a rate greater than their standard rate for additional hours
worked  beyond those required, including compensation paid under section
one hundred thirty-four of the civil service law and section  ninety  of
the  general  municipal  law.  The "overtime ceiling" shall mean fifteen
thousand dollars per annum on January first, two thousand ten, and shall
be increased by three percent each year thereafter,  provided,  however,
that  for  members  who  first  become members of the New York state and
local employees' retirement system on or after April first, two thousand
twelve, "overtime ceiling" shall mean fifteen thousand dollars per annum
on April first, two thousand twelve, and shall be  increased  each  year
thereafter by a percentage to be determined annually by reference to the
consumer price index (all urban consumers, CPI-U, U.S. city average, all
items,  1982-84=100),  published  by  the  United States bureau of labor
statistics, for each applicable calendar  year.  Said  percentage  shall
equal  the  annual  inflation  as  determined  from  the increase in the
consumer price index in the one year period ending on the December thir-
ty-first prior to the cost-of-living adjustment effective on the ensuing
April first.  For the purpose of calculation a member's primary  federal
social  security  retirement  or disability benefit, wages shall, in any
calendar year, be limited to the portion of  the  member's  wages  which
would  be  subject to tax under section three thousand one hundred twen-
ty-one of the internal revenue code of nineteen hundred  fifty-four,  or
any  predecessor or successor provision relating thereto, if such member
was employed by a private employer. For members who first become members
of the New York state and local employees' retirement system on or after
the effective date of the chapter of the laws  of  two  thousand  twelve
which  amended  this  subdivision,  the  following  items  shall  not be
included in the definition of wages: (a) wages in excess of  the  annual
salary paid to the governor pursuant to section three of article four of
the state constitution, (b) lump sum payments for deferred compensation,
sick  leave,  accumulated vacation or other credits for time not worked,
(c) any form of termination pay, (d) any additional compensation paid in
anticipation of retirement, and (e) in the case of employees who receive
wages from three or more employers in a twelve month period,  the  wages
paid by the third and each successive employer.
  S 3. Subdivision 1 of section 601 of the retirement and social securi-
ty  law,  as  amended  by chapter 510 of the laws of 2015, is amended to
read as follows:
  l. "Wages" shall mean regular compensation earned by  and  paid  to  a
member  by a public employer, except that for members who first join the
New York state and local employees' retirement system or  the  New  York
state  teachers'  retirement system on or after January first, two thou-
sand ten, overtime compensation paid in any year in excess of the  over-
time  ceiling,  as defined by this subdivision, shall not be included in
the definition of wages, PROVIDED, HOWEVER, THAT  ANY  OVERTIME  COMPEN-
SATION  EARNED WHICH IS MANDATORY OVERTIME, AS DEFINED BY SECTION TWO OF
THIS CHAPTER, SHALL BE INCLUDED IN THE DEFINITION  OF  WAGES.  "Overtime
compensation"  shall  mean,  for  purposes of this section, compensation
paid under any law or policy under which employees are paid  at  a  rate
greater  than  their  standard  rate  for additional hours worked beyond
those required, including compensation paid under  section  one  hundred
thirty-four  of  the civil service law and section ninety of the general
municipal law.  The  "overtime  ceiling"  shall  mean  fifteen  thousand
dollars  per  annum  on  January  first,  two thousand ten, and shall be

S. 6536                             3

increased by three per cent each  year  thereafter,  provided,  however,
that  for members who first become members of a public retirement system
of the state on or after April first,  two  thousand  twelve,  "overtime
ceiling"  shall  mean fifteen thousand dollars per annum on April first,
two thousand twelve, and shall be increased each year  thereafter  by  a
percentage  to be determined annually by reference to the consumer price
index (all  urban  consumers,  CPI-U,  U.S.  city  average,  all  items,
1982-84=100), published by the United States bureau of labor statistics,
for each applicable calendar year. Said percentage shall equal the annu-
al inflation as determined from the increase in the consumer price index
in  the one year period ending on the December thirty-first prior to the
cost-of-living adjustment effective on  the  ensuing  April  first.  For
members  who  first  join  a public retirement system of the state on or
after April first, two thousand twelve, the following items shall not be
included in the definition of wages: 1. wages in excess  of  the  annual
salary paid to the governor pursuant to section three of article four of
the  state constitution, 2. lump sum payments for deferred compensation,
sick leave, accumulated vacation or other credits for time  not  worked,
3.  any  form of termination pay, 4. any additional compensation paid in
anticipation of retirement, and 5. in the case of employees who  receive
wages  from  three or more employers in a twelve month period, the wages
paid by the third and each additional employer.
  S 4. Section 2 of the retirement and social security law is amended by
adding a new subdivision 37 to read as follows:
  37. "MANDATORY OVERTIME." INVOLUNTARY OVERTIME  REQUIRED  PURSUANT  TO
ANY LAW, RULE OR REGULATION.
  S 5. This act shall take effect immediately.