S T A T E O F N E W Y O R K
________________________________________________________________________
4337
2015-2016 Regular Sessions
I N A S S E M B L Y
January 30, 2015
___________
Introduced by M. of A. DenDEKKER, ROBINSON, BENEDETTO, MOSLEY, CRESPO,
STECK, COOK, MARKEY, HOOPER, BROOK-KRASNY -- Multi-Sponsored by -- M.
of A. ARROYO, GRAF, ROBERTS -- read once and referred to the Committee
on Governmental Employees
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,
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08013-01-5
A. 4337 2
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
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 18 of the laws of 2012, 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
A. 4337 3
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 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 successive 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.