S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1457
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              January 9, 2017
                                ___________
 
 Introduced  by  Sens. AVELLA, COMRIE, STAVISKY -- 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:
   § 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.
   §  2. Subdivision 24 of section 501 of the retirement and social secu-
 rity law, as amended by chapter 298 of the laws of 2016, 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD01198-01-7

 S. 1457                             2
 
 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 thou-
 sand 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  chapter  eighteen  of the laws of two thousand
 twelve, 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 termi-
 nation 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.  For New York city enhanced plan
 members who receive the ordinary  disability  benefit  provided  for  in
 subdivision c-1 of section five hundred six of this article or the acci-
 dental disability benefit provided for in paragraph three of subdivision
 c  of  section  five  hundred seven of this article, the following items
 shall not be included in the definition of wages: (a) lump sum  payments
 for  deferred  compensation,  sick  leave, accumulated vacation or other
 credits for time not worked, (b) any form of termination  pay,  (c)  any
 additional  compensation  paid in anticipation of retirement, and (d) 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.
   § 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:

 S. 1457                             3
 
   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
 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.
   § 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.
   § 5. This act shall take effect immediately.