S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9998
 
                           I N  A S S E M B L Y
 
                              April 29, 2022
                                ___________
 
 Introduced by M. of A. FITZPATRICK, TAGUE -- Multi-Sponsored by -- M. of
   A.  MANKTELOW  --  read  once and referred to the Committee on Govern-
   mental Employees
 
 AN ACT to amend the civil service law, in relation to improper  employer
   practices  relating  to  the  continuation of pay, vacation and health
   care benefits; to amend the education law,  in  relation  to  eligible
   employees for retirement plans; and to amend the civil service law, in
   relation to disputed agreements
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Paragraph (e) of subdivision 1  of  section  209-a  of  the
 civil  service  law,  as  amended by chapter 244 of the laws of 2007, is
 amended to read as follows:
   (e) to refuse to continue [all the] terms of an expired agreement THAT
 RELATE TO LEAVES OF ABSENCE, ACTIVE EMPLOYEES  HEALTH  INSURANCE,  HOLI-
 DAYS,  SALARIES  EXCLUDING  STEP  INCREASES,  AND  ALL  OTHER  MANDATORY
 SUBJECTS OF A BARGAINING AGREEMENT AS DEFINED BY THE  PUBLIC  EMPLOYMENT
 RELATIONS  BOARD  CASE  LAW PRIOR TO ITS CONVERSION DOCTRINE until a new
 agreement is negotiated, unless the employee  organization  which  is  a
 party  to  such agreement has, during such negotiations or prior to such
 resolution of such negotiations, engaged in conduct violative of  subdi-
 vision one of section two hundred ten of this article;
   §  2. Subdivision 3-a of section 390 of the education law, as added by
 chapter 18 of the laws of 2012, is amended to read as follows:
   3-a. (A) Beginning July first, two thousand thirteen, the term "eligi-
 ble employees" shall also mean any person excluded from  or  not  encom-
 passed  within a negotiating unit within the meaning of article fourteen
 of the civil service law who would otherwise be entitled  to  receive  a
 benefit  under  the  retirement and social security law or the education
 law initially hired on or after July first, two thousand  thirteen  with
 estimated  annual  wages  of seventy-five thousand per annum or greater.
 Such estimate of annual wages to determine eligibility for the  purposes
 of  this subdivision shall be provided by the employer. For the purposes
 of this subdivision,  a  newly  hired  state  employee  whose  immediate
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

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 A. 9998                             2
 
 preceding employment was with another department, division, or agency of
 the state shall not be deemed to be an eligible employee.
   (B) BEGINNING JANUARY FIRST, TWO THOUSAND TWENTY-TWO, THE TERM "ELIGI-
 BLE  EMPLOYEES"  SHALL ALSO MEAN ANY PERSON WHO WOULD OTHERWISE BE ENTI-
 TLED TO RECEIVE A BENEFIT UNDER THE RETIREMENT AND SOCIAL  SECURITY  LAW
 OR  THE  EDUCATION  LAW  INITIALLY  HIRED ON OR AFTER JANUARY FIRST, TWO
 THOUSAND TWENTY-TWO WHO WOULD OTHERWISE BE ELIGIBLE  FOR  MEMBERSHIP  IN
 THE  NEW  YORK  STATE  AND LOCAL EMPLOYEES' RETIREMENT SYSTEM OR THE NEW
 YORK STATE TEACHERS' RETIREMENT SYSTEM. FOR THE PURPOSE  OF  THIS  PARA-
 GRAPH,  A NEWLY HIRED STATE EMPLOYEE WHOSE PRIOR EMPLOYMENT, IMMEDIATELY
 PRECEDING SUCH STATE EMPLOYMENT, WAS WITH ANOTHER DEPARTMENT,  DIVISION,
 OR AGENCY OF THE STATE SHALL NOT BE DEEMED TO BE AN ELIGIBLE EMPLOYEE.
   §  3.  Section 209 of the civil service law is amended by adding a new
 subdivision 7 to read as follows:
   7.  NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO  THE  CONTRARY,  FOR
 ANY  DISPUTE  THAT  IS  SUBJECT  TO  THE PROVISIONS OF THIS SECTION, THE
 DETERMINATION OF THE PUBLIC ARBITRATION PANEL ON  A  DISPUTED  AGREEMENT
 SHALL NOT CONTAIN AN INCREASE IN ALL COMPENSATION ITEMS SUBJECT TO NEGO-
 TIATION  WHICH  IS  GREATER  THAN TWO PERCENT MORE THAN ALL COMPENSATION
 ITEMS SUBJECT TO NEGOTIATION RECEIVED BY THE  EMPLOYEE  ORGANIZATION  IN
 THE  AGREEMENT BETWEEN THE PUBLIC EMPLOYER AND THE EMPLOYEE ORGANIZATION
 IMMEDIATELY PRECEDING THE AGREEMENT BEING ARBITRATED.
   § 4. This act shall take effect immediately.
   FISCAL NOTE.--Pursuant to Legislative Law, Section 50:
   This bill would amend Section 390 of the Education Law to broaden  the
 definition of the term "eligible employees" as it applies to eligibility
 to  join  the  State  University of New York Optional Retirement Program
 (ORP), otherwise known as the  Voluntary  Defined  Contribution  Program
 (VDC).  The definition would be expanded to include any person initially
 hired on or after January 1, 2022 who would otherwise  be  eligible  for
 membership in the New York State Teachers' Retirement System (NYSTRS) or
 the  New York State and Local Retirement System (NYSLRS). Currently only
 new employees with an annual salary of $75,000 or more and who  are  not
 represented  by a collective bargaining unit must choose between joining
 the public retirement system (NYSTRS, NYSLRS) or the  ORP/VDC.  A  newly
 hired  state employee whose prior employment, immediately preceding such
 state employment, was with another department, division,  or  agency  of
 the state shall not be deemed to be an eligible employee.
   It is not possible to determine the total annual cost to the employers
 of  members  of the New York State Teachers' Retirement System since the
 number of newly hired employees who would choose to participate  in  the
 ORP/VDC  each year cannot be estimated. This bill represents a fundamen-
 tal change in the structure of  public  retirement  benefits  and  would
 substantially  impact  their  funding. The number of new entrants to the
 System could potentially decline each year if some newly hired employees
 opt to participate in the ORP/VDC. The  System's  outstanding  liability
 under the defined benefit plan is funded over the average future remain-
 ing  working  lifetime of its members. Thus, if the System experiences a
 large decline in the number of new  entrants  each  year,  this  funding
 period  would  decrease,  resulting  in  potentially increasing costs to
 employers. It is strongly recommended that a full actuarial analysis and
 report be completed to gauge all the potential  costs  and  implications
 fully  and more quantitatively before a structural change of this magni-
 tude is undertaken.
   Member data is from  the  System's  most  recent  actuarial  valuation
 files,  consisting  of  data provided by the employers to the Retirement
 A. 9998                             3
 
 System. Data distributions and statistics can be found in  the  System's
 Annual  Report.  System assets are as reported in the System's financial
 statements and can also be found in the System's Annual Report.  Actuar-
 ial assumptions and methods are provided in the System's Actuarial Valu-
 ation Report and the 2021 Actuarial Assumptions Report.
   The  source  of  this  estimate is Fiscal Note 2022-21 dated April 12,
 2022 prepared by the Office of the Actuary of the New York State  Teach-
 ers'  Retirement  System  and  is  intended for use only during the 2022
 Legislative Session. I, Richard A.  Young, am the Chief Actuary for  the
 New  York State Teachers' Retirement System. I am a member of the Ameri-
 can Academy of Actuaries and I meet the Qualification Standards  of  the
 American  Academy of Actuaries to render the actuarial opinion contained
 herein.