NY Ret & SS L § 803 (2021)
2021 New York Laws RSS - Retirement and Social Security Article 18 - Provisions Generally Applicable to Public Retirement Systems 803 - Retroactive Membership.

§  803.  Retroactive  membership.  a. A public retirement system shall have the authority to grant relief from a failure to file an application for membership in that system in connection with service rendered  prior to  April  first,  nineteen  hundred ninety-three in accordance with the provisions of this section. If the determination is  made  by  a  public retirement system other than the public retirement system of which he or she  is  a  member,  such other system shall notify the member's current system of its determination and  the  retroactive  membership  resulting from  such  determination  shall  be  deemed  to  have  been immediately transferred to the member's current system. In such event, the  member's current  system  shall  advise  such other system of the additional cost resulting  from  such  relief,  which  shall  thereupon  be  billed  and collected  by  such  other  system  and remitted to the member's current system.   b. Retroactive membership shall be granted to a  member  of  a  public retirement  system  who  was entitled to join a public retirement system prior to the date on which the member  actually  joined  such  a  system provided that:  (1) the member files a written request for retroactive membership in a public  retirement  system  with  the member's current retirement system within three years of the effective date of this article, or within  two years  of  the  enactment  of  a local law by the city of New York for a member who: (i) is an employee of the city of New York; or (ii)  is  not an  employee of the city of New York, but has prior employment with such city, which without  the  transfer  and  crediting  provisions  of  this article  would  render  him or her ineligible for retroactive membership under the provisions of this section;  (2) membership shall only be granted retroactively back  to  the  date from which the member has served continuously in a position or positions which would have entitled the member to join a public retirement system. For  the  purpose  of this paragraph (and subdivision b of section eight hundred one of this article), a  member  shall  be  considered  to  have served  continuously  from the earliest date after which he or she shall have rendered at least twenty days of eligible service during each  plan year of such public retirement system, excluding one break in service of not  more  than  one plan year or not more than two plan years when such break in service is attributable to the birth of a child of  the  member or  care  for such child or the placement of a child with the member for adoption or foster care, provided that for the limited purposes of  this section  only,  no  employment  with  the city of New York, the board of education  of  the  city  of  New  York  or  with  any  employer   which participates  in  the  New York city employees' retirement system or the New York city board of education retirement system shall be deemed to be service which would have entitled the member to join a public retirement system, or shall be deemed to be  retirement  system  eligible  service, where  the  person rendering such service would have been deemed by such retirement  system  prior  to   May   thirty-first,   nineteen   hundred eighty-eight  to  be ineligible for membership in such retirement system because he or she was not  regularly  scheduled  to  work  a  sufficient number  of hours per year, or because such employment was being rendered not on a per annum basis, but rather on a per hour  basis,  a  per  diem basis or some other basis; and  (3)  the  employer  who employed such member at the time he or she was first eligible to  join  a  public  retirement  system  files  with  the retirement  system  an  affidavit  stating  that  the  relief  sought is appropriate because the member did not (i) expressly decline  membership in  a  form  filed  with  the  employer; (ii) participate in a procedure explaining the option to join the system in which  a  form,  booklet  or  other  written  material  is  read  from, explained or distributed, such form, booklet or written material can be produced and documentation or a notation to the effect that he or she so participated exists;  or  (iii) participate  in  a procedure that a reasonable person would recognize as an explanation or request requiring a formal decision by him or  her  to join a public retirement system. Such affidavit shall also set forth the facts and circumstances giving rise to the request for relief, including but not necessarily limited to dates of employment and the date on which the  member  was  first  eligible to join a public retirement system and salary information. The employer shall respond to all requests for  such affidavits by a public retirement system. A member seeking to prove that he or she did not participate in a procedure described in clause (ii) or (iii)  hereof  must  do  so  by  substantial evidence. An employer shall establish a review process which shall afford a member an opportunity to appear in person or in writing. If a determination has been made to deny retroactive  membership,  the  employer  shall  produce   an   affidavit including  a  statement  of  the grounds on which such denial was based. Nothing herein is intended to require  a  public  retirement  system  to conduct  a  hearing  if  one  is  not  customarily held by the system to determine pension rights, privileges or benefits.   c. If a member is entitled to relief pursuant  to  this  section,  the public   retirement   system   shall  determine  the  member's  date  of membership, which shall be the date on  which  such  member  would  have become  a  member of such retirement system pursuant to subdivision b of this section.   d. Nothing in this section shall be construed to change or modify  the requirements  for filing an application for membership prescribed by the head of the retirement system or by applicable  law  or  to  modify  the obligations of employers or any public retirement system with respect to informing employees of their right to join a public retirement system or with respect to transmitting their application to such a system.   e.  (1)  The entire cost of retroactive membership granted pursuant to this section shall be paid by the employer who employed such  member  at the  time  he  or  she  was  first  eligible to join a public retirement system, subject to the limitations provided in  paragraph  two  of  this subdivision. For the purposes of this section, the additional cost shall be  the  increase in the accrued liabilities resulting from relief under this section. At the employer's election, the additional cost to be paid by it may be paid with interest equal  to  the  valuation  rate  of  the member's  current  system  in equal annual installments over a period of either five or ten years.  (2) In the case of an individual who on March  thirty-first,  nineteen hundred  ninety-three  was  a member of any public retirement system and who, on such date, was employed by an employer other than  the  employer which  employed  such member at the time he or she was first eligible to join a public retirement system, costs to such original  employer  shall not  exceed  a  percentage  of  the  total cost but not greater than one hundred percent of such cost; (a) such percentage to  be  determined  in the  case  of  the New York state and local employees' retirement system and the New York state and local police and fire  retirement  system  by dividing the greater of the amounts calculated under subparagraph (i) or (ii)  of  this  paragraph by the salary used for calculating costs under paragraph one of this subdivision:  (i)  the  annual  compensation  such member  would  have earned during the salary period used for calculating costs under this subdivision had such member remained  in  the  original position,  as  determined  by applying annual increases of seven percent from the time of such original twelve month  period  to  the  amount  of annual  compensation  such  member  was  actually  paid by such employer  during the  first  twelve  months  of  employment  or  (ii)  the  amount determined  by  applying annual increases of seven percent to the amount an individual employed on a full-time basis at the then applicable state minimum wage would have earned during such twelve month period; (b) such percentage in the case of the New York state teachers' retirement system to  be  determined  by dividing by the member's annualized salary in the year in which the cost  under  paragraph  one  of  this  subdivision  is determined, by the following: the member's annualized salary in the plan year  in which the member was first eligible to join a public retirement system increased by seven percent per year for each year from  the  plan year  in which the member was first eligible to join a public retirement system to the plan year in which such cost is determined.   f.  Notwithstanding  any  other  provision  of  this  section  to  the contrary,  this  section  shall  not  apply to any person who received a retroactive membership date pursuant to the provisions  of  chapter  one thousand  forty-four of the laws of nineteen hundred eighty-one, chapter five hundred thirty-nine of the laws of  nineteen  hundred  eighty-four, chapter  five  hundred  twenty-two  of  the  laws  of  nineteen  hundred eighty-eight or  chapter  five  hundred  twenty-three  of  the  laws  of nineteen hundred eighty-eight.   g.  A  member  receiving  a  retroactive  membership  date pursuant to subdivision b of this section shall pay to his or her current retirement system those payments, with applicable  interest  thereon,  which  would have  been  made  by  such  member  had  he or she been a member of such retirement system during the period of service beginning from  the  date which is being credited pursuant to such subdivision b. For members of a retirement  system  or  pension fund maintained by the city of New York, the granting of any service credit pursuant to this section (1) shall be used only for the purpose of determining the amount of any  benefit  and not  for  the  purpose  of determining eligibility for a benefit and (2) shall not be deemed or construed to create any right for the payment  of a  pension-providing-for-increased-take-home-pay  for  such period or to create any liability or responsibility for the funding of  such  benefit by  the  city  of New York or any other pension obligor or to create any liability   or   responsibility    for    the    accumulation    of    a reserve-for-increased-take-home-pay.   h.  Anything  in  this  section  to  the contrary notwithstanding, any member of a public retirement system who, prior to reinstatement  to  an original  date  of  membership  prior to the twenty-seventh day of July, nineteen hundred seventy-six under section  six  hundred  forty-five  of this  chapter,  is  required to pay mandatory arrears under this section and still has an amount due, shall, upon application to the  comptroller under  the  provisions of section six hundred forty-five of this chapter for reinstatement under such section six hundred  forty-five,  and  upon conveying  in  writing to the comptroller a rescission of their election under this section, thereafter not be required to pay mandatory  arrears under  this  section  provided  that  payments  previously made for such arrears shall not be refunded to such member. When a  member  elects  to rescind  benefits  pursuant  to this section and makes application under section six hundred forty-five of this chapter as permitted  under  this subdivision, such member's reinstated rights, benefits and status in the public  retirement system will derive and be defined by such section six hundred forty-five rather than this section.