2023 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.