Working After Retirement
Section 150 of the Civil Service Law provides, in pertinent part, that a retiree's pension shall be suspended during periods of reemployment in the public sector. Post retirement earnings from public sector employment are regulated by Sections 211 and 212 of the New York State Retirement and Social Security Law. Sections 211 and 212 of the Retirement and Social Security Law provides for the reemployment of a retiree without loss or diminution of pension.
Public sector employment is employment with New York State, or a county, city, town, village, school district, public authority or public benefit corporation in New York State. Included is teaching service in a public elementary or secondary school or BOCES and any part of the SUNY or CUNY Systems. Also included is employment with the City of New York.
A person employed under either Section 211 or 212 may continue to receive his or her retirement allowance. Post retirement employment on this basis will not provide any additional retirement benefits.
Earnings from public employment which exceed the Section 212 limit and for which Section 211 approval is not granted will result in the suspension of the person's retirement allowance during the period of that employment.
Disability Retirees are not eligible for employment under Sections 211 or 212.
If the retiree has not attained the age 65 nor has reached the calendar year in which they turn 65, and his/her annual earnings will exceed the annual earning limitation established in Section 212 ($30,000 for 2008), the employer may apply to the appropriate authority for permission to employ the retiree under the provisions of Section 211. The only impact of the approval to employ a retiree under Section 211 is that the retiree may be employed for up to a two year period and continue to receive his/her pension benefit. Failure to gain approval would result in the retiree having to either suspend his/her pension, rejoin the retirement system or restrict his/her earnings to less than $30,000.
The retiree's prospective employer must request approval for employment of the retiree under Section 211 from the appropriate authorizing agency for the retiree to receive his/her pension while still working. Usually, that authorizing agency is the New York State Civil Service Commission. However, depending on where the retiree is employed, one of the agencies listed below may be the appropriate authorizing agency to grant this approval:
- The Commissioner of Education
- The Chancellor of the State University of New York
- The Chancellor of the New York City Department of Education
- New York City Department of Citywide Administrative Services
- The Chief Administrator of the Unified Court System
If a request to employ a retiree under Section 211 is approved and the employer is not the same employer from which the person retired, the allowable earnings would be unlimited.
If a request to employ a retiree under Section 211 waiver is approved and the service is with the same employer from which the person retired, the post retirement earnings will be limited by the formula contained in Section 211 (1)(a). The retiree's Retirement System will calculate the earnings limitations. Any questions regarding the calculation of earning limitations should be referred to the retiree's Retirement System.
Section 211 of the RSSL authorizes the State CSC to grant waivers (211 waivers), under certain circumstances, to allow public service retirees to accept government employment and earn compensation in excess of the statutory cap in RSSL section 212, without the suspension of pension benefits earned through prior service. This law was recently amended by Chapter 640 of the Laws of 2008 (Chapter 640), effective October 7, 2008, to clarify the requirements that must be met before a public employer may hire an individual who continues to receive a New York public pension. The Commission recently issued guidelines governing the waiver process.
Generally, Chapter 640 has a grandfather clause to ensure that agencies employing retirees under 211 waivers will not face extensive turnover of their experienced employees. To avoid such turnover, the amendments to RSSL section 211 in Chapter 640 provide that they "shall not apply to individuals to whom waivers were granted prior to the effective date of this act." Accordingly, any application of a prospective employer to hire or continue to employ a retiree who was employed under a waiver prior to October 7, 2008, will be evaluated under the RSSL standards in effect prior to Chapter 640, the pre-October 7, 2008 statutory criteria. All other waiver applications of prospective employers are evaluated under the standards in Chapter 640, the post-October 7, 2008 statutory criteria. The specified criteria are as follows:
- Pre-October 7, 2008 Statutory Criteria
Prior to Chapter 640, in order to obtain a 211 waiver the prospective employer of a retiree had to submit an application which contains detailed reasons to demonstrate that:
- the retired person is duly qualified, competent and physically fit to perform the duties of the position in which he or she is to be employed;
- there is need for his or her services;
- there are not readily available for recruitment other qualified persons if he or she is to earn more than $1,000; and
- his or her employment is in the best interest of the government service.
- Post-October 7, 2008 Statutory Criteria
Under the amended law, in order to obtain a 211 waiver the prospective employer must submit an application which contains detailed reasons to demonstrate that:
- the retiree is duly qualified, competent and physically fit to perform the duties of the position in which he or she is to be employed;
- the prospective employer has prepared a detailed recruitment plan;
- the employment is in the best interest of government; and either
- there is an urgent need for his or her services as a result of an unplanned, unpredictable, unexpected vacancy and sufficient time is not available to recruit a qualified individual and that such hiring shall be deemed as non-permanent rather than a final filling of such position; or
- the prospective employer has undertaken extensive recruitment efforts and has determined that there are no available, qualified non-retirees.
Each § 211 waiver may be granted for up to two years. Approval under Section 211 is meant to be temporary or on a short-term basis when possible. It is not meant to provide a retiree with a second career in government, particularly when it can be shown where there are other qualified non-retired persons seeking promotion or employment.
The State Civil Service Commission Regulations, Part 56.1, which relates to retroactive approval, states the following:
"Approval of the employment of a retiree pursuant to Section 211 of the Retirement and Social Security Law must be secured prior to the effective date of that employment; provided, however, the commission may under the following exceptional circumstances grant such approval retroactively where:
- it is demonstrated that there was an intent on the part of the employing agency to hire the retiree pursuant to Section 211 of the Retirement and Social Security Law;
- the retiree understood that he was being employed pursuant to that section; and
- only through an error of commission or omission approval was not effectuated.
The burden to demonstrate such circumstances is upon the employing agency."
Section 212 provides that, beginning on January 1st of the calendar year in which a retiree attains age 65, there is no limitation on public sector earnings.
If a retiree is age 65 or older, there is no dollar limit on earnings from public sector employment which is rendered on or after January 1, 2002.
For retirees who have not reached the age of 65, Section 212 permits limited earnings during each calendar year without jeopardizing pension benefits. The amount for the calendar year 2008 is $30,000.
In the year of retirement, the Section 212 limit applies to the period between the retirement date and December 31st. In all subsequent years, the limit applies to a full calendar year.
Employers or Retirees seeking information on having post retirement earnings covered under Section 212 should contact their Retirement System. Also see additional information from OSC information on Working After Retirement