Civil Service Commission Guidelines for Approval of Requests Pursuant to Retirement and Social Security Law Section 211
Section 211 of the Retirement and Social Security Law (RSSL) authorizes the State Civil Service Commission (Commission) 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 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 specific provisions of section 211 govern the process. Where these guidelines are inconsistent with a provision of RSSL section 211, the section 211 provision governs. For any questions not addressed by these guidelines, please call the Office of Commission Operations & Municipal Assistance at 518-473-5055 for further information.
The state policy reflected in section 211 recognizes that 211 waivers play an important role in New York's workforce management, in the law enforcement arena as well as for filling other jobs such as nurses and school bus drivers. There are legitimate needs for hiring retirees including the transfer of knowledge to new hires, the need to keep vital work going until a permanent replacement can be hired, and the absence of non-retirees with the experience or qualifications required to perform the necessary government functions. While not a substitute for hiring and retaining new workers, in some cases hiring retirees may be necessary.
According to Commission records, the overwhelming majority of section 211 waivers are granted to retired law enforcement personnel who have earned their pensions under the provisions of the applicable retirement system. This is attributable to the need for highly trained security personnel, particularly in the post 9/11 environment, and the abundant supply of retired law enforcement personnel. Under the RSSL, police officers can retire after 20 years of service.
The purpose of the Chapter 640 amendments according to the Governor's Approval Memorandum 46 is to ensure that the public is "protected from improper 'double-dipping,' especially in these trying economic times, while employers must perform their governmental functions using the best available talent, giving careful thought and consideration to all factors in hiring." In order to obtain a 211 waiver, the prospective employer must show that qualified, non-retired persons are not available for recruitment.
Accordingly, all retired members of a retirement system administered by the State or any of its political subdivisions who are receiving a retirement allowance for other than a physical disability, and wish to work in a public service position, cannot do so without approval under RSSL section 211 by the appropriate body if they are to earn in excess of the earnings limitation in RSSL section 212. This includes persons working as independent contractors/consultants who became members of a New York State retirement system on or after May 31, 1973. Earnings as an independent contractor or consultant with a public employer are regulated by RSSL section 211 in the same manner as post-retirement employment with a public employer.
The Commission's role under RSSL section 211 is to ensure that the prospective employer has provided detailed reasons, on satisfactory evidence, that the appropriate statutory criteria have been met. The Commission does not have the authority to limit the number of or types of positions for which waivers are requested. Prospective approvals by the Commission on a section 211 request may be valid for a period not to exceed two years.
B. The Statute
- 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.
In addition, under Chapter 640 retirees are barred from returning to work "in the same or similar position for a period of one year following retirement." As set forth in the Governor's Approval Memorandum 46, this provision relates to the specific abuse whereby an employee retires and then immediately returns to a position with essentially the same functions. This provision "need not, however - and should not - be read to bar an employer from hiring a recent retiree under a 211 waiver merely because the same types of skills are required for the new position and the work the individual previously performed. For example, nothing in this language would bar a recently retired police officer from receiving a 211 waiver to work as an investigator in a district attorney's office. Indeed, the productive use of the investigative skills possessed by such an officer is the epitome of what section 211 seeks to achieve."
Thus, Chapter 640 does not bar an employer from hiring recent retirees under a 211 waiver within one year of their retirement merely because the same types of skills are required for the new position and the work the individuals previously performed. An analysis of what constitutes the "same or similar position" will be made on a fact-specific basis upon the submissions of the prospective employer and the verified statement of the retiree. Evidence that a retiree is performing the precise tasks he or she undertook as an employee prior to retirement, in the guise of a different title, or has used the waiver to work in the identical job for another jurisdiction, so that he or she may receive both a pension and salary for the same tasks, will weigh strongly against a waiver. On the other hand, evidence that a different employer seeks to use a retiree's skills and talents in a new capacity - even if in the same general field, such as "criminal investigation" - would weigh in favor of the waiver.
Chapter 640 also refers to a "detailed recruitment plan to fill such vacancy on a permanent basis" and unless there is an urgent need for the waiver as the result of an sudden or unexpected circumstance, the employer must attest that it has "undertaken extensive recruitment efforts to fill such vacancy and as a result thereof, has determined that there are no available non-retired persons qualified to perform the duties of such position." Accordingly, the prospective employer must fully explain the efforts it has made to find qualified, non-retired candidates. While the contents of the employer's recruitment plan are not mandated by statute, the prospective employer must specifically set forth such reasonable recruitment efforts as it has taken. The level and nature of the efforts needed will vary with the specific circumstances. The statute does not require that the employer undertake recruitment efforts that would be fruitless, where the prospective employer sets forth a specific reason as to why more expansive efforts were unnecessary, such as recent experience recruiting for the same title or statistical evidence of a shortage of qualified employees available to fill the position. What suffices as a detailed recruitment plan will again be made on a fact-specific basis upon submissions made by the prospective employer. (See section D below for additional information on recruitment.) Recruitment efforts should be taken at or near the time of the application for a section 211 waiver, generally within a year.
C. General Guidelines
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 as set forth herein. All other waiver applications of prospective employers are evaluated under the standards in Chapter 640, the post-October 7, 2008 statutory criteria.
Regardless of the specific statutory criteria, prospective employers applying for a section 211 waiver from the Commission must do so at least 90 days before the effective date of employment. The application requires the lawful appointing authority to certify under penalty of perjury that the appropriate criteria under section 211 have been satisfied and relevant information provided. Section 211 waiver applications are submitted using an online process which is restricted to authorized users of the system only. Public employers wishing to submit a section 211 waiver application should review the Application Instructions to learn how to obtain a User ID and password for the application system and learn what information is required to complete the application. This information, and access to the online application, is available on the Retirees Page of the Department of Civil Service web site.
For each request, the Commission will make a fact-specific analysis which evaluates the relevant factors. The Commission will review the documentation of the prospective employer against either the pre-October 7, 2008 or post-October 7, 2008 statutory criteria, as appropriate. Regardless of the jurisdictional classification of the position (i.e. competitive, non-competitive, exempt or labor), each of the appropriate statutory criteria must be met. The following explains the general guidelines used by the Commission when reviewing a section 211 waiver request:
- The possession of specific qualifications for a particular position should not be based solely on years of experience; retirees inherently possess many years of experience. The prospective employer must demonstrate that the retiree's experience directly relates to the duties and responsibilities of the specific position to be filled.
- Any extenuating circumstances such as the need to have the position filled within a critical time period should include a discussion of whether denying the request would hamper agency operations. This is particularly important where the position is related to health or public safety. The prospective employer should also discuss what steps are being taken to train non-retired personnel.
- With regard to competitive class positions, residency requirements may also be considered in evaluating the appropriateness of a request from a local jurisdiction, particularly when the appointing authority requires residents be certified before non-residents.
- Retirees who do not receive approval under RSSL section 211, but who are otherwise eligible for appointment, may still continue their government service by suspending their retirement benefits and rejoining the retirement system as active members.
- On or after the calendar year in which any retiree attains age sixty-five, the retiree may continue to work, without any loss, suspension or diminution of his retirement allowance as provided in RSSL section 212.
The Commission's ability to evaluate recruitment efforts and the availability of other qualified non-retired candidate is significantly affected by the jurisdictional classification of the position involved. Assuming no extenuating circumstances, the following will be considered when requesting 211 waivers with regard to the particular jurisdictional class of the subject position.
1. Competitive class positions:
- In the absence of an eligible list to fill the position a retiree may receive a provisional appointment and waiver if he or she meets the minimum qualifications established for the position until establishment of an eligible list with available non-retirees for up two years, depending on satisfaction of the other statutory criteria.
- The prospective employer must explain why it is not possible to promote qualified employees to fill the position.
2. Non-Competitive positions:
An employer need not engage in the same level of extensive recruitment for hard to recruit professions, as for those where non-retirees are generally available. A "hard to recruit" position may include those positions for which members of the public generally do not possess the specialized expertise required and recruitment efforts would be futile. These would include specialized law enforcement positions, physicians, engineers, nurses, school bus drivers and other positions. Placement of advertisements is generally unnecessary where there exist continued and widespread recruitment difficulties for the position (e.g. School Bus Drivers and Registered Professional Nurses).
The prospective employer must explain why it is not possible to promote qualified employees to fill the position.
3. Exempt, Unclassified, or Other positions:
The appointing authority has the ability to set desired criteria and qualifications for these positions. Accordingly, the prospective employer must clearly articulate how a retiree meets the qualifications that are necessary to perform the duties of the position. A recruitment plan must be filed before a 211 waiver may be granted for such positions, but it should reflect the position's unique nature and qualifications.
The prospective employer must explain why it is not possible to promote qualified employees to fill the position.
4. Special Policy Directive for State Agencies and Public Authorities: (directive)