211 Statutory Criteria & Commission Guidelines

Section 211 of the Retirement and Social Security Law (RSSL) authorizes the State Civil Service Commission (the Commission) to grant 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 Commission issued guidelines governing the waiver process.

Generally, Chapter 640 has a grandfather clause to ensure that agencies employing retirees under Section 211 waivers will not face extensive turnover of their experienced employees. If a retiree’s first Section 211 waiver was approved on or before October 7, 2008, he/she will be subject to the pre-October 7, 2008 statutory criteria. If the retiree’s first Section 211 waiver was approved after October 7, 2008, he/she will be subject to the post-October 7, 2008 statutory criteria.

Pre-October 7, 2008 Statutory Criteria

Prior to Chapter 640, in order to obtain a Section 211 waiver the prospective employer of a retiree had to submit an application which contains detailed reasons to demonstrate that:

  1. The retired person is duly qualified, competent and physically fit to perform the duties of the position in which he/she is to be employed;
  2. There is need for his/her services;
  3. There are not readily available for recruitment other qualified persons if he/she is to earn more than $1,000; and
  4. His/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 Section 211 waiver, the prospective employer must submit an application which contains detailed reasons to demonstrate that:

  1. The retiree is duly qualified, competent and physically fit to perform the duties of the position in which he/she is to be employed;
  2. The prospective employer has prepared a detailed recruitment plan;
  3. The employment is in the best interest of government; and either
  4. There is an urgent need for his/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
  5. The prospective employer has undertaken extensive recruitment efforts and has determined that there are no available, qualified non-retirees.

Retirees subject to the Post-October 7, 2008 statutory criteria are barred from returning to work "in the same or similar position for a period of one year following retirement."

The statute does not bar an employer from hiring a recent retiree under a Section 211 waiver within one year of his/her retirement merely because the same types of skills are required for the new position. 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/she undertook as an employee prior to retirement, under the guise of a different title, or has used the waiver to work in the identical job for another jurisdiction so that he/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.

If a retiree is subject to the Post-October 7, 2008 statutory criteria, appointing authorities must also submit a detailed recruitment plan.

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 a 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 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 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.

Recruitment

The Commission's ability to evaluate recruitment efforts and the availability of other qualified non-retired candidates is significantly affected by the jurisdictional classification of the position involved. Assuming no extenuating circumstances, the following will be considered when requesting Section 211 waivers, with regard to the particular jurisdictional class of the subject position:

  1. Competitive – When a retiree is serving in a position allocated to the competitive class, the Commission has a practice of approving a Section 211 waiver request for a limited duration to provide time for a competitive examination to be conducted and for a determination to be made, following the establishment of the eligible list, whether there are any qualified non-retirees available for appointment. In these instances, the Commission approves such requests for a period of four months beyond the month in which the examination is to be conducted.
  2. Non-Competitive – An appointing authority must conduct a substantive and contemporaneous recruitment effort using the official civil service qualifications for the position. If the retiree is subject to the Pre-October 7, 2008 statutory criteria, the appointing authority must demonstrate that there are fewer than three qualified non-retirees interested in appointment. If the retiree is subject to the Post-October 7, 2008 statutory criteria, the appointing authority must demonstrate that there are no qualified non-retirees interested in appointment.
  3. Exempt, Unclassified or Other – See Non-Competitive - the exception is that qualifications for these positions are typically established by the appointing authority. The Commission will review the qualifications used in recruitment and make a determination whether or not they are reasonable. If deemed unreasonable, the appointing authority will be directed to recruit with more reasonable qualifications or provide a detailed explanation why the qualifications used are necessary for the position to be filled.

Retroactive Waivers

If retroactive approval is needed, the agency re-employing the retiree must also show how Part 56.1 of the Commission’s Regulations is also met. Part 56.1 states the following: "Approval of the employment of a retiree pursuant to Section 211 of the RSSL 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:

  1. 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 RSSL;
  2. The retiree understood that he was being employed pursuant to that section; and
  3. Only through an error of commission or omission, approval was not effectuated.
The burden to demonstrate such circumstances is upon the employing agency."