N.Y. Comp. Codes R. & Regs. tit. 2 § 315.5

Current through Register Vol. 46, No. 45, November 2, 2024

Section 315.5 - Reporting requirements for service credit involving public safety overtime

(a) Background. The Retirement System has long considered certain special duty assignments that consisted primarily of security work performed by public safety professionals at the request of a private entity on a voluntary basis, paid or reimbursed by the private entity, performed under the direction of the private entity, or primarily for the benefit of the private entity not to be creditable because such assignments did not constitute paid public service with a participating employer. Courts have upheld the Retirement System's position that such work, often referred to as "private entity overtime" was not allowable service, and was not within the realm of the employee's duties for the participating employer. In recent years, however, the manner in which special duty assignments performed at the request of private entities are assigned, supervised, and compensated has changed. Today, special duty assignments a re often mandatory and are directed and controlled by the public employer. Compensation to the employee is paid by the public employer, not the private entity. In recognition of the changing nature of special duty assignments, the Retirement System has determined that those special duty assignments that meet the criteria established by the Retirement System, qualify as "public safety overtime" and shall be considered allowable service.

(b) Definition. For purposes of the section, "public safety overtime" shall mean overtime service for hours worked in excess of regularly scheduled hours that is performed by a member as a special duty assignment that meets the criteria set forth in subdivision (g) of this section.

(c) Applicability. This section applies to the following members: Active members of the New York State and Local Police and Fire Retirement System who are engaged in police or fire service as defined in Subdivision 11 of Section 302 of the Retirement and Social Security Law; and Active members of the New York State and Local Employees' Retirement System who are employed as sheriffs, under-sheriffs or regular deputy sheriffs engaged directly in criminal law enforcement activities that aggregate fifty per centum of his or her job duties as certified by the county.

(d) Reporting. The employer of any member covered by this section shall report all special duty assignments to the Retirement System at such time and in such manner as prescribed by the Retirement System. The Retirement System is authorized to audit all such reports to confirm that only those special duty assignments that qualify as public safety overtime are treated as allowable service.

(e) Information required from employers. The employer shall provide any and all documents requested by the Retirement System for the purpose of confirming that the reported special duty assignment is allowable public safety overtime. Examples of the documents that may be requested shall include, but are not limited to, the following:

1. The contract or other written agreement between the private entity and the employer describing the services to be performed as the special duty assignment;

2. The employer's overtime policy and/or collective bargaining agreement; and

3. Payroll documents associated with the special duty assignment.

(f) Contributions. Contributions for earnings associated with special duty assignments deemed allowable service shall be made by employees and employers in the manner prescribed by the Retirement System.

(g) Criteria for allowable service. The following criteria apply to the determination of whether a special duty assignment qualifies as public safety overtime and is to be reported to the Retirement System as allowable service:

1. There is a contract for services between the participating employer and the private entity;

2. The services provided are for the benefit of the public at large, as opposed to for the exclusive benefit of the private entity;

3. The duties performed by the employee for the private entity are police, fire or sheriff department duties that are provided for public safety;

4. Payment to the employee for the special duty assignment is made by the participating employer, not by the private entity;

5. The special duty assignment is available to all employees in the public safety title, consistent with the participating employer's policy or practice for the assignment of overtime;

6. The work performed for the special duty assignment is directed, supervised and controlled by the participating employer;

7. The special duty assignment is mandatory, consistent with the participating employer's policy or practice for the assignment of overtime; and

8. The employee is indemnified by the employer when performing the special duty assignment.

(h) Limitations. Notwithstanding any other provision of this section, the creditability of public safety overtime is subject to the limitations provided for in the Retirement and Social Security Law.

N.Y. Comp. Codes R. & Regs. Tit. 2 § 315.5

Adopted New York State Register May 29, 2019/Volume XLI, Issue 22, eff. 7/1/2019

Amended New York State Register November 20, 2019/Volume XLI, Issue 47, eff. 11/20/2019