In response to questions we’ve received from employers who are seeking clarity about public safety overtime, Regulation 315.5 of the New York Codes, Rules and Regulations (NYCRR) has been established to help employers determine what overtime is reportable and pensionable.
As of July 1, 2019, public safety overtime that is paid by a public entity, and meets other requirements, is pensionable and needs to be reported to NYSLRS. This includes special duty assignments that involve public safety work that is directed, controlled and paid for by a public employer and reimbursed by a private entity.
Regulation 315.5 identifies criteria for determining whether public safety overtime constitutes pensionable government service.
The regulation applies to public safety overtime performed as a special duty assignment, on or after July 1, 2019 by:
- Active members of the Police and Fire Retirement System who are engaged in police or fire service; and
- Active members of the Employees’ Retirement System who are employed as sheriffs, undersheriffs or regular deputy sheriffs engaged directly in criminal law enforcement activities that make up fifty percent of his or her job duties as certified by the Sheriff.
For Public Safety Overtime to be Reportable to NYSLRS
The following factors must be present for the overtime to be considered government service and reportable to NYSLRS:
- The overtime duties are regular and expected police, fire and deputy sheriff duties that ensure public safety.
- The overtime paid is pursuant to a contract for services between the participating employer and the private entity.
- The services provided are for the benefit of the public at large, rather than for the exclusive benefit of the private entity.
- Payment to the employee for the special duty assignment must be made directly by the participating employer, not the private entity.
- The overtime must be mandated by the local government/department and consistent with the participating employer’s practice for assignment of overtime. Voluntary service cannot be considered pensionable.
- The overtime service performed is by direction, supervision and control of the Chief or Head of the Department.
- While performing special duty assignments, the employee is considered “on duty” by the participating employer and remains covered for liabilities that arise during the course of the public safety overtime, just as they are for regular duty assignments.
The employer of any member covered by the regulation must report all public safety assignments to NYSLRS that meet the criteria above. Employers should report public safety overtime with other earnings as you normally would in Retirement Online. In the future, as local employers move to enhanced reporting, there will be a specific reporting code for this type of overtime.
NYSLRS may request documentation from the employer to confirm that reported overtime is pensionable. Examples of documentation that NYSLRS may request include the written agreement between the private entity and the employer describing the special duty assignment to be performed, the employer’s overtime policy and/or collective bargaining agreement and payroll documents associated with the special duty assignment.
Public safety overtime does count against the overtime cap for Tier 5 and Tier 6 members. For more information about overtime limits, visit our Overtime Limits for Tier 5 and Overtime Limits for Tier 6 pages.