Educator Resources

Frequently Asked Questions and Answers on the Waiver Process for Employment of a Retiree under §211 of the Retirement and Social Security Law

How to Apply

  1. Can an application for employment of a retiree be filed by a Board of Cooperative Educational Services (BOCES) as well as by school districts?

    Yes, this application is to be used by all public school districts outside the City of New York, as well as BOCES and Vocational Education and Extension Boards (VEEBs).  The employing entity must complete the retiree waiver statement in TEACH.

  2. How do we submit an application for employment of a retiree?

    There is an online process in TEACH. This is a two part process where  the retiree submits an application using his/her TEACH account and the school district enters a Retirement Waiver Statement in TEACH. You will find this link under Retiree Links. For information on obtaining a school district TEACH account send an inquiry to TEACHHELP@mail.nysed.gov.

  3. When must the application and superintendent statement be filed?

    §80-5.5(c)(4) of Commissioner’s Regulations states that both the retiree and the district must file the request “prior to employment, but in no event more than 30 days after employment commences”.

  4. What about colleges?

    This process is not applicable to colleges.  Postsecondary schools, such as vocational schools, community colleges, and four-year institutions, obtain approval for the hiring of retirees from other sources.

  5. Should this process be used for Civil Service positions?

    No. For employees in classified (Civil Service) positions, the district applies to the State Department of Civil Service, even if the person holds certificates for school service.  Conversely, the district would use this application in the case of a retiree who is now being considered for an interim teaching, pupil service or administrative position, even though the person retired from a classified position or a licensed profession.

  6. Are there other circumstances where an application for employment of a retiree is not required?  

    Yes. If the retiree’s earnings from public employment will remain under the maximum amount permitted by the Retirement and Social Security Law during the calendar year of employment (at present this amount is $30,000), or if the retiree has the retirement system of which he or she is a member suspend his or her benefits, approval of employment is not required.  

  7. What about retirees from the federal government or the military?

    Such retirees are not affected by this law, and an application to the Department for approval of their employment is not necessary.

  8. Are there other circumstances where an application for employment of a retiree is not required?  

    Yes. If the retiree’s earnings from public employment will remain under the maximum amount permitted by the Retirement and Social Security Law during the calendar year of employment (at the present this amount is $30,000), or if the retiree has the retirement system of which he or she is a member suspend his or her benefits, approval of employment is not required.  

  9. For how long is the retiree subject to this law?

    Beginning on January 1 of the year in which the person becomes 65 years of age (no matter when the birthday occurs), the retiree is no longer subject to this law, and there are no longer any limitations on the amount the person may earn. So, as of that time, the approval of the State Education Department is no longer required and a waiver is not necessary.

 

Completing the Application

  1. In what instances may a request for approval of a retiree be submitted?

    An application may be submitted where a temporary need exists and a thorough and good faith search for a non-retired individual to fill the position has not yet been successful.  All certified non-retired candidates for the position must first be considered. The position must have been broadly advertised, taking into consideration the location of the district.  The recruitment effort for a permanent employee must continue during the service of the interim employee.

    An application may also be submitted in an emergency/extraordinary situation requiring an immediate interim appointment, which precludes the district from conducting as thorough a search as would ordinarily be conducted.  In this case, a description of the selection process the district uses to identify a temporary employee is to be included with the application.

  2. How are shortage areas determined? What does the term "high need school" mean? 

    A subject area is designated as a teacher shortage area if it had a shortage of certified teachers in the previous school year and a projected shortage in the current school year.  For example, technology education has historically been a teacher shortage area.  A high need school includes, but is not limited to, schools under registration review (SuRR), low performing schools, and other high need schools in which there was a shortage of certified teachers in the previous school year and a projected shortage in the current school year. 

  3. The incumbent of a central office position in our district was suddenly taken gravely ill.  In the confusion, the district failed to submit an application for employment of the retiree who is filling in temporarily, nor was there enough time to do a thorough search for a non-retired person.  What should we do?

    The application should be submitted immediately.  It may not be delayed for more than 30 days after the retiree commences employment.  A brief description of the emergency and a description of the selection process the district used are to be included with the application.

  4. A copy of the school board resolution concerning the appointment of the retiree is required with the application form, but the board of education has not appointed the retiree because approval has not been received from the Commissioner.  How can we comply with this requirement?

    The resolution required is one which authorizes appointing the person, subject to the approval of the Commissioner.    The retiree should not actually be appointed until approval is received.

  5. We have a contract with an independent contractor. May we submit a copy of the contract instead of the board resolution?

    No. A copy of the school board resolution is required, and the retiree (not the corporation) must be named in the resolution.

  6. What explanation may be given for wishing to employ a particular retiree?

    The reason for the vacancy must be stated.  Specific reasons must be given as to the need for this particular retired person, and why employing this particular person is in the best educational interests of the district, BOCES or Vocational Education and Extension Board (VEEB).

  7. Is a print advertisement always required?

    It is preferable to use a print advertisement, but as the expense of a print advertisement cannot always be sustained by a district, the use of online resources such as the On-line Application System for Educators (OLAS) is an acceptable alternative.  When sufficient candidates are expected to be available and a print advertisement is not used and no online announcement is available, the internal announcement may be substituted, with an explanation, in submitting the application.  However, if sufficient candidates do not respond, the district must act immediately to recruit qualified non-retired applicants more aggressively.

  8. Our contract requires internal posting of vacancies.  Is it acceptable to submit this as evidence of recruitment?

    Internal postings may be submitted, but not as the sole evidence of recruitment. The recruitment effort must also include outside contacts, such as print advertisements and/or online search, contact of colleges preparing for the certificate required for the position, attendance at job fairs, and any other means used to open the position to qualified non-retired applicants from outside the district. 

  9. What is meant by "plan for recruitment"?

    Information to be given in the plan should include at least the following:
    • What steps will be taken to continue the search for a qualified non-retired person?

    • What selection criteria are to be used?

    • What media outlets (e.g., newspapers, magazines, electronic media, professional organization journals/newsletters) will be used to recruit?

    • What is the timetable for the recruitment process?

    • What are the contingency plans to expand and intensify recruitment if the initial actions do not yield a sufficient pool of non-retired candidates?

    • Has an individual already employed in the district been identified as a potential person who could be prepared and is willing to assume the duties of this position? 

    • By what date is it anticipated that a permanent employee will be in place?

    • If the retiree will be serving as a leave replacement, when is the incumbent expected to return? 

  10. The application calls for the superintendent of schools to sign the affidavit. Who should sign if the application is for an interim superintendent?

    If the application is for an interim superintendent the BOCES district superintendent is to submit the Retirement Waiver Statement on TEACH. 

 

Restrictions

  1. The Governor has signed into law a further restriction on employment of a retiree. In addition, the Board of Regents adopted revised regulations conforming to the statutory changes.  The Regents’ revised regulations became a permanent rule on November 13, 2008.  How does this change affect a retiree’s employment by a public school?

    This change prohibits a person from returning to work "in the same or similar position for a period of one year following retirement."  The statute does not limit the waiting period to certain types of positions, thus the restriction applies equally to teachers and administrators.  Moreover, the statute does not limit the restriction to the original place of employment.  Thus, the restriction applies equally whether the subsequent position is in the same district or in another district.

  2. Chapter 640 of the laws of 2008 became law in October 2008 and the Board of Regents’ revised regulations became permanent on November 13, 2008. How do these changes affect a retiree’s employment by a public school?

    Most of the statutory provisions of chapter 640 related to section 211 of the Retirement and Social Security Law mirror the new Regents’ regulations. However one important aspect of the new law prohibits a person from returning to work "in the same or similar position for a period of one year following retirement."  The statute does not limit the waiting period to certain types of positions, thus the restriction applies equally to teachers and administrators.  Moreover, the statute does not limit the restriction to the original place of employment.  Thus, the restriction applies equally whether the subsequent position is in the same district or in another district.

  3. What additional restrictions are placed on employment of a retiree as an interim superintendent of schools?

    The district must certify on the application that the retired person, if approved as an interim superintendent of schools, will not lead the review and selection process for a permanent employee in this position. The retiree may participate in the review and selection process; however they may not lead the process, as the search is the responsibility of the board.

  4. May the request for approval of a retiree be for more than one year?

    No, one year is the most that may be requested.

  5. How about a renewal or extension?

    A request for one renewal, for one additional year, may be made, but only where the vacancy or leave continues because of unexpected and unforeseen circumstances beyond the control of the district and board.  Renewals will not be approved routinely. Only one renewal will be considered.

  6. May another application be made for this retiree in the future? 

    The district may not apply for additional approvals in the future for this retiree unless the person will be serving in a teacher shortage area or high need school in a field or subject for which the person holds a teaching certificate. 

  7. May a retiree return to the district from which the person retired?

    This is permissible in any of the following instances:

    • the retiree’s earnings from public employment will remain under the amount permitted by law;

    • the retiree has his/her retirement benefits suspended while so employed;

    • the retiree will be 65 or older during the calendar year in which employment begins and thus approval is no longer required.

    • the retiree has been retired from the district for at least one year.

    Further information about other earnings limitations or suspension of benefits when a retiree returns to a district in which they worked prior to retirement, is available on the Teachers’ Retirement System web site.



  8. What if the district committees charged with reviewing candidates for the permanent position find that a retiree is the person best qualified to fill the opening?  May that person be selected?

    A retiree may be selected only where a certified and qualified non-retired person cannot be found to fill the position. The only exception would be if the retiree were to have the retirement system of which the person is a member suspend his/her benefits while so employed ("coming out of retirement").  Otherwise, the district must select the qualified and certified non-retired applicant even if a retiree was found to be better qualified than the non-retired applicant.   

 

Submitting the Application

  1. How can we be sure that an application or inquiry will be handled quickly?

    Recognizing the importance of §211 waivers to school districts, the Department is committed to processing these applications as quickly as possible.  School districts can assist with the expeditious handling of these applications and inquiries by writing "Retiree" on the face of the envelope when sending an inquiry to the  Department’s Office of Teaching Initiatives or by giving "Retiree" as the subject of the fax or e-mail message.

 

Transparency

  1. When an approval for temporary employment of a retiree is granted, who must the employing entity notify?

    Upon employment of a retiree under Section 211 waiver, the district, BOCES, or county VEEB must notify all resident taxpayers of the approved employment, the compensation package it will pay the retiree, and the retired person’s right to receive his/her pension while employed with the district or board.

    An employer may satisfy this notification requirement by publishing this information on its Web site (if the district has one) and including it in the next regular mailing of its newsletter or bulletin to the community.

Contact information

  1. If we have a question which is not included in this "Q and A," how can we contact the Office of Teaching Initiatives?

    A school district official may call the Office of Teaching Initiatives at (518) 474-4661, send an e-mail inquiry to 211requests@mail.nysed.gov, or send a fax at (518) 473-0271.  

    A retired individual may send an e-mail inquiry to 211requests@mail.nysed.gov, call (518) 474-3901, or fax to (518) 474-6950. 
Last Updated: August 22, 2012