PART 1: PURPOSE

The New Mexico Educational Retirement Act and corresponding rules and regulations of the New Mexico Educational Retirement Board (NMERB), as well NMSU policy set forth herein, regulate the reemployment of retirees under the New Mexico Educational Retirement Act or the New Mexico Public Employees Retirement Act. The purpose of this policy is to clarify the terms and conditions under which the New Mexico Educational Retirement Board (“NMERB”) retirees may be re-employed by NMSU subsequent to retirement and how that re-employment may affect retirement benefits. This Rule is governed by NMSA 1978, § 22-11-25.1 and the NMERB’s Rules 2.82.5.15 and 2.82.2.11, which may be accessed at https://www.srca.nm.gov/ [Note:  from the New Mexico Administrative Code website, click as follows: “Browse Compilation”; Title 2 (Public Finance); Chapter 82 (Educational Retirement); 2.82.5 (Retirement Benefits); Rule 2.82.5.15 (Return to Work) and Rule 2.82.2.11 (Employees Excluded from Coverage)]. Retirees should also refer to the NMERB website for updates.

PART 2: RULE ADMINISTRATOR

The Assistant Vice President for Human Resource Services administers this Rule; however, it is the responsibility of each NMERB retiree to individually coordinate with the NMERB regarding ERB approval of eligibility for re-employment, as well as to monitor the employee’s compliance relating to FTE percentage or earnings in order to avoid or minimize any adverse impact to retirement benefits.

PART 3: DEFINITIONS

1. “ARP” refers to the “Alternative Retirement Plan”, also referred to as the defined contribution plan, one of the two types of retirement plans administered by the ERB. To avoid confusion between the acronym for the Administrative Rules and Procedures of NMSU (also the “ARP”), this term (Alternative Retirement Plan) will be used in lieu of ARP. 
2. “DCP” refers to the “Defined Contribution Plan”, one of the two types of retirement plans administered by the ERB, and also referred to as the “Alternate Retirement Plan”.
3. “DBP” refers to “Defined Benefit Plan”, one of the two types of retirement plans administered by the ERB.
4. “FTE” refers to “full time equivalency”. FTE typically refers to the number of hours, days, classes, required for a position to be considered full time. FTE may vary between positions and retirees should check with their department head to confirm what the FTE is for a particular position.
5. “Fund” refers to the Educational Retirement Fund.
6. “LAU” refers to “local administrative unit” also known as an NMERB covered institution and for purposes of this Rule typically means NMSU as the educational employer.
7. “Layout” refers to the period in which the retired member must not have rendered service of any nature whatsoever to a local administrative unit (NMERB covered institution). This includes all employment whether full time or part time, substitute teaching, performing duties as a volunteer, which would otherwise be, or in the past have been performed for the local administrative unit by a paid employee or independent contractor, services rendered as an independent contractor, or services as an employee of an independent contractor. A 12-month layout is a pre-requisite for participation in NMERB’s Return to Work program and a 90-day layout period is a pre-requisite for participation in the $15,000 Return to Work provision.
8. “NM ERA” refers to the state of New Mexico’s Educational Retirement Act, Sections 22-11-1 through 22-11-55, NMSA 1978.
9. “NMERB” refers to the state of New Mexico’s Educational Retirement Board, the statutorily authorized administrator of the NM ERA, which governs the retirement rights of eligible employees.
10. “NMERB Retiree” includes both defined benefit plan retirees and alternative retirement plan retirees.

PART 4: RULE STATEMENT(S)

NMERB retirees, including defined benefit plan and alternative retirement plan retirees, may be employed by NMSU consistent with New Mexico law and NMERB rules and regulations, as they may be amended from time to time.  In the event of a conflict between this Rule, and the NM ERA or NMERB rules/regulations, the latter shall govern.

1. Return to Work Program

   The New Mexico Return to Work Program permits qualified NMERB retirees to return to work, without limitations on the FTE percentage or on annual earnings.

   1. For employees who retired after January 1, 2001:
      1. The NMERB retiree must not work for NMSU (or any other LAU) for 12 consecutive months; and
      2. Prior to the date of re-employment, the retiree/prospective employee must have submitted a Return to Work application to the NMERB, and have received NMERB approval, verifying the retiree’s eligibility to participate in the Return to Work program.
   2. For employees who retired before January 1, 2001, and since that time have not voluntarily suspended their retirement benefits, or were not required to suspend their benefits (e.g. worked less than .25 FTE per fiscal year or earned less than $15,000 per fiscal year):
      1. The 12 consecutive month layout requirement does not apply; and
      2. Prior to the date of re-employment, the retiree/prospective employee must have submitted a Return to Work application to ERB, and have received ERB approval, verifying the retiree’s eligibility to participate in the Return to Work program.
   3. For employees who retired before January 1, 2001, and since that time have voluntarily suspended their retirement benefits or were required to suspend their retirement benefits:
      1. Retirees must have had a 12 consecutive month period in which they did not work for a NMERB institution; and
      2. Retirees/prospective employees must not have rendered services in any capacity to a LAU for an additional ninety (90) consecutive days prior to returning to employment under the Return to Work Program. The 90 day period shall not include any part of a summer, winter, or spring break period or vacation or sick leave.
      3. Prior to the date of re-employment, the retiree/prospective employee must have submitted a Return to Work application to the NMERB, and have received NMERB approval, verifying the retiree’s eligibility to participate in the Return to Work program.
   4. No Service Time or Refundable Contributions:
      1. Consistent with NMSA 1978, § 22-11-25.1 C., Return to Work Program retirees shall continue to receive retirement benefits, but shall not be entitled to acquire service credit, nor to acquire or purchase service credit in the future for the period of the retired member’s reemployment.
      2. Consistent with NMSA 1978, § 22-11-25.1 E., both the Return to Work retiree, and NMSU shall pay to the fund an amount equal to the amount of the member contributions that would have been required under NMSA 1978 § 22-11-21 if the re-employed member had been a non-retired employee. Contributions paid pursuant to this section shall not be refunded to the employer or to the employee.
2. Return to Work Provisions

   As described below, the NMERB does not consider limited employment with an LAU to fall within the Return to Work Program.

   1. NMERB retirees, which includes both DBP and DCP retirees, may work for a LAU without satisfying the Return to Work Program requirements if the retiree works an amount equal to 0.25 FTE (i.e., 25% of the full-time equivalency) or earns under $15,000 per fiscal year (the fiscal year is July 1 to June 30). A retiree who works under a Return to Work Provision is not required to apply for the Return to Work Program and will not have to pay member contributions. The retiree is required to complete and submit to NMERB a RTW Application and indicate the RTW option that they are applying for. The NMERB approved application must be provided to NMSU prior to beginning employment. Time worked under the Return to Work Provisions do not qualify for the 12 consecutive month layout required for the Return to Work Program. If the retiree’s earnings exceed $15,000 within the fiscal year or the retiree’s workload exceeds 25% of what is considered full time employment for any month of the fiscal year, as applicable, the retiree no longer is eligible for the provision. The retiree/member’s retirement benefit will be suspended for the duration of the employment and will return to active status.
   2. A retired member may return to work for an ERB employer and earn less than $15,000 per year, provided the member has completed a 90 consecutive day layout period. The member cannot have entered into either a formal or informal agreement to return to work prior to the date of retirement or within 90 days after the date of retirement. The member will not pay contributions to the ERB fund and they will not earn or purchase service credit during this RTW employment. Alternative Retirement Plan retirees may work for a LAU pursuant to the NMERB’s Return to Work Provisions.  Retired Alternative Retirement Plan participants who exceed the limitations of the Return to Work Provision will be required to pay contributions (non-refundable) at the rates established for active members as required by NMSA 1978 § 22-11-25.1 (E).
3. Consequences for Violation of NM Educational Retirement Law
   1. If a NMERB retiree returns to employment without first completing the requirements for the Return to Work Program or the Return to Work Provisions, the retiree’s retirement benefits may be immediately suspended, and the retiree will also be required to pay the fund a sum equal to the retirement payments received while the retiree was ineligible, plus interest at the rate set by the Educational Retirement Board.
   2. Retirees under the Alternative Retirement Program who return to work also must comply with the Return to Work Program or Return to Work Provisions. See Section 22-11-25.1 (E) NMSA 1978 of the Educational Retirement Act and all applicable NMERB Return to Work rules, including Rule NMAC 2.82.5.15 and Rule NMAC 2.82.2.11 (B).
   3. NMERB retirees that exceed the limits will be returned to active status in the Defined Benefit Plan, even if the retiree originally retired under the Alternative Retirement Plan.
   4. Before the retiree’s monthly retirement benefits will be resumed, the retiree member must certify to the NMERB that the retiree has ceased the employment that would violate the Return to Work rules.
   5. If the retiree/member desires to re-qualify for the Return to Work program, the retired member shall complete the required minimum break in service.
4. Additional Requirements for Re-Employment of NMERB Retirees
   1. Upon employment under the NMERB Return to Work program or provisions, NMERB retirees shall provide to the Office of Human Resource Services, a copy of the approval granted by the NMERB, finding the retiree eligible for participation in the Return to Work program or applicable provision.
   2. Upon employment, and in accordance with the state’s rule on the Return to Work provisions, NMERB retirees shall be limited to working an amount equal to the 0.25 FTE (i.e., 25% of the full-time equivalency) for any month of the fiscal year or earning less than $15,000 within the fiscal year. It shall be the responsibility of the retiree to ensure that the NMERB Return to Work Provision limits are not exceeded; NMSU will not be responsible for any administrative consequences imposed by the NMERB in the event that the limitations of the provision are exceeded.
   3. NMERB retirees who work for more than one LAU covered by NMERB are obligated to inform each employer about all NMERB-covered jobs. The law requires the earnings of all NMERB-covered jobs to be combined in the determination of whether the retiree complies with the Return to Work Provision limits. The resulting FTE must not exceed .25 FTE for any month of the fiscal year or earnings must not exceed $15,000 within the fiscal year.
   4. NMERB retirees shall be subject to the same hiring policies and procedures as other prospective applicants, including the competitive hiring process required for certain positions. However, NMERB retirees returning to faculty positions may only be employed as college non-contract faculty.
   5. NMERB retirees who are hired in a regular or non-regular term position will accrue the same number of annual leave days per fiscal year (based on FTE) as regular employees. All earned annual leave must be used or forfeited by June 30 of every fiscal year.  Retirees will not be paid annual leave upon termination of employment with the university.