38-766.02. Retired members; return to work; employer contribution payments; exception; definitions

A. Notwithstanding section 38-766.01, subsection E, beginning July 1, 2012, an employer shall pay contributions at an alternate contribution rate on behalf of a retired member who returns to work with an ASRS employer in any capacity in a position ordinarily filled by an employee of the employer or in a position that is similar in duties and responsibilities to that of a position ordinarily filled by an employee of the employer. This subsection applies to a retired member who has reached a normal retirement age or a retired member who retired under section 38-758 if the retired member's retirement benefit has not been suspended pursuant to section 38-766.

B. The ASRS actuary shall determine the alternate contribution rate in an annual valuation performed as of June 30. For the fiscal year beginning on July 1 of the following calendar year, the valuation shall determine the percentage to be applied to the compensation, gross salary or contract fee of a retired member who meets the requirements of this section.

C. The alternate contribution rate shall not be less than two percent in any fiscal year. The alternate contribution rate is equal to the lesser of:

1. The employer contribution rate established by the ASRS actuary pursuant to section 38-737 plus the employer contribution rate established by the ASRS actuary pursuant to section 38-797.06.

2. The total past service funding requirement rate established by the ASRS actuary pursuant to section 38-737 plus the total past service funding requirement rate established by the ASRS actuary pursuant to section 38-797.06.

D. ASRS shall determine the schedule and method of payment of the alternate contribution rate. Subject to section 38-738, subsection A, all contributions made by the employer and allocated to the fund established by section 38-712 are irrevocable and shall be used as benefits under this article or to pay the expenses of ASRS. Payments made pursuant to this section by employers become delinquent after the due date prescribed in the board's rules and thereafter shall be increased by interest from and after that date until payment is received by ASRS. ASRS shall charge interest on the delinquent payments as prescribed in section 38-711. ASRS may recover delinquent payments due under this section, together with interest charges as provided in this section, by action in a court of competent jurisdiction against an employer liable for payments or, at the request of the director, ASRS may deduct the delinquent payments and interest charges from any other monies, including excise revenue taxes, payable to the employer by any department or agency of this state.

E. An employer of a retired member shall submit any reports, data, paperwork or materials that are requested by ASRS and that are necessary to determine the compensation, gross salary or contract fee associated with a retired member who returns to work or to determine the function, utilization, efficacy or operation of the return to work program.

F. An employer is not required to pay contributions at an alternate contribution rate on behalf of a retired member under subsection A of this section if the retired member returns to work with the employer in a position that is currently filled by an employee of the employer who is an active member and for which the employer is currently required to pay and is paying contributions on behalf of the active member in that same position pursuant to sections 38-736 and 38-737. An employer may pay contributions at an alternate contribution rate for a retired member who meets the requirements for an exemption under this subsection.

G. For contributions made pursuant to subsection F of this section beginning July 1, 2019, if ASRS and the employer determine that the alternate contribution rate does not apply to a retired member who returns to work for whom the employer has paid contributions at the alternate contribution rate, the employer may request an employer credit, not including interest, for those contributions within ninety days after the end of the fiscal year in which the contributions were paid. If ASRS determines that an employer credit is not feasible, ASRS shall issue a refund to an employer in a form determined by ASRS.

H. For the purposes of this section:

1. " Contract fee" means the gross amount paid to a retired member as an independent contractor minus an amount, not to exceed ten percent, for an administrative fee.

2. " Gross salary" means the gross amount paid to a retired member by a leasing company as salary or wages, including amounts that are subject to deferred compensation or tax shelter agreements, for services rendered or that would have been paid to the retired member except for the member's election or a legal requirement that all or part of the gross amount be used for other purposes.