UNDERSTANDING THE TRS 6% CAP: A PRACTICAL GUIDE TO NEGOTIATING PENALTY-FREE COLLECTIVE BARGAINING AGREEMENTS Presented by Robert E. Riley Illinois Association of School Business Officials May 15, 2008 I. A RECAP OF THE TRS PENSION REFORM LEGISLATION A. Revised ERO Contributions: Increased Cost to Employers and Employees 1. Employees who retire after June 30, 2005 who are not “pipelined,” with less than 35 years of TRS creditable service must make a one- time payment equal to 11.5% of their highest annual salary multiplied by each year that the employee’s age is less than 60 or for each year that the member’s creditable service is less than 35 years, whichever is the lesser. 2. Employers must pay 23.5% per year for each year that the employee is under age 60, up from 20% per year, under the prior ERO program. 3. For employees retiring with 34 years of service, both the employee and the employer will owe one year’s contribution at the new rates. 4. Active employees must begin paying an additional .4% per year over their mandated TRS contribution rate. If the employee retires without accessing ERO, these amounts will be rebated to the teacher. B. Employer Contributions for End-of-Career Increases in Creditable Earnings in Excess of 6% 1. If the amount of the teacher’s compensation used to determine the final average salary (usually the final four years of employment) exceeds the creditable earnings with the same employer for the previous year by more than 6%, then the employer shall pay to TRS the net present value of the increase in retirement benefit resulting from the portion of increase in salary in excess of 6%. NOTE: The following generally are creditable earnings for determining the teacher’s retirement annuity: • Salary for regular contractual teaching duties; • Wages for homebound teaching; • Earnings for extra duties; • Earnings for summer school; • Bonuses; 1 • Longevity stipends; • Wages while using vacation, sick leave and personal days; • Severance payments received or becoming due and payable to a member prior to or with the final regular paycheck or the last day of work; • Cash payout in lieu of vacation (paid before retirement); • Contributions to qualified plans eligible for tax deferral under IRS §§ 401(a), 403(b) and 457(b); • Contributions to flexible benefit plans; and • Any portion of the 9% member contribution – and the additional .4% required under the reform legislation. 2. Safe Harbored Contracts TRS will safe harbor earnings in excess of 6% so long as the benefits are paid under a collective bargaining agreement, contract or district policy entered into, amended or renewed before June 1, 2005 and: • The teacher retires within three years of the expiration of the collective bargaining agreement; and • The teacher retires by June 30, 2011 (See Rule 1650.483(a)). 3. Earnings specifically removed from the 6% cap: a. Any salary increases resulting from overload work, including summer school, when the school district has certified the TRS and TRS has approved the certification, and: (1) The overload work is for the sole purpose of classroom instruction in excess of the standard number of classes for a full-time teacher in a school district during a school year; and (2) The salary increases are equal to or less than the rate of pay for classroom instruction computed under the teacher’s current salary and work schedule. 2 NOTE: For summer school earnings to be exempt the member must be a full-load teacher at the district and the salary increase must be earned for classroom instruction at a rate no greater than the teacher’s regular rate. This exemption does not apply to duties which do not require teacher certification, such as attendance at workshops or curriculum writing. b. Any salary increase that results from a promotion: (1) For which the employee is required to hold a certificate of supervisory endorsement issued by the State certification board that is a different certification or supervisory endorsement and is required for the teacher’s previous position; and (2) To a position that has existed and been filled by a member for no less than one complete academic year and a salary increase from the promotion is an increase that results in an amount no greater than the lesser of the average salary paid for other similar positions in the district requiring the same certification or the amount stipulated in the collective bargaining agreement for a similar position requiring the same certification. 4. Any payment to the teacher from the State of Illinois or State Board of Education or for which the employer does not have discretion, notwithstanding that the payment is included in the computation of final average salary. 5. Any salary increase given on or after July 1, 2011 but before July 1, 2014 under a contract or collective bargaining agreement entered into, amended, or renewed on or after June 1, 2005, but before July 1, 2011. 6. Any changes in employment due to a consolidation or reorganization constitutes a “change in employer” thereby exempting a salary increase as a result of the consolidation/reorganization from the 6% salary cap. 7. Any salary increases paid to a teacher from a time when a teacher is ten or more years from retirement eligibility. 3 C. Grants of Sick Leave in Excess of the “Normal Annual Allotment.” 1. TRS rules require a school district pay a financial penalty to TRS for sick leave days granted to teachers during a teacher’s final four (4) school years before retirement if these days exceed the teacher’s “normal annual sick leave allotment,” which TRS defines as: The phrase “normal annual sick leave allotment” shall mean the amount of annual sick leave granted by a TRS employer to its teachers under a collective bargaining agreement or employment policies including any personal days which may be used as sick leave. 2. TRS rules provide for calculation of the employer penalty as follows: The member’s highest salary rate reported by the granting employer during the four-year sick leave review X the total normal cost rate applicable to the last fiscal year of contributing services X the portion of sick leave service credit attributed to sick days in excess of the normal annual allotment granted by that specific employer equals employer’s contribution. II. TRENDS IN NEGOTIATING END-OF-CAREER CREDITABLE EARNINGS INCREASES UNDER THE 6% CAP A. Typical Union Negotiation Proposals 1. 6% Salary Payments for 4-Year Period Before Retirement: This type of union proposal is designed to afford teacher-retirees the maximum creditable earnings increases they can receive during their final four school years prior to retirement without obligating the school district to pay a financial penalty payment to TRS for exceeding the 6% cap. Some union proposals extend the 6% annual compensation increases to a fifth or sixth year, arguing that the teacher’s significant advance notice of retirement assists the district in staff planning and the additional 6% salary enhancements do not violate the annual 6% statutory limit. District negotiators should be careful to avoid several potential pitfalls in this type of union proposal. First, the union’s proposed language should be reviewed carefully to make sure that the district 4 will not be obligated to pay teacher-retirees the 6% salary increases in addition to the teacher’s annual salary and step increase, and any extra-duty stipend payments or other payments considered creditable earnings by TRS. Second, the District should recognize that any “front-end” compensation payments to teacher-retirees which exceed 6% per year in the fifth or sixth year prior to the teacher’s retirement could result in an employer penalty payment obligation if the teacher subsequently decides to retire before their indicated retirement date and completion of the four school years prior to retirement. This could occur for a variety of reasons, including the teacher’s disability, changes in personal circumstances, a spouse’s early retirement or other reasons. 2. Retain Existing 20% Salary “Kickers” Before Retirement: Some union proposals seek to retain the existing retirement benefits provisions which often provide 20% per year salary increases pre-retirement. Some union proposals to retain an existing 20%-20% pre-retirement benefit include a provision that the teacher will be responsible for any employer financial penalty payments to TRS, with the supporting rationale that the 20% salary increases will increase the teacher’s retirement annuity and provide the teacher-retiree with greater overall retirement compensation to offset the cost of the TRS penalty payment. District negotiators should be wary of this type of proposal for several reasons: a. The statutory 6% earnings cap legislation provides a legitimate rationale for the employer to reject continuation of any retirement benefits provisions which would require the employer to pay an employer penalty payment to TRS; and b. TRS has consistently taken the position that teachers cannot be required to pay an employer’s one-time ERO penalty payment to TRS and, most likely, would disallow teacher- retirees from being held responsible for any employer penalty payments for exceeding the 6% annual earnings cap. 3. 20% Per Year Salary “Bump” Pre-Retirement With Payments in Excess of 6% Paid Post-Retirement (“Chopping up a Pre- Determined Benefit”): Some union proposals seek to retain the 20% salary “bumps” in the existing teacher-retirement benefit plan, but postpone payment of 5 salary payments in excess of 6% until after the teacher’s effective retirement date in an attempt to avoid non-compliance with the 6% annual earnings cap. The union’s rationale for this retirement proposal is that it enables the teacher-retiree to receive the same total amount of retirement benefits without obligating the district to pay financial penalty payments to TRS for exceeding the 6% annual earnings cap.