††††† 105 KAR 1:140. Employerís administrative duties.

 

††††† RELATES TO: KRS 16.583, 16.645(18), 18A.105, 61.546, 61.552(23), 61.560, 61.565, 61.569, 61.597, 61.598, 61.637(17), 61.675, 61.685, 61.702, 78.545(33), (37), 78.616, 78.625, 78.652, 26 U.S.C. 401(a)(17), (31), 403(b), 408(a), (b), 414(g)(6), 457(b), 3121(b)(10), Pub. L. 104-191, Pub. L. 111-5, Div. A, Title XIII, Div. B, Title IV, 26 C.F.R. 31.3121(b)(10)-2, 29 C.F.R. 519.2(a), 42 C.F.R. 423.504(b)(4)(vi), 45 C.F.R. Parts 160, 162, 164

††††† STATUTORY AUTHORITY: KRS 16.645(18), 61.565, 61.645(9)(e), 61.675, 78.545(33), 78.625

††††† NECESSITY, FUNCTION, AND CONFORMITY: KRS 61.645(9)(e) requires the Board of Trustees of the Kentucky Retirement Systems to promulgate administrative regulations necessary or proper in order to carry out the provisions of KRS 16.505 to 16.652, 61.510 to 61.705, and 78.510 to 78.852. Employers participating in the Kentucky Employees Retirement System, County Employees Retirement System and State Police Retirement System are required by KRS 16.645(18), 61.565, 61.675, 78.545(33), and 78.625 to make contributions to the retirement systems, to report creditable compensation to the retirement systems and other information that the Board of Trustees may require, and perform other duties and responsibilities as participating employers. 26 U.S.C. 401(a)(17) places a limit on the amount of creditable compensation on which contributions may be made. This administrative regulation sets out the reporting requirements for all participating agencies.

 

††††† Section 1. (1) Each employer shall submit the reports required under KRS 61.675 and KRS 78.625 electronically using the secure Kentucky Retirement Systemsí Employer Self Service Web site by:

††††† (a) The Enter Report Details Module; or

††††† (b) Uploading an electronic file that meets the requirements of the Employer Contribution Record Layout. The employer shall submit a test file to the retirement systems, which shall be reviewed for compliance with the requirements of the Employer Contribution Record Layout. If the test file is in compliance with the requirements of the Employer Contribution Record Layout, the retirement systems shall certify the electronic file and inform the employer of the month when the employer may begin using the electronic file for submitting reports. If the test file is not in compliance with the requirements of the Employer Contribution Record Layout, the retirement systems shall inform the employer of the needed corrections to the test file. The employer shall not submit a report by electronic file pursuant to this subsection until the test file is certified by the retirement systems.

††††† (2) The retirement systems shall notify each employer of the Web address of the secure Kentucky Retirement Systemsí Employer Self Service Web site and shall notify each employer if the Web address of the secure Kentucky Retirement Systemsí Employer Self Service Web site changes.

††††† (3) Each employer shall submit the contributions required by KRS 61.675 and KRS 78.625:

††††† (a) Electronically using the secure Kentucky Retirement Systemsí Employer Self Service Web site;

††††† (b) By mailing or hand delivering a check;

††††† (c) By the eMARS system maintained by the Finance and Administration Cabinet; or

††††† (d) By wire transfer.

††††† (4) The employer shall report all creditable compensation paid during a month by the tenth day of the following month.

††††† (a) The employer shall designate the month to which the creditable compensation should be applied if it is not the month for which the employer is reporting and if the month the creditable compensation was earned is the month in which the employee:

††††† 1. Became employed;

††††† 2. Became eligible to participate in one of the systems administered by Kentucky Retirement Systems;

††††† 3. Was transferred to hazardous coverage from nonhazardous participation;

††††† 4. Was transferred from hazardous coverage to nonhazardous participation;

††††† 5. Terminated from employment; or

††††† 6. Became ineligible to participate in one (1) of the systems administered by Kentucky Retirement Systems.

††††† (b) If the employee is paid creditable compensation in a lump sum or nonrecurring payment, the employer shall designate the reason for the lump sum or nonrecurring payment.

††††† 1. If the lump sum or nonrecurring payment was earned during a specific time period, the employer shall designate the time period during which the lump sum or nonrecurring payment was earned.

††††† 2. If the employer fails to designate a specific time period during which the lump sum or nonrecurring payment was earned, the payment shall be considered a lump sum bonus pursuant to KRS 16.505(8), 61.510(13), or 78.510(13).

††††† (5) The provisions of subsection (1) of this section shall not apply to the Kentucky Personnel Cabinet or agencies that are reported by the Kentucky Personnel Cabinet.

††††† (6) Each employer shall report employees who are regular full-time employees as defined by KRS 61.510(21) and 78.510(21) and shall remit employer and employee contributions for those employees.

††††† (7) If an employer fails to withhold from an employeeís creditable compensation the full amount of contributions due from the employee in accordance with KRS 16.583, 61.560, 61.597, or 61.702:

††††† (a) The retirement systems shall notify the employer of the additional amount of employee contributions due from the employee;

††††† (b) The employer shall withhold the additional contributions due from the employee in accordance with KRS 16.583, 61.560, 61.697, or 61.702 from the employeeís creditable compensation and remit the additional contributions to the retirement systems;

††††† (c) If the employee is no longer employed by the employer, the employer shall notify the retirement systems and the retirement systems shall refund the contributions submitted by the employer on behalf of the employee to the employer, which shall withhold the applicable taxes from the contributions and remit the remaining money to the employee; and

††††† (d) If the contributions are refunded in accordance with paragraph (c) of this subsection, then that service credit shall be omitted service in accordance with KRS 61.552(23).

††††† (8) Each employer shall report employees who are not regular full-time employees as defined by KRS 61.510(21) and 78.510(21), but shall not remit employer or employee contributions for those employees unless required to do so pursuant to KRS 61.680(6), except:

††††† (a) Student employees of public universities participating in the Kentucky Employees Retirement System who are enrolled as full-time students in a course of study at the university and who are exempt from FICA withholding pursuant to 26 U.S.C. 3121(b)(10) and 26 C.F.R. 31.3121(b)(10)-2; and

††††† (b) Student employees of public universities participating in the Kentucky Employees Retirement System who are enrolled as full-time students in a course of study at the university and are classified as full-time students throughout the fiscal year pursuant to 29 C.F.R. 519.2(a).

††††† (9)(a) An employer participating in Kentucky Employees Retirement System or County Employees Retirement System shall not classify an employee in more than one (1) non-participating position status during the fiscal year, except an employer participating in the County Employees Retirement System may classify an employee as probationary pursuant to KRS 78.510(21)(d) in the same fiscal year that the employer classifies the employee as seasonal, emergency, or part-time.

††††† (b) An employer participating in the Kentucky Employees Retirement System or the County Employees Retirement System shall not change an employeeís position status from full-time to seasonal, temporary, or interim in the same fiscal year.

††††† (c) An employer shall not classify an employee as a seasonal employee pursuant to KRS 61.510(21)(a) or 78.510(21)(a) unless the duties of the job can only be performed during a defined time period during a fiscal or calendar year. If the employer classifies an employee as seasonal and the employee is terminated after the defined time period during a fiscal or calendar year, there shall be a three (3) calendar month break in employment before the employer may again classify the employee as a seasonal employee, except for employers that are school boards. If an employer that is a school board classifies an employee as seasonal and the employee is terminated after the defined time period during a fiscal or calendar year, there shall be a six (6) calendar month break in employment before the employer may again classify the employee as a seasonal employee.

††††† (d) If an employer violates the provisions of this subsection, the retirement systems shall determine if the employee worked or averaged the necessary hours to be in a regular full-time position as provided in KRS 61.510(21) or 78.510(21). If the employee worked or averaged the necessary hours to be in a regular full-time position as defined by KRS 78.510(21), the service credit shall be omitted service in accordance with KRS 61.552(23).

 

††††† Section 2. (1) Each employer shall submit electronic mail to the retirement systems by logging on to the Kentucky Retirement Systemsí secure electronic mail server.

††††† (2)(a) If an employer submits personal information about its employees to the retirement systems in an unsecure electronic format or submits personal information regarding its employees intended to be submitted to the retirement systems to another person or entity by hand delivery, mail, fax, or in an electronic format; the employer shall notify affected employees in writing of the disclosure of personal information and provide information regarding obtaining credit reports.

††††† (b) Personal information includes the memberís first name or first initial and last name in combination with the memberís:

††††† 1. Social Security number;

††††† 2. Driverís license number;

††††† 3. Personal Identification Number permitting access to the memberís account; or

††††† 4. Medical Information.

††††† (c) The retirement systems shall notify the employer of a disclosure upon discovery.

††††† (d) The employer shall notify the retirement systems of a disclosure upon discovery.

††††† (e) The employer shall submit a draft of the written notification to be made to affected employees to the retirement systems for approval or denial.

††††† (f) The employer shall submit copies of the written notifications made to affected employees to the retirement systems after the notifications have been made.

††††† (g) If the retirement systems is required by federal or state law to provide notification to affected members about the employerís disclosure of personal information or if the retirement systems determines that it should provide the notification to its affected members because of the nature or magnitude of the employerís disclosure, the employer shall reimburse the retirement systems for its costs in notifying members affected by the employerís disclosure.

††††† (h) In transmitting any medically related personal information, the employer shall comply with all statutes and regulations comprising the Health Insurance Portability and Accountability Act of 1996 "HIPAA", Pub.L. 104-191 and the Health Information Technology for Economic and Clinical Health Act "HITECH", Pub.L. 111-5.

††††† (i) Each employer shall execute a data use agreement with retirement systems.

 

††††† Section 3. (1)(a) The retirement systems shall submit an invoice to employers for any payments owed to the retirement systems, which were not paid through the normal monthly reports.

††††† (b) The employer shall remit payment to the retirement systems by the due date provided on the invoice.

††††† (2) The retirement systems may offset funds owed by the employer to the retirement systems with funds owed to the employer by the retirement systems.

 

††††† Section 4. (1) An employer shall pay interest at the rate adopted by the board for any creditable compensation paid as a result of an order of a court of competent jurisdiction, the Personnel Board, or the Human Rights Commission or for any creditable compensation paid in anticipation or settlement of an action before a court of competent jurisdiction, the Personnel Board, or the Human Rights Commission including notices of violations of state or federal wage and hour statutes or violations of state or federal discrimination statutes.

††††† (2) The interest shall be assessed from the time period for which the creditable compensation has been reinstated.

 

††††† Section 5. If an employer refuses to provide the retirement systems access to records or information requested in accordance with KRS 61.685 or does not respond to a request for information or records by the retirement systems, the retirement systems may, if appropriate, hold all payments of:

††††† (1) Any funds due to the employer; or

††††† (2) Refunds or initial retirement allowances to any employee or former employee of the employer whose refund or retirement may be affected by the records or information requested by the retirement system.

 

††††† Section 6. (1) Effective July 1, 1996, and before July 1, 2002, the creditable compensation on which contributions are reported shall not exceed the maximum annual compensation limit contained in 26 U.S.C. 401(a)(17), $150,000, as adjusted for cost-of-living increases under 26 U.S.C. 401(a)(17)(B). The retirement system shall notify employers of the maximum annual compensation limit. Each employer shall report contributions on all creditable compensation up to the maximum annual limit. Once an employee's creditable compensation has reached the maximum annual limit, the employer shall continue to report the employee's creditable compensation but shall not report any further employer or employee contributions on the employee's creditable compensation. If excess contributions are erroneously reported, the retirement system shall refund the excess contributions to the employer for distribution to the employee after making payroll deductions in accordance with federal and state law.

††††† (2) Effective only for the 1996 plan year, in determining the compensation of an employee eligible for consideration under this provision, the rules of 26 U.S.C. 414(g)(6) shall apply, except that in applying these rules, the term "family" shall include only the spouse of the member and any lineal descendants of the employee who have not attained age nineteen (19) before the close of the year.

††††† (3) Effective with respect to plan years beginning on and after July 1, 2002, a plan member's annual compensation that exceeds $200,000 (as adjusted for cost-of-living increases in accordance with 26 U.S.C. 401(a)(17)(B)) shall not be taken into account in determining benefits or contributions due for any plan year. Annual compensation shall include compensation during the plan year or any other consecutive twelve (12) month period over which compensation is otherwise determined under the plan (the determination period). The cost-of-living adjustment in effect for a calendar year shall apply to annual compensation for the determination period that begins with or within the calendar year. If the determination period consists of fewer than twelve (12) months, the annual compensation limit shall be an amount equal to the otherwise applicable annual compensation limit multiplied by a fraction, the numerator of which is the number of months in the short determination period, and the denominator of which is twelve (12). If the compensation for any prior determination period is taken into account in determining a plan member's contributions or benefits for the current plan year, the compensation for this prior determination period shall be subject to the applicable annual compensation limit in effect for that prior period.

††††† (4) A participating member may pay contributions for the creditable compensation over the maximum annual compensation limit for the years used to determine the member's final compensation for purposes of retirement if:

††††† (a) The member's creditable compensation has exceeded the maximum annual compensation limit contained in 26 U.S.C. 401(a)(17) in years prior to the fiscal year beginning July 1, 2002;

††††† (b) The member has filed a notification of retirement; and

††††† (c) The excess creditable compensation is within the maximum annual compensation limit applicable in 2002-2003. Upon receipt of employee contributions, the retirement systems shall bill the employer for the employer contributions on the excess creditable compensation, and the employer shall remit the employer contributions to the retirement systems. The excess shall only be included in retirement calculations if both the employee and employer have paid their respective contributions.

 

††††† Section 7. (1) For members retiring on or after January 1, 2014, but prior to July 1, 2017, the retirement systems shall determine if annual increases in a memberís creditable compensation greater than ten (10) percent occurred over the memberís last five (5) fiscal years of employment.

††††† (a) For each of the memberís last five (5) fiscal years of employment, the retirement systems shall multiply the memberís creditable compensation for the previous fiscal year by 110 percent. If the memberís creditable compensation in any of his or her last five (5) fiscal years of employment is greater than the memberís creditable compensation from the previous fiscal year multiplied by 110 percent, the retirement systems shall determine that an annual increase in the memberís creditable compensation greater than ten (10) percent has occurred.

††††† (b) For purposes of performing the calculations in paragraph (a) of this subsection, the memberís creditable compensation shall be annualized by dividing the memberís creditable compensation for the fiscal year by the number of months of service credit, and multiplying by twelve (12).

††††† (2) If the retirement systems determine that the member received annual increases in creditable compensation greater than ten (10) percent over his or her last five (5) fiscal years of employment, the retirement systems shall send written notice to the memberís last participating employer of the retirement systemsí determination that the member has experienced annual increases in creditable compensation greater than ten (10) percent over the memberís last five (5) fiscal years of employment, and the amount of the additional actuarial cost to the retirement systems attributable to the increases.

††††† (3) If the employer believes that the annual increases in creditable compensation greater than ten (10) percent over the memberís last five (5) fiscal years of employment was due to a bona fide promotion or career advancement, the employer shall file a Form 6481, Employer Request for Post-Determination of Bona Fide Promotion or Career Advancement, for a determination that the annual increases in creditable compensation greater than ten (10) percent over the memberís last five (5) fiscal years of employment were due to a bona fide promotion or career advancement. The Form 6481 shall be filed within sixty (60) days of the date on the notice. If the retirement systems had previously provided a determination that a change in position or hiring of the member would be a bona fide promotion or career advancement, the employer shall submit the determination and provide documentation that the increase in creditable compensation for that fiscal year was due to the employer implementing the proposed change in position or hiring.

††††† (4) The employer shall provide any additional information requested by the retirement systems.

††††† (5) The retirement systems may require the employer to make certifications regarding the information and documentation submitted.

††††† (6) In determining if a change in position or hiring was a bona fide promotion or career advancement, the retirement systems shall consider the factors listed in KRS 61.598(1)(a).

††††† (7) The retirement systems shall issue a final administrative decision in writing informing the employer whether the annual increases in creditable compensation greater than ten (10) percent over the memberís last five (5) fiscal years of employment were due to a bona fide promotion or career advancement.

††††† (8) If the employer fails to submit a Form 6481, Employer Request for Post-Determination of Bona Fide Promotion or Career Advancement, within sixty (60) days of the date on the notice, the employer shall pay the additional actuarial cost to the retirement systems attributable to annual increases in creditable compensation greater than ten (10) percent over the memberís last five (5) fiscal years of employment.

††††† (9) If the employer disagrees with the final administrative decision by the retirement systems, the employer shall file a written request for an administrative hearing pursuant to KRS Chapter 13B within thirty (30) days of the date on the final administrative decision. The hearing shall be limited to the issue of whether the retirement systems correctly determined that the annual increases in the memberís creditable compensation greater than ten (10) percent were not due to a bona fide promotion or career advancement.

††††† (10) If the employer fails to file a written request for administrative hearing within thirty (30) days of the date on the final administrative decision, the employer shall pay the additional actuarial cost to the retirement systems attributable to annual increases in creditable compensation greater than ten (10) percent over the memberís last five (5) fiscal years of employment.

††††† (11) The retirement systems shall issue an invoice to the last participating employer representing the actuarial cost to the retirement systems attributable to annual increases in creditable compensation greater than ten (10) percent over the memberís last five (5) fiscal years of employment. The employer may request that the retirement systems allow the employer to pay the cost over a period, not to exceed one (1) year, without interest and the retirement systems shall establish a payment plan for the employer.

††††† (12) If the member was employed by more than one (1) participating employer when the member retired, the actuarial cost to the retirement systems attributable to annual increases in creditable compensation greater than ten (10) percent over the memberís last five (5) fiscal years of employment shall be divided equally among the memberís last participating employers.

††††† (13) An employer who is required to pay the additional actuarial cost pursuant to KRS 61.598 shall be treated as a participating employer in the system to which the employer is required to pay the additional actuarial cost solely for purposes of making the payment required pursuant to KRS 61.598.

 

††††† Section 8. (1) For members retiring on or after January 1, 2018, the retirement systems shall determine if annual increases in a memberís creditable compensation greater than ten (10) percent occurred over the memberís last five (5) fiscal years of employment.

††††† (a) For each of the memberís last five (5) fiscal years of employment, the retirement systems shall multiply the memberís creditable compensation for the previous fiscal year by 110 percent. If the memberís creditable compensation in any of his or her last five (5) fiscal years of employment is greater than the memberís creditable compensation from the previous fiscal year multiplied by 110 percent, the retirement systems shall determine that an annual increase in the memberís creditable compensation greater than ten (10) percent has occurred.

††††† (b) The fiscal year immediately preceding the memberís last five (5) fiscal years shall be used for comparison to determine if an increase in creditable compensation greater than ten (10) percent occurred in the initial fiscal year of the memberís last five (5) fiscal years.

††††† †(c) For purposes of performing the calculations in paragraph (a) of this subsection, the memberís creditable compensation shall be annualized by dividing the memberís creditable compensation for the fiscal year by the number of months of service credit, and multiplying by twelve (12).

††††† (2) The member shall receive a refund of all pre-tax and post-tax member contributions and interest directly attributable to the reduction in creditable compensation.

††††† (a) Pre-tax member contributions shall be refunded to the member by the employer who picked-up the contributions.

††††† (b) Post-tax member contributions shall be refunded to the member directly from the retirement systems.

††††† (c) Interest earned on pre-tax and post-tax member contributions shall be refunded to the member directly from the retirement systems.

 

††††† Section 9. (1) If the retirement systems determine that the member received annual increases in creditable compensation greater than ten (10) percent over the memberís last five (5) fiscal years of employment, the retirement systems shall send the memberís employer the Form 6487, Request for Member Pension Spiking Exemption Amounts.

††††† (a) Pursuant to KRS 16.645, 61.675, and 78.545, the employer shall furnish the information required by the retirement systems in the discharge of its duties. The employer shall complete the Form 6487 in its entirety and provide supporting documentation.

††††† (b) The employer shall submit a completed Form 6487 at the retirement office within sixty (60) days from the date the Form 6487 was mailed. If the employer fails to submit a completed Form 6487 within that sixty (60) day time period, Kentucky Retirement Systems shall issue a final administrative decision and provide adjustment correspondence to the member.

††††† (2) If the employer believes that the annual increases in creditable compensation greater than ten (10) percent over the memberís last five (5) fiscal years of employment was not due to a bona fide promotion or career advancement, a lump-sum payment for compensatory time, a lump-sum payment made pursuant to alternate sick leave, leave without pay, overtime attributable to a state or federally funded grant, or overtime attributable to a state of emergency, the employer shall indicate on the Form 6487 that none of the listed exemptions are applicable.

††††† (a) The employer shall report any increases in creditable compensation directly attributable to a lump-sum payment for compensatory time, a lump-sum payment made pursuant to alternate sick leave, or leave without pay during the employerís normal monthly reporting. If, upon review of the Form 6487, the employer believes that adjustments to the reported salaries are required, then the employer shall make those adjustments during the next monthly reporting cycle pursuant to KRS 16.645, 61.675, and 78.545.

††††† (3) If the employer believes that the annual increases in creditable compensation greater than ten (10) percent over the memberís last five (5) fiscal years of employment was due to a bona fide promotion or career advancement, overtime attributable to a state or federally funded grant, or overtime attributable to a state of emergency, the employer shall include the salary directly attributable to each exemption in Part 2 of the Form 6487.

††††† (a) If the employer believes that any of the salary is directly attributable to a bona fide promotion or career advancement, the employer shall complete Part 3 of the Form 6487.

††††† (b) The employer shall provide an explanation and documentation supporting the assertion that the increase in creditable compensation resulted from a bona fide promotion or career advancement.

††††† (c) In determining if a change in position or hiring was a bona fide promotion or career advancement, the retirement systems shall consider the factors listed in KRS 61.598(1)(a).

††††† †(4) The employer shall provide any additional information requested by the retirement systems.

††††† (a) The retirement systems may require the employer to make certifications regarding the information and documentation submitted.

††††† (5) If the increases in creditable compensation are not directly attributable to any of the listed exemptions and no reporting information needs to be corrected, then any annual increase in creditable compensation greater than ten (10) percent shall not be used to calculate the memberís retirement allowance.

††††† (6) The retirement systems shall not issue a refund to the employer for the excess employer contributions. The retirement systems shall utilize any employer contributions directly attributable to the reduction in creditable compensation to pay the unfunded liability of the pension fund in which the retiring member participated.

 

††††† Section 10. Incorporation by Reference. (1) The following material is incorporated by reference:

††††† (a) Form 6481, "Employer Request for Post-Determination of Bona Fide Promotion or Career Advancement", July 2015; and

††††† (b) Form 6487, "Request for Member Pension Spiking Exemption Amounts", February 2018.

††††† (2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Kentucky Retirement Systems, Perimeter Park West, 1260 Louisville Road, Frankfort, Kentucky 40601, Monday through Friday, from 8 a.m. to 4:30 p.m. (18 Ky.R. 922; Am. 1321; eff. 11-8-1991; 21 Ky.R. 1517; eff. 2-8-1995; 22 Ky.R. 1871; eff. 6-6-1996; 31 Ky.R. 382; 699; eff. 11-5-2004; 35 Ky.R. 970; 1719; eff. 2-6-2009; 38 Ky.R. 74; 492; 9-28-2011; 39 Ky.R. 1484; 1872; eff. 4-5-2013; 40 Ky.R. 360; 1090; 1701; eff. 3-7-2014; Amd 44 Ky.R. 1598, 1959; eff.4-6-2018.)