If the remedy includes payment of wages for a period following a disputed termination of participating employment, the court order or compromise settlement does all of the following:
Directs the employer to rescind the termination date previously reported to the department and, if the employee is not to be reinstated, specifies the date on which the employee-employer relationship terminated, which date shall be treated as the termination date for Wisconsin retirement system purposes. This date may not be later than the effective date of the court order or compromise settlement.
Directs the employer to pay the employee all wages from the rescinded termination date to the date the employee returns to work or the new termination date reported under subd. 1.
as if the employee had been continuously employed throughout the period under the conditions of employment prevailing prior to the termination, except that the court order or compromise settlement may direct that wages be reduced by amounts earned from other sources and may identify a period of suspension for which wages are not paid.
The department may not consider any of the following payments as earnings:
A payment that results from resolution of a dispute over the employer's failure to hire a person. Any payment in such cases shall be considered by the department as a damage award. This paragraph does not exclude retroactive wages related to a participating employer's failure to hire a participating employee of that employer for another position, provided the court order or compromise settlement also directs that the employee's basic pay rate be permanently increased.
A payment directed by a court order or compromise settlement if either the specified hours of service or associated wages exceed the creditable service and earnings which would have been properly reported for the employee if the employee had been continuously employed through the period at issue under the conditions of employment prevailing prior to the dispute.
A payment directed by a court order or compromise settlement which purports to pay earnings in one annual earnings period which actually result from employment during another annual earnings period or a combination of annual earnings periods.
A payment for actual or constructive services rendered, or deemed to have been rendered, after termination of employment.
A payment directed by a court order or compromise settlement which is excluded from earnings under s. 40.02 (22) (b)
, Stats., including all of the following:
A payment which is other than wages or salary for personal services actually rendered to that participating employer by the participating employee, or which would have been rendered but for the disputed termination or suspension;
A payment, including a wage payment, made in return for, or in order to secure, the employee's resignation or termination from participating employment, whether immediately or at some specified time in the future, or to secure release from an unexpired contract of employment, including the employee's voluntary waiver of grievance rights under a collective bargaining contract. This subdivision does not prevent a remedy from including both a wage payment and a payment to secure the employee's agreement to other conditions, provided the court order or compromise settlement specifies the portion of the total payment that represents wages.
A lump sum payment for accumulated vacation, sick leave, or compensatory time, unless the payment is broadly applicable to the employees of the employer regardless of age, length of service or likelihood of employment termination.
A payment for damages, attorney fees, interest or penalties included in the court order or compromise settlement, regardless of whether the amount of the payment reflects previous salary levels.
A payment based on a change in the method of computing the base compensation of the employee during the last 5 years of employment, unless resulting from application of a broader change permitted under s. 40.02 (22) (b) 10.
A payment made in lieu of fringe benefits normally paid for or provided by the employer.
The department may not consider as earnings a payment for wages for a period during which the employee was an annuitant, or a payment made to a person whose Wisconsin retirement system account was closed by receipt of a benefit under s. 40.25 (1)
, or (2)
, Stats., on or before the effective date of the court order or compromise settlement. This subsection shall not be construed to affect a reinstatement as provided under s. 40.25 (5)
Except as provided in par. (b)
, if the court order or compromise settlement directs that the retroactive earnings to be paid first be reduced by amounts earned from other sources, the department shall determine the earnings to be credited in each annual earnings period based on the unreduced amount, subject to the limitations of section 415
of the internal revenue code and to sub. (5) (b)
. The department may determine the hours of service to be credited in each annual earnings period from data available to the department or by dividing the unreduced amount otherwise treatable as earnings in accord with this section for each affected annual earnings period by the rate of pay the department determines applied during the period under dispute.
If the employee has other participating employment during the disputed period, the department shall reduce the amount of earnings and service it credits under the court order or compromise settlement by the earnings and service resulting from the other participating employment.
ETF 20.12 Note
Example: An employee who normally earns $12.00 per hour in a full-time position works half-time in another participating position for $10.00 per hour during the disputed termination. In each week, the employee earns $200.00 and 20 hours of service. If the employee is made whole for wages and benefits under the compromise settlement and receives back wages of $480.00 per week for the period of termination, the department will credit only an additional $280 in earnings and an additional 20 hours of service for each week.
In cases of part-time participating employment, the department may increase the service and earnings credited under par. (b)
if the employee submits satisfactory evidence showing that the total earnings and service credited during the disputed period, if properly reported, would have been greater than those prevailing before the dispute.
Regardless of when payment to the employee actually occurs and regardless of whether payment is reported as taxable income in the year payment was made or by revising reports of taxable income for previous years, any payments considered as earnings under this section shall be treated for the purposes of the Wisconsin retirement system as earnings in the annual earnings period in which the earnings should normally have been paid.
Except as limited by sub. (10)
, resolution of any employment dispute between a participating employer and participating employee may include making additional contributions to the participant's account.
The department shall respond to reasonable requests by a participant or a participating employer to estimate the amount of additional contribution necessary to fund a benefit equivalent to a hypothetical Wisconsin retirement system benefit.
Regardless of the terms of a court order or compromise settlement, if the department finds that a contribution exceeds the limits on contributions to qualified pension plans established by the internal revenue code and regulations promulgated thereunder, as determined by the department, the department shall refuse to accept the contribution. If any excess contribution is accepted in error, the department shall refund or credit it as provided in s. 40.08 (6)
In order to establish the amount of an employee's reportable income for a specified year, as necessary to compute contribution limits, and in order to verify that payments requested to be considered as earnings under this section were reported as taxable income, the employee shall furnish to the department upon request proof of all taxable compensation received and all retirement contributions made to all retirement plans during each year at issue.
ETF 20.12 History
Cr., Register, July, 1997, No. 499
, eff. 8-1-97; correction in (6) made under s. 13.93 (2m) (b) 7., Stats., Register, July, 1999, No. 523
Upon request, the department shall prepare a written estimate of the cost of purchasing service under s. 40.285 (2)
, Stats., on an application form to be used for the purpose and send the application form to the participating employee. Anytime after the department receives a completed application and at least the minimum payment or authorization to transfer additional contributions required to accompany that application, the department may update and correct the calculation of the amount due as necessary, before finalizing the purchase of service credit.
Except as provided in subd. 3.
the application to purchase creditable service, on the form approved by the department, must be actually received at the department before the date the applicant terminated all participating employment covered by the Wisconsin retirement system.
The deadline for a part-time elected official whose date of separation from the last participating employer is determined under s. 40.23 (1) (am) 2.
, Stats., is the date the applicant terminated participating employment other than as a part-time elected official, or the date on which the applicant elected to waive further Wisconsin retirement system participation under s. 40.23 (1) (am) 2.
, Stats., whichever date is later.
ETF 20.17 Note
Note: The “Waiver of Part-Time Elected Service," form ET-4303, becomes effective on the day after its receipt by the department or, if more than one ET-4303 is being submitted, on the first day after the first waiver is received by the department.
If the department determines that the participant is ineligible to purchase service for which the participant has applied, the application shall be rejected and any payment previously received by the department shall be refunded as provided in par. (f)
The department shall reject an application which is not accompanied by a payment in one of the following forms:
Payment in full of the department's estimated cost of the service credit if the purchase is for a qualifying period, teacher improvement leave or previously uncredited service as a junior teacher or executive official under s. 40.285 (2) (c)
, Stats. Such payment may include authority to transfer 403(b) funds or additional contributions under s. 40.05 (1) (a) 5.
, Stats., already held by the department in order to make the purchase. A transfer of 403(b) funds must be authorized by the school district or other educational institution employer operating the plan under section 403
(b) of the internal revenue code.
In lieu of payment in full, the applicant may include at least 10% of the department's estimated cost of the creditable service with the application and arrange for the balance to be paid by a plan-to-plan transfer under s. 40.285 (5)
, Stats. Such transfer funds must be received within 90 days after receipt of the application or the application or the purchase will be treated under the payment shortfall provisions of s. 40.285 (5) (c)
, Stats., and par. (h)
Partial payment of the department's estimated cost of the service credit, but only if the purchase is for forfeited service or other governmental service, under s. 40.285 (2) (a)
The department may reject any application which 90 days after the date of application remains incomplete in any respect other than receipt of payment. If an application is rejected under this subdivision then the department shall refund any associated payment as provided by par. (f)
An application to purchase creditable service for forfeited service or other governmental service under s. 40.285 (2) (a)
, Stats., shall be rejected if the applicant does not have at least three continuous years of creditable service immediately preceding the date the completed application form is received by the department, with no break in service between the three continuous years and the application date.
Effect of purchasing service.
Buying creditable service under this section adds the amount of service purchased to the person's total creditable service for the purpose of calculating a formula annuity benefit under s. 40.23 (2) (b)
or (2m) (e)
, Stats., or making a formula annuity calculation in the same manner, including under s. 40.25 (1)
, 40.63 (8)
or 40.73 (1) (c)
, Stats. Buying creditable service has no retroactive effect, including but not limited to the following:
Buying creditable service does not undo any effects of the requirement that a person who takes a separation benefit must thereafter be treated as a new employee upon subsequent employment by a participating employer.
ETF 20.17 Note
See s. 40.25 (3)
Buying creditable service does not establish an earlier date of participation nor restore an account as though it had never been closed.
Buying creditable service does not restore or entitle the purchaser to any benefits or rights associated with being a participant in the Wisconsin retirement system, or a member of any predecessor retirement system, at the time the services for which credit is being purchased were actually performed.
Except as provided in s. ETF 50.50 (2) (b)
, buying creditable service does not establish creditable service in or for any particular annual earnings period or calendar year, or prior to any past date, or for purposes of measuring continuous years of creditable service.
ETF 20.17 Note
As a consequence of purchased service credits not establishing creditable service in or for any particular annual earnings period or calendar year, purchased service does not affect the denominator for the calculation of final average earnings in s. 40.02 (33) (a) 2.
, Stats., nor the amount of a person's creditable service in a particular annual earnings period for purposes of s. 40.23 (2m) (fm)
or 40.63 (1) (a)
, Stats., for example.
ETF 20.17 Note
Purchased service credit is included in the “creditable service" used to determine the normal retirement age and the maximum formula benefit for a protective occupation participant under ss. 40.02 (42) (a)
and 40.23 (2m) (b)
, Stats., respectively, as well as months of creditable service for reducing the actuarial adjustment under s. 40.23 (2m) (f) 2.
, Stats., and the reduction of duty disability benefits for service over 25 years under s. 40.65 (5) (a)
, Stats. Credit purchased under s. 40.285
, Stats., except under s. 40.285 (2) (b)
, Stats., also applies to the “creditable service" used to determine eligibility for creditable military service, group health, and post-retirement life insurance, under ss. 40.02 (15) (c)
, 40.02 (25) (b) 6. a.
, 6m. b.
and 40.72 (4) (b)
, Stats. Limitations on the use of purchased credit for other governmental service in particular are listed in sub. (4) (e) 5.
ETF 20.17 Note
Service purchased under s. 40.285
, Stats., shall be included with all other creditable service in the participant's account divided by a qualified domestic relations order pursuant to s. 40.08 (1m) (b)
, Stats., provided the application for the purchase was actually received by the department prior to the decree date, as that term is defined by s. 40.02 (18f)
, Stats. See s. ETF 20.35 (3) (d) 2.
ETF 20.17 Note
A person became a participating employee covered by the Wisconsin retirement system in 1995. The participant terminated employment in 1999 and took a separation benefit in 2000 thereby closing her Wisconsin retirement system account. She again became a participating employee on January 1, 2002, and later purchased all the service forfeited by taking the separation benefit in 2000. The years of service purchased are added to the participant's current service balance and are included in the creditable service used to calculate a formula annuity benefit under s. 40.23 (2) (e)
, Stats. However, for all Wisconsin retirement system purposes she is treated as a new participant as of January 1, 2002. Her account and benefit rights are not restored as though her account had never been closed.
ETF 20.17 Note
Example 2. A former member of the state teacher retirement system took a separation benefit in 1971. Subsequently buying creditable service for teaching services rendered in 1970 does not confer any present right to the minimum retirement age of 50 for teachers that was in effect in 1970.
ETF 20.17 Note
A former member of either the state or Milwaukee teacher retirement system before 1964 whose account was later closed by withdrawing member contributions as a member of either the combined or formula group, or by withdrawing both member and state deposits as a member of the separate group, does not reestablish that account by subsequently purchasing credit for the forfeited service. The former teacher is treated for all WRS purposes as a new employee upon returning to participating employment. Consequently, any benefits now paid to the participant are not being paid on the account of a December 31, 1963, member. However, nothing in this section shall be construed to prevent the Wisconsin department of revenue from interpreting s. 71.05 (1) (a)
, Stats., as it sees fit for its purposes.
Buying credit for service does not affect or restore earnings for any annual earnings period or for purposes of calculating a benefit or final average earnings.
ETF 20.17 Note
The purchase of the service for the qualifying period, teacher improvement leave, and previously uncredited service as a junior teacher or executive participating employee are all intended to be one-time purchases of the entire available credit with payment-in-full accompanying the application. Applications without full payment would generally be rejected. However, because a plan-to-plan transfer under s. 40.285 (5)
, Stats., is now an available payment option for all forms of creditable service purchase, the possibility exists that there will be a payment shortfall resulting in proration of the service purchased as provided by s. 40.285 (5) (c)
, Stats. This paragraph permits an additional creditable service purchase of the same type during the same calendar year, provided the participating employee remains otherwise eligible.
A person may not purchase credit for service to the extent that the effect would be to exceed the 1.0 year limit on creditable service for any annual earnings period. For purposes of this subdivision, notwithstanding par. (d) 4.
, the service for which the person wishes to purchase credit and all the person's other purchased service credits shall be treated as if credited under the Wisconsin retirement system or a predecessor retirement system in the annual earnings periods when the services were actually rendered. The person's current creditable service for an annual earnings period together with all previously granted service credits associated with that annual earnings period, including but not limited to purchased service credits as provided in this subdivision, shall first be subtracted from 1.0 year to determine the balance remaining, if any, for each annual earnings period that may be purchased under this section and s. 40.285
ETF 20.17 Note
Example 1. A participant earned 0.40 years of creditable service working for a participating employer during the 2004 annual earnings period. During the same annual earnings period, the participant worked 1,905 hours, the equivalent of one full year of creditable service, for another governmental employer not covered by the Wisconsin retirement system. Even if the participant is otherwise eligible to purchase credit for the other governmental service, no more than 0.60 years of service for the 2004 annual earnings period may be purchased.
ETF 20.17 Note
Example 2. A participant whose annual earnings periods are calendar years, earned 0.60 years of creditable service between January and May 2005 by working overtime. The participant then terminated and took a separation benefit, forfeiting the service. The participant then returned to participating employment in July and earned 0.58 years of creditable service for the remainder of 2005. Some years later, the participant meets the qualifications to purchase the forfeited service. The participant may not purchase credit for more than 0.42 years of the forfeited service.
Refunds may not be made for amounts under the threshold established by s. 40.285 (7)
, Stats. Refunds shall be made in the manner provided by s. 40.285 (6)
, Stats. Interest on refunds is subject to the provisions of s. 40.08 (6)
, Stats. No excess funds transferred to the department by a plan-to-plan transfer may be refunded directly to the participant. If the department refunds any payment taken from additional contributions under subd. 2.
, it shall restore the refunded amount to the additional account as if the transfer had not occurred. The following order of priority shall determine the sources of any refund due:
The participant's lump sum payment to the department. The refunded amount shall be paid directly to the participant.
Additional contributions transferred from the participant's after-tax additional contribution account. The amount refunded shall be transferred back to the participant's after-tax additional account.
Additional contributions transferred from the participant's tax sheltered additional contribution account. The amount refunded shall be transferred back to the participant's tax-sheltered additional account.
Funds transferred from another qualified retirement plan under s. 40.285 (5)
, Stats. When more than one qualified retirement plan was the source of transferred funds, the department shall determine the refunded amount to be returned to each qualified retirement plan.
Payments retained by the department shall be deposited in the participant's required contribution account under s. 40.04 (4) (a) 1.
, Stats. Except as otherwise provided in subd. 3.
, if the participant participates in the variable trust the payment shall be divided between the core and variable accounts in the same proportion as the participant's current contributions are so divided at the time that payment is received.
For interest crediting purposes, except as otherwise provided in subd. 3.
, all payments received to purchase creditable service including plan-to-plan transfer funds shall be treated as amounts received during the year in which the department actually receives the payment or transferred funds.
Notwithstanding subd. 2.
, for interest crediting purposes, funds transferred from the participant's voluntary employee additional contributions that were in the prior year's closing balance of the additional contribution account, including interest credited, when the transfer occurs shall retain that status so that the participant will not forfeit interest to be credited on the prior year's closing balance. Notwithstanding subd. 1.
, amounts transferred from a participant's additional contributions in the core investment fund to buy service shall remain in the core investment fund, and additional contributions transferred from the participant's variable additional contributions to buy service shall remain in the variable fund. Nothing in this subdivision shall be construed to affect an individual's variable cancellation rights under s. ETF 10.30 (5)
For any type of creditable service purchased under s. 40.285 (2)
, Stats., if the purchase includes a plan-to-plan transfer and the total amount received by the department is less that amount required for the purchase of the service, and the difference exceeds the threshold for corrections under s. 40.285 (7)
, Stats., then the department shall proceed under s. 40.285 (5) (c)
, Stats., and allow the participant 30 days to pay the difference. If the difference is not received within 30 days after notice is sent to the participant, the department shall complete the purchase, reducing the amount of service credit purchased to the credit that can be purchased by the payment actually received.
ETF 20.17 Note
See s. ETF 20.17 (3) (d)
for the required rules concerning how a forfeited service purchase is prorated when the participant forfeited service under more than one category of employment.
If the department determines that the actual cost of purchasing service under s. 40.285 (2)
, Stats., is greater than the amount estimated by the department for the participant, and the participant paid the estimated amount in full, then the participant shall be notified and allowed 30 days to either pay the balance due or withdraw the application, without prejudice. If the balance due or is not received prior to the deadline, then the department shall proceed under subd. 2. a.
, as appropriate.
When a plan-to-plan transfer made up part of the payment, the department shall proceed under the payment shortfall provisions of s. 40.285 (5) (c)
, Stats., except as otherwise provided by subd. 2. c.
When no plan-to-plan transfer is involved and subd. 2. c.
do not apply, or the participant made a timely request to withdraw the application, the department shall refund all amounts received as provided in par. (f)
If a Wisconsin retirement system annuity or lump sum in lieu of an annuity under s. 40.25 (1)
, Stats., is to be paid to the applicant, and the applicant so requests, the balance due shall be deducted from the lump sum or a subsequent monthly annuity payment payable. This subdivision paragraph does not apply if the balance due exceeds the amount of the benefit under s. 40.25 (1)
, Stats., or if the Department determines that the amount of the monthly annuity available for this deduction is insufficient.
If the application was for the purchase of credit for forfeited service or other governmental service, and subdivision paragraph c. does not apply, the department may complete a partial purchase as provided in sub. (3) (d)
or (4) (g)
No participant withdrawal or cancellation of application; exception.
The participant may not cancel or withdraw an application to purchase service credits once any payment has been received by the department, except under the circumstances specified in par. (h) 2. b.
Treatment of purchased service credit as pre-2000 or post-1999 service.
For purposes of computing formula annuity benefits under s. 40.23 (2m) (e)
, Stats., and the differing multipliers applicable to creditable service that was performed before January 1, 2000, and on and after that date, purchased service credits will be treated as provided in s. ETF 20.19 (2)
Words, phrases and terms used in this section shall have the same meanings as set forth in s. 40.02
, Stats., and s. ETF 10.01
. In addition, in this section:
“Current earnings" means the participant's earnings in the most recent complete annual earnings period, provided the participant was a participating employee for the full annual earnings period. If the participant was not a participating employee throughout the most recently ended annual earnings period, “current earnings" means the product of the participant's hourly pay rate on the date of application, multiplied by the number of hours the participant would reasonably be expected to be employed as a participating employee during the current annual earnings period, assuming that the participant would continue to be employed for the remainder of the current annual earnings period.
“Date of application" means the date the signed application on the form approved by the department for the purchase of the type of service in question is received by the department, as determined under s. ETF 10.82 (1)
ETF 20.17 Note
Note: The forms approved by the department for the purchase of service credits are “Application to Purchase Other Governmental Service," form ET-2205, “Qualifying Service Purchase Estimate/Application," form ET-4314, “Forfeited Service Purchase Estimate/Application" form ET-4315, “Uncredited Teaching Service Purchase Estimate/Application," form ET-4323. These are individually customized forms that reflect the department's estimate of the amount required from the participant for that particular purchase. In addition, where no standard form exists for the type of service purchase, customized estimates will be prepared by the department upon request. All forms and estimates can be obtained at no charge by writing to: department of employee trust funds, P.O. Box 7931, Madison, WI 53707-7931, or by calling (608) 266-3285 or toll free at (877) 533-5020. Forms should be requested at least four (4) weeks before the date the participating employee intends to apply, and well in advance of any anticipated termination of employment, to allow sufficient time for the department to calculate the personalized estimates of the cost.
“Money purchase balance" means the sum of the participant's employee required contributions and accrued interest, including accumulations resulting from purchases under this section, plus an amount from the employer reserve equal to the employee required accumulation less any amount resulting from purchases under s. 40.285 (2) (b)
, Stats., and interest accumulated on those amounts.