The State Worker

Many states, including California, may have more legal wiggle room to alter retirement promises for current employees than commonly thought, according to a new survey of state and local pensions by the Center for Retirement Research at Boston College.

Researchers Alicia H. Munnell and Laura Quinby conclude that "the protection accorded pension benefits is less embedded in state constitutions and more open to interpretation than commonly perceived." If state courts and legislatures narrow "the current definition of the employer-employee contract to establish that the contract is created when the employee performs the service," then it would become possible to reduce retirement benefits for current workers prospectively, the authors conclude.

Munnell and Quinby say only three states - Alaska, Illnois and New York - have constitutions that clearly protect public pensions for current workers both retrospectively and prospectively. Arizona's constitution protects pensions "past and maybe future," while those in Hawaii, Louisiana and Mississippi protect only benefits that have been accrued.

California and most states consider pensions legal contracts protected from any laws that impair them. When the contract is considered to take effect is key. Conventional wisdom says that pension contracts in California and other states take effect from the first day of employment.

Munnell said in a recent interview with Pensions & Investments that she expects more states will attempt to redefine their pension obligations once courts rule on recent laws that did so in Rhode Island and New Jersey.

For the vast majority of states, however, changing future benefits for current employees is extremely difficult ...

In the end, however, the ability to modify pensions in these states hinges on when the contract is deemed to exist. States where the contract is found to exist at the time a worker is hired have little freedom to change benefits. States where the contract is found to exist at retirement have considerably more flexibility.

Each state would have to define that for itself, the authors conclude, through both the courts and their legislatures.

Pensions & Investments reports that Munnell thinks more states will move to alter pension benefits for current workers if the courts uphold changes to current employees' pensions enacted in New Jersey and Rhode Island.
Legal Constraints on Changes in State and Local Pensions