After years of delays in implementation, New York State recently opened registration for the Secure Choice Savings Program (“SCSP”), which creates new retirement savings requirements for certain employers with New York employees. Despite the rollout of official guidance, some questions remain concerning how the program will operate.
Background on the Secure Choice Savings Program
The New York State SCSP was established in 2021 by New York State General Business Law Article 43. The SCSP creates a system for eligible private‑sector employees to be automatically enrolled in payroll contributions to a Roth IRA. The SCSP is overseen by a Board, which is responsible for, among other things, making decisions about the investment options available to participants of the program. The Board has selected Vestwell to act as administrator of the SCSP.
An employer is required to register and facilitate employee participation in the SCSP if they:
- Employ 10 or more employees at all times in the previous calendar year in the State; and
- Have not offered a qualified retirement plan (e.g., plans qualified under Code Sections 401(a), 401(k), 403(a), 403(b), 408(k), 408(p), or 457(b)) in the past two years; and
- Have been in business for at least two years.
Participating employers are not required to contribute to the program on behalf of employees, but have responsibility for: setting up payroll systems to facilitate the program; communicating the program to employees using materials developed by the State; and automatically enrolling employees or implementing their contribution elections.
Rollout Guidance
Current SCSP guidance states that the program will send a series of emails or letters to eligible employers when it is time to register. These communications will include an Access Code, registration deadline, and instructions. To register, the employer needs their EIN and the Access Code, which will be provided to them via email or letter. The employer will then provide their preferred contact information, a list of their employees, and their payroll system/provider information. Following the initial registration process, the employer will be responsible for keeping their employees’ payroll contributions and the eligible employee list up to date. The registration deadlines are based on the number of New York employees that a business has, as listed below.
- 30+ Employees, Register by March 18, 2026
- 15 to 29 Employees, Register by May 15, 2026
- 10 to 14 Employees, Register by July 15, 2026
Employees of a participating employer are eligible if they are at least 18 years of age and have earned taxable wages in New York from the employer. From the employee’s perspective, the SCSP operates on an opt-out basis – employees are automatically enrolled at a contribution rate of 3% of wages unless they opt out within 30 days or elect a different contribution percentage. Participants can select among various investment options, with the default being a target-date retirement fund. Annual contributions are subject to the federal limits for Roth IRAs, which are $7,500 for 2026, with employees aged 50 or older eligible to contribute an additional $1,100 catch-up amount.
Opt-Out Procedures
On December 4, 2025, representatives from the State and Vestwell presented an introductory virtual webinar to provide information about the SCSP’s implementation. Representatives at the webinar stated that anyone whom the SCSP determined to be non-exempt should have already received an Access Code. However, no written confirmation of this statement is available on the SCSP or Vestwell websites. There remains uncertainty concerning whether all Access Codes have been issued to employers who are required to register for the SCSP, and it is possible some employers who are required to participate have not yet been contacted.
Nonetheless, an employer that has received an Access Code but already offers a qualified retirement plan or has fewer than 10 employees can certify its exemption from the SCSP. To certify exempt status, the employer will need the company’s EIN and the Access Code provided in the invitation to register. The employer can then go to the SCSP website, input the Access Code, select the type of retirement plan the company offers that qualifies them for an exemption, and certify their exemption.
Lingering Questions
Taken together, the existing guidance remains incomplete. For example, there is no information available detailing how the contacts were chosen to receive the Access Codes, raising the potential for some employers being unaware of the application of the program to their company. It is further unclear whether exempt employers should take the affirmative step of certifying their exemption, and whether that is even possible if the company has not received an Access Code.
While the SCSP’s apparent reliance on EINs suggests that related employer “controlled group” concepts are not being applied to determine an employer’s exempt or non-exempt status, it remains an open question. Presumably a company participating in a related employer’s qualified plan, a professional employer organization’s (or PEO’s) qualified plan or other multiple employer plan (or MEP) would have a basis for exemption from the SCSP, but it would be gratifying to have express guidance.
Hodgson Russ will continue to monitor the SCSP guidance for future updates.
For more information or to seek assistance with questions regarding New York Secure Choice Savings Program compliance, please contact any member of the Hodgson Russ Employee Benefits Practice.
Sources for Further Information:
https://www.nysenate.gov/legislation/laws/GBS/A43 https://newyorksecurechoice.com/
https://marcom.vestwell.com/program-description/en/newyorksecurechoice.pdf
https://newyorksecurechoice.zendesk.com/hc/en-us/sections/31342892921367-Employer-FAQs
Disclaimer
This blog is a form of attorney advertising. Hodgson Russ LLP provides this information as a service to its clients and other readers for educational purposes only. Nothing in this client alert should be construed as, or relied upon, as legal advice or as creating a lawyer-client relationship.
