National Border Patrol mailing list to distribute general information to our members. The list can be subscribed to at http://eepurl.com/KatiX
A letter has been mailed to the last known address for all members concerning a lawsuit related to pay violations. If you did not receive the letter, then that means you have not updated your mailing address with AFGE, which you can do by going to the AFGE website. Included with this message is a copy of the letter.
The law firm of Woodley & McGillivary has extensive experience and success in recovering pay for federal workers, including cases on behalf of Border Patrol agents to recover FLSA pay, hazardous duty pay, and AUO. The NBPC is confident that Woodley & McGillivary will successfully recover any monies related to this matter.
The National Border Patrol Council supports this lawsuit because we believe that the Agency has committed extensive violations of the law that have led to a widespread loss of pay for agents.
New technique to smuggle drugs increasing along the border
Posted: Feb 03, 2014 9:36 PM PST Updated: Feb 10, 2014 8:51 AM PST
By SEAN REILLY | Comments
At Customs and Border Protection, labor and management agree that it’s time to change a decades-old old system for providing overtime pay to Border Patrol agents who work irregular hours. They are at odds, however, on what to do in the meantime.
“What worked 40 years ago doesn’t work for today’s operational needs and threats,” Brandon Judd, president of the National Border Patrol Council, the union representing some 16,500 agents, said at a Senate hearing earlier this week. “The real question is where do we go from here.”
The council has endorsed a bill introduced two months ago by Sens. Jon Tester, D-Mont., and John McCain, R-Ariz., that would replace “administratively uncontrollable overtime” (AUO) for Border Patrol agents with a three-tier pay system.
The Department of Homeland Security, which includes CBP, also wants to changes to the overtime system and is reviewing the legislation, according to Catherine Emerson, DHS chief human capital officer. Emerson testified at the same Tuesday hearing of the Senate Homeland Security and Governmental Affairs subcommittee on the federal workforce.
One day earlier, the department acted to suspend the use of AUO by some headquarters staff, full-time training instructors and other employees whom internal investigators decided were inappropriately receiving the extra pay, Emerson said. AUO is supposed to be used by field agents who work unpredictable and irregular hours.
The step came amid an internal review after an outside investigation last year found that some workers at Customs and Border Protection headquarters were routinely tacking on two hours of AUO each day and doing little, if any, work during that time. The suspension will affect an estimated 900 of as many as 28,000 employees who had been receiving the overtime pay, Emerson said.
While the review is continuing, “this was an interim measure that [DHS Secretary Jeh Johnson] felt needed to be taken right away,” Emerson said.
A DHS spokesman later declined to release a copy of Johnson’s memo spelling out the changes. In a follow-up email, Acting CBP Commissioner Thomas Winkowski told employees that that implementation would follow immediately or following consultation with union leaders. Other forms of overtime and premium pay will not be affected, Winkowski said, adding that he knows compensation is “a critical and personal issue” for employees and their families.
Congress created administratively uncontrollable overtime in 1966; within Homeland Security, CBP accounts for more than three-quarters of AUO spending, according to Emerson. For Border Patrol agents, AUO typically boosts their base pay by 25 percent.
But in a posting on its website, the Border Patrol council argued that the department’s current review could end AUO for employees in intelligence, public relations, checkpoint operations and other areas that provide “essential support” to field agents. In the future, CBP will have difficulty filling those jobs if they are deemed ineligible for overtime, the union said. In the field, the potential changes could also force the agency to add shifts, thus reducing the number of agents on the job at any one time.
“Under these extreme cuts, our agents will never be able to secure the borders and the American public will suffer,” the union said.
The first phase of the de-authorization announced yesterday specifically targeted areas that OSC identified in its 2008 and 2013 reports. The only exceptions were the Laredo North and Lyndon (now presumed to be Sumas) Washington, Border Patrol Stations. Due to the field activities being performed at the two stations, a waiver was requested, and the Union will learn more about the waivers this Friday. There is no doubt that these stations perform work that qualifies for AUO and therefore, de-authorization is not appropriate. As such, If DHS denies the waiver request, the Union will have no choice but to take appropriate action, which in turn will cost the Agency a substantial amount of money in lost wages and attorney’s fees when the Union prevails.
The OSC investigations have also caused DHS to look at all positions earning AUO and as Mrs. Emerson testified yesterday, a position-by-position analysis for all components is due by February 15. This position-by-position analysis will no doubt show that non-FLSA earning managers do not qualify for AUO. Due to DHS using OSCs interpretation of AUO, many essential support positions filled by bargaining unit employees will also not qualify for AUO, such as but not limited to: Training instructors, intel, vco, prosecutions, data management, sector details, public relations, liaison units, and checkpoint operations (unless working walk-arounds or similar activities). Although these positions provide essential support to the field, the Agency will have difficulty filling these positions in the future if they are now ineligible for AUO. Furthermore, DHS is putting together a list of acceptable activities allowable under their interpretation of the law that can be performed during AUO. In a nutshell, if it isn’t irregular and can be controlled by scheduling, it isn’t AUO.
Example: If agents on swing shift at station B are constantly chasing groups of illegal aliens and narcotics traffickers at the end of their shift that causes them to REGULARLY work AUO it is deemed a scheduling issue and the agency must adjust accordingly.
The ramifications this will have on the security of our nation’s borders are huge. The decision by DHS to interpret the AUO law based on the direction of OSC will be equivalent to the loss of at least 5,000 full time employees. In addition to the loss of 5,000 agents, the Agency will be forced to create at least four shifts at every station, which will reduce the number of agents in the field at any given time further causing the loss of an additional 1,500 agents and unnecessarily jeopardizing the safety of the agents. The total net loss will be 6,500 agents for a manpower intensive strategy.
Congress mandated that the Border Patrol maintain a workforce of at least 21,370 agents to cover all of the land borders of the United States. They did this knowing agents have always worked ten-hour days. Notwithstanding Congress’ intent, these hours will now be cut to eight. Under these extreme cuts, our agents will never be able to secure the borders and the American public will suffer. This is unacceptable, and we are working as hard as we can to convince the appropriate authorities that this is not the way to do business!