Pay Reform Issues

Pay Reform Issues

By Brandon Judd – NBPC National President


Many of you are being told that you had no say in the Pay Reform. That is largely incorrect, as explained below.


National Border Patrol Council President Brandon Judd has visited our sector on multiple occasions. He explained the facts of the Pay Reform in many musters and meetings. The presentations took approximately 30 minutes and afterwards he opened it up to Q&A. He answered every question that was asked. He told everyone that he was not there selling the Pay Reform but that he was there to explain the facts and to get feedback.


At the end of each muster or union meeting, he asked everyone present three questions.


-Who wants the NBPC to kill the pay reform?

-Who wants the NBPC to continue forward with the pay form?

-Who hasn’t had enough time to consider the information?


After he asked the questions, a vote was taken and counted from each muster and union meeting, and the overwhelming majority was in favor of continuing forward with the pay reform. There were some who voted against it, and there were some that voted that they hadn’t had enough time to consider the info, but the vast majority voted to continue forward. Notwithstanding the vote, Brandon gave out his personal email address and told everyone that if they changed their mind and if they wanted the NBPC to kill the pay reform they should email him and he would keep a running tally.


Brandon or a member of the NBPC has since been to every sector and has done the same informational presentation at musters. He has also held the same off-site union meetings throughout the country. The response everywhere has been the same.


To help add clarity to what’s already happened and why there is a serious sense of urgency, here are some key facts to consider about the Pay Reform. Please note that the NBPC notified all agents of what was coming well before it happened:


-The NBPC informed everyone that agents at the academy were going to be de-authorized the use of AUO.

-The NBPC informed everyone that all HQ personnel were going to be de-authorized the use of AUO.

-The NBPC informed everyone that second line supervisors and above were going to be de-authorized the use of AUO.

-The NBPC informed everyone that light duty agents would be de-authorized the use of AUO.

-The NBPC informed everyone that certain details would be de-authorized the use of AUO and that is currently happening as we speak.


In all cases the NBPC was correct. The NBPC is now telling us that CBP is drafting a new AUO policy and that AUO directives will be forthcoming. The policy and directives will ensure that AUO is used and administered in strict accordance with the law. As evidence, here are some excerpts from Deputy Secretary Mayorkas’ memorandum about the forthcoming policy and directives. Areas in bold are for emphasis.


“Given the poor state of the administration of AUO in many parts of the Department, I am now directing each of you to develop a comprehensive Component-specific plan to achieve and/or maintain full compliance with the law as explained in this memorandum.


Record keeping is a critical component of proper AUO management, both as a means to ensure that hours claimed as AUO are, in fact, payable as AUO and to ensure that employees earn AUO premium pay at the appropriate rate. Without adequate records, managers cannot adequately evaluate hours claimed or differentiate between uncontrollable overtime and overtime work that can be scheduled in advance. Moreover, in a time of limited budgets, sound record keeping permits Components to actively manage overtime expenditures, including by varying schedules, delaying or shifting work to minimize overtime, or staggering shifts.


In part because of insufficient record keeping, many Department supervisors and managers do not appropriately review the AUO hours claimed to ensure that the work performed was necessary overtime, that the amount of time claimed was appropriate, and that the duties could not have been scheduled in advance. Under OPM regulations, an employee’s appropriate rate of AUO premium pay depends on the average number of hours of irregular or occasional overtime work performed per week. When supervisors and managers approve claimed hours without appropriately reviewing these records, employees receive inflated rates of AUO pay based on the approval of work that should have been scheduled in advance.


A challenge of particular note is supervisors who routinely approve one-and-a-half to two hours of “administratively uncontrollable” overtime for the same employees performing the same tasks at the same time on the same days of the week. As a result of this pattern, AUO rates- which should fluctuate based on mission needs and the specific circumstances that arise during the duty day-generally remain steady, often at the maximum level, for much of the Department’s workforce. Work that is steady and consistent is not “uncontrollable” even under a commonsense understanding of the term, and therefore the AUO pay rates based, at least in part, on steady and consistent work exceed the actual AUO pay rates that employees should be receiving under statute and regulation.


Managers should not use AUO as a general overtime payment system to permit employees to complete any work that arises after normal working hours. Although AUO provides management a flexible tool for compensating employees with irregular and unpredictable responsibilities, it is not a shortcut to avoid proper workforce and overtime management and should not be used to routinely extend the workday.


Some Components, relying on a legacy policy created by the Department of Justice long before the Department of Homeland Security was established, “exclude” certain days, such as days spent on annual leave, from the required weekly calculation of the average number of AUO hours worked in a particular week. Because AUO premium pay rates depend on an employee’s weekly average of AUO hours worked, excluding non-work days from the weekly average calculation results in higher weekly AUO averages and may result in a higher rate of premium pay than would otherwise be appropriate.


Discipline Requirements. The Department will not tolerate overtime abuse. The DHS AUO Directive will establish clear policies governing AUO administration and make clear that failure to follow those policies will result in disciplinary action, to include disciplinary action for supervisors and managers who permit their employees to misuse AUO. The Directive will require all Components to update their tables of penalties to include sanctions for failure to comply with the laws, rules, and policies governing AUO.


As explained above, each of you is required to submit to my office and to the Office of the General Counsel your Component-specific plans to remedy the Department’s current noncompliance with AUO laws and regulations. Once we have received and reviewed your Component’s plan, the Human Capital Office and the Office of the General Counsel will coordinate with you to implement these plans and to monitor Component progress in achieving full compliance with law and regulation. If, in the course of developing and implementing these plans, you discover additional AUO administration problems not mentioned above, nothing in this memorandum should be read to prohibit you from taking any additional steps to remedy AUO misuse. Moreover, you are also free to decide that, after weighing the costs of reforming your Component’s AUO practices, the costs of proper AUO management outweigh the benefits of the AUO system and to eliminate the use of AUO in favor of other forms of overtime compensation for employees.”


As you can clearly see, there are more bad things on the horizon for AUO, and because it’s a legal issue and a budget issue, the best way to mitigate these things is to get a change in the law. The NBPC has been working on this for over four years. During those 4 years, including the 1 1/2 years Brandon has been NBPC president, they’ve been working as hard as possible to get the best possible Pay Reform.


The NBPC has not been doing this alone. In order to ensure they can meet with all possible congressional officials, the NBPC employs two high-powered but distinctly different lobbying firms. They’ve also been using as many of AFGE’s substantial resources as they can possibly use.


Even with the NBPC utilization of highly skilled professional lobbying and law firms, Congress has been very specific as to what it will take if the NBPC wants the legislation passed. Congress has told the NBPC that the law must be supported by both the Agency and the Union and that it MUST save money. And even though those two parameters have been met, the NBPC and the Agency are still facing an uphill battle to get this done.


Again, the NBPC has been 100% on the mark regarding what they’ve told everyone was going to happen. Read the excerpts from the Mayorkas memo. If you still feel AUO isn’t going away as we know it, you should fight the Pay Reform. No one likes the idea of losing FLSA, and if there was a way we could keep it, we would.


If someone in this Local has the answer on how to get Congress to pass a law that will allow us to continue with AUO as we know it, please ask him to explain it in detail. The Agency’s intentions with AUO have been made abundantly clear, so how exactly would he fix it?