NBPCborder

In an attempt to answer some of the questions related to the FLSA exemption and AUO excludability, the NBPC created the following Q&A. This was distributed to local presidents in advance of this posting.

Q1.     How will the agency’s recent decision to exempt BPA’s from FLSA impact me?

A1.     The impact will be financial in the form of a pay reduction (loss of FLSA payment) for Pay Period 8, the period covering April 19, 2015 – May 2, 2015. We anticipate that with the passage of a Technical Amendment that will be introduced by Senator McCain, all agents will recoup the loss of FLSA for both Pay Periods 8 and 9.

Q2.     I am a canine handler, and in Pay Period 8, for each day that I kept my assigned canine at home with me, I worked and claimed the additional hour of canine maintenance (17/17 pay) authorized under the negotiated and agreed upon Canine Policy. How will the exemption of FLSA affect those hours that I worked and claimed?

A2.     Due to the FLSA exemption, you will be paid overtime (code 21) for those hours worked and claimed in Pay Period 8. But as with the above answer, we anticipate recouping the loss of FLSA for Pay Period 8.

On April 30, 2015, Customs and Border Protection’s Acting Director of Labor-Management Relations, Barry Carpenter, issued a notification to the National Border Patrol Council exempting all Border Patrol Agents from the Fair Labor Standards Act effective pay period eight (8), which is the period covering April 19, 2015 - May 2, 2015. The NBPC was notified that also effective pay period eight (8), excludable days would no longer be calculated towards the calculation of AUO. The agency’s reasoning was that excluding days from AUO calculations was an unlawful practice.

The National Border Patrol Council was notified today that effective Pay Period 8 (the current pay period covering April 19, 2015 - May 2, 2015), Department of Homeland Security (DHS) decided it was necessary to cease paying FLSA and to eliminate excludable days.

DHS irrationally claims these changes are necessary due to the passage of the Border Patrol Agent Pay Reform Act (BPAPRA), which was passed into law on December 18, 2014. DHS also indicated that Border Patrol agents might even suffer greater financial losses by this attack because DHS is considering a plan to recover FLSA payments that were made to agents since the passage of the BPAPRA.

Contrary to the absurd claims by DHS, there is nothing in the BPAPRA that says the Agency must wait for OPM to “promulgate regulations.” DHS is choosing to implement portions of the BPAPRA that are harmful when implemented without the other provisions, yet DHS could implement all of the provisions of the BPAPRA to avoid negative impacts to agents.  But alas, that apparently is too much to hope for. The BPAPRA was never intended for piecemeal implementation because it will harm agents when not implemented as intended, but clearly that appears to be the intentions of DHS.

The Union has already contacted our attorneys and will be using all of our resources to challenge these disgraceful and unlawful acts. Further, if DHS makes any attempt to recover payments from agents, the Union will fight those attempts with all of the available resources.

Official Notice - FLSA Exemption

Attached is the finalized and signed Overtime Transition Plan Memorandum of Understanding.

Overtime Transition Plan MOU

OT Lawsuit

If you are a border patrol agent who is a member of the NBPC union, click here for info to sign up for the overtime lawsuit.

WMlaborlaw

greenline

Member News

  • Nationwide Swaps Open on June 26, 2017 +

    The USBP Nationwide Swap Program (NWS) will be open from June 26, 2017 at 8:00 am (CT) to July 10, Read More
  • Canine Lawsuit Settlement Update +

    Contrary to rumors that have been circulating recently, no settlement monies have been received or disbursed.  It is estimated by Read More
  • Officer Safety Bulletin +

    Due to recent national events specifically targeting law enforcement and two highly suspicious incidents involving Border Patrol agents, the National Read More
  • 1

Know Your Rights

  • Obey Now, Grieve Later +

    "Obey now, grieve later" - an employee should obey a supervisors lawful order and grieve the order later if the employee Read More
  • Hearing Loss Guidance +

    When an injured federal employee files a workers’ compensation claim for hearing loss, it is common to find challenges when Read More
  • DOL Publications +

    If you have any questions about the applicability of the Federal Employee Compensation Act (FECA) and its application in OWCP Read More
  • 1