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.
The National Border Patrol Council is expecting a signed Memorandum of Understanding with Customs and Border Protection, concerning the Overtime Transition Plan, on Tuesday, April 28, 2015.
The Office of Personnel Management has determined that Border Patrol Agents are considered exempt from the provisions of the Fair Labor Standards Act as of the signing of the Border Patrol Agent Pay Reform Act (BPAPRA) on December 18, 2014. The determination left the National Border Patrol Council with the decision to either fight for Administratively Uncontrollable Overtime (AUO) as the type of pay received during the transition or to adopt a transition plan that mirrors the provisions of the BPAPRA. The pitfalls of fighting for AUO included the loss of FLSA exempt days for leave, thus dropping all agents to either 10 or 15% AUO.