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.
The following is from Episode 39 of the State of the Union podcast which aired on February 20, 2015. It deals with the OBP's memorandum concerning the decertification of AUO. http://goo.gl/dOQI53
Shawn Moran: Welcome to the “State of the Union” for the National Border Patrol Council. I’m Shawn Moran.
This is a very special episode as yesterday Chief Michael Fisher put out a memo detailing OBP’s actions for the decertification of AUO and the plans that the Border Patrol is taking moving forward in terms of pay. So we wanted to get some more information on that so we went to the union’s chief point of contact, the president of the National Border Patrol Council, Brandon Judd.
Brandon, welcome back to the show, sir.
Brandon Judd: Thanks, Shawn, I appreciate it.