Border Patrol cuts overtime pay for agents

Following months of review on the use of overtime by U.S. Customs and Border Patrol agents, the agency announced that some employees will be no longer be eligible for overtime pay under a program that allows agents to work additional hours without approval from management.

In a memo released Monday, CBP Commissioner R. Gil Kerlikowske announced the change, which reins in the use of overtime hours under a system called Administratively Uncontrollable Overtime.

Originally created in 1966, the program allows agents to extend their eight-hour shifts into 10 hours, and many agents work those extra hours every week, increasing their annual pay up to 25 percent.

Meant for agents working at remote locations in the field, to allow extra time for ongoing enforcement and travel, some agents were paid more under the policy for watching TV at CBP's Washington, D.C., headquarters. Federal investigators have said abuses in the program cost millions of dollars each year.

Belt-tightening made necessary by federal spending cuts, as well as pointed questions about the use of hours by federal agents with the Department of Homeland Security made the changes necessary.

Going forward, only front-line agents can receive overtime under the system.

Managers and second-line supervisors, along with employees "performing administrative and predictable duties" are now ineligible for AUO, said Kerlikowske.

Border Patrol agents working with the agency's special operations, including BORSTAR, the search and rescue group, the tactical team BORTAC, and crews with the Office of Air and Marine will remain unaffected. Field investigators and supervisors with internal affairs were similarly unaffected.

Art Del Cueto, president of the Tucson Sector’s Border Patrol union, Local 2544 of the National Border Patrol Council, said while the cutbacks were focused on second-line supervisors, the cuts would "trickle down" to agents in the field.

Already, the agency relies on temporary supervisors, he said.

"We're already short on manpower, and while we understand the need for this kind of cut, it still hurts," Del Cueto said.

This change affects around 75 Border Patrol personnel in Arizona, according to a statement from U.S. Rep. Ron Barber's office.

The new rules are confusing, and "we need a consistent and reliable system to pay Border Patrol agents," Barber said. Touting a bill he has co-sponsored that would revamp BP pay, the Southern Arizona Democrat said "we owe them a pay system that provides certainty."

The AUO program has become controversial in the last year after  an investigation by the Office of Special Council found that employees in six offices throughout the Department of Homeland Security abused the program, charging the government around $8.7 million annually in unnecessary hours.

Unlike the irregular or occasional circumstances experienced by front-line agents on the border, the report noted that "thousands of DHS employees routinely file for AUO, claiming up to two hours a day, nearly every day, even in headquarters and training assignments where no qualifying circumstances are likely to exist." 

In the most egregious case, employees working in the commissioner's situation room in Washington, D.C., were paid nearly two hours of overtime nearly every day, but spent that time watching television, surfing the Internet, or taking care of personal business.

According to the Congressional Budget Office, in 2013, Border Patrol spent $627 million in total overtime costs for agents, while total compensation costs was $3.1 billion.

Furthermore, in testimony submitted to Congress by officials with DHS in January, 77 percent of the AUO paid at DHS goes to employees of CBP.

"The review also uncovered several improper AUO practices that must stop," said Kerlikowske. "Overtime for CBP employees must be used in a prudent, appropriate, and legally compliant manner. Overtime misuse or abuse will not be tolerated, both with respect to AUO and other overtime systems."

However, the change in overtime payments is an effective pay cut for those agents, said Del Cueto.

"This is a huge cutback for those agents, some will lose as much as 25 percent of their income. How are they going to react when they lose that income? Some will spend less and some will decide it's not worth it and retire," he said.

Kerlikowske wrote he was "aware of employee concerns about the potential financial impact de-authorization and other changes in overtime compensation may have." He wrote that the agency would offer "financial planning seminars and other resources" for agents.

While the agency struggles with compensation for agents, a bill that has languished in the House and Senate could offer a solution. The Border Patrol Pay Reform Act was introduced in both houses in November of last year.

Sponsored by Sens. Jon Tester and John McCain in the Senate and co-sponsored by Barber and 13 other representatives in the House, the reform bill would replace AUO with a structure that would allow agents work 80, 90, or 100 hours in a two-week period. Hours worked beyond that schedule would be compensated either as overtime or could be accumulated as time off.

Agents could work 80 hours in a pay period and receive straight pay, 90 hours and receive a 12.5 percent pay differential, or 100 hours and receive a 25 precent pay bump.

The CBO reports that such changes would save the federal government around $100 million a year.

Agents would face a pay cut of around $6,200 annually, said Brandon Judd, president of the National Border Patrol Council, who testified for the pay reform act in June. According to Judd, agents want this "because ensuring proper manpower, stability, and safety, are worth the trade."

Del Cueto agrees, "This is a huge issue we need to focus on and the answer is right there in front of us and that's the Pay Reform Act."

In 2013, after sequestration went into effect, DHS attempted to furlough Border Patrol agents, cutting their take-home pay by as much as 40 percent. However, after a public outcry and political pressure, Homeland Security relented and pulled money from other parts of the Border Patrol's budget, including shifting $7 million from money ear-marked for infrastructure, technology and border-security fencing.

However, this summer's influx of thousands of unaccompanied minors through the Rio Grande Valley sapped the agency's budget.

In response, the White House requested $3.7 billion in additional funding, but the request faltered in Congress. The House passed a last-minute bill for $694 million, but that bill also included a poison pill, blocking the Obama administration's ability to renew deportation relief for undocumented immigrants widely known as "Dreamers."

On Agu. 7, Homeland Security Secretary Jeh Johnson complained about the issue during the annual conference for the American Bar Association

"We asked Congress for additional funding to address this problem. We are disappointed that Congress left town a week ago for its August recess and did not act last week to help us. I can’t fly an airplane without fuel, and I cannot fund a massive immigration enforcement effort without money."

In a news release, Johnson said that DHS was moving $405 million away from other areas in order to respond to the situation in Texas.

"Given Congress’ failure to act, the department is left with no good choices," Johnson said.