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DHS IG Says Audits Confirmed CBP Overtime Pay Misuse

Whistleblowers’ claims of misuse of administratively uncontrollable overtime (AUO) by some Border Patrol agents were confirmed in four Department of Homeland Security (DHS) Inspector General (IG) reports, the IG said Monday.

According to the IG, “The Office of Special Counsel referred numerous whistleblower disclosures to DHS alleging widespread misuse of AUO within Customs and Border Protection (CBP). AUO, which supplements recipients’ pay by as much as 25 percent annually, is meant for employees who are often required to work unpredictable overtime that cannot be controlled.”

The IG said it had “convened a multidisciplinary taskforce to evaluate allegations of AUO misuse in CBP’s Ysleta Border Patrol Station, National Targeting Center, Border Patrol Headquarters and in several Border Patrol sectors where agents served as CrossFit Instructors.”

“We found that AUO pay for CrossFit duties, such as instruction and gym maintenance, was inconsistent with federal AUO regulations,” the IG stated, adding, “Although the Ysleta Station, National Targeting Center and Border Patrol Headquarters did not have sufficient AUO documentation to allow us identify a specific violation of law, rule or regulation, many of the tasks border patrol agents performed during AUO hours appeared to have been administratively controllable.”

DHS initiated a series of AUO reforms that will result in greater accountability and help prevent AUO misuse,” the IG noted. “In addition, CBP decertified AUO for 139 positions that did not meet AUO eligibility requirements and Congress enacted a pay reform law that eliminates AUO for border patrol agents—replacing it with a new pay system that may result in$100 million in annual savings.”

“I am encouraged by CBP’s response to a costly misuse of the AUO system, which will help safeguard taxpayer money and give the accountability the public expects and deserves,” said Inspector General John Roth.

In December, Homeland Security Today reported that Congress passed the Border Patrol Agent Pay Reform Act of 2013 which is supposed to dramatically simplify the current pay system for Border Patrol agents and address concerns raised by the Office of Special Counsel about the misuse of Administratively Uncontrollable Overtime by the agency.

The legislation addresses the overtime component within Border Patrol’s pay system established almost 40 years ago. AUO has been a frequent target in budget negotiations, leaving agents uncertain what they will be earning from year to year, said the office of said Rep. Ron Barber (D-Ariz.), who cosponsored the House version of the legislation, which is intended to resolve this problem and is expected to save taxpayers more than $1 billion over 10 years.

“This legislation … takes some commonsense steps to make some badly needed reforms to the overtime system at the Border Patrol, which is currently too complicated, too difficult to manage and enables waste and abuse,” said then Senate Committee on Homeland Security and Governmental Affairs Chairman Tom Carper (D-Del.). “This legislation will save millions of taxpayer dollars and curb misuse of the system – all while increasing the ability of the Border Patrol’s ability to secure our borders. In fact, one estimate I have seen shows that this bill would add theequivalent of 1,500 agents to the border. That’s what I like to call a win-win … I applaud the House for passing this bipartisan piece of legislation.”

According to the Congressional Budget Office, the reformed overtime pay system will save taxpayers $100 million each year, while resulting in the current Border Patrol workforce working an additional 2.5 million hours each year — or the equivalent of adding 1,500 full time agents.

“This bill will bring certainty to our Border Patrol agents and their families who sacrifice so much for our safety every day,” Barber (D-Ariz.) said. “We owe this to our Border Patrol agents who have dedicated their lives to ensure that our borders are secure.”

However, according to sources familiar with the matter, the pay reform actually creates a 50 hour work week at straight pay. "There is not any overtime pay associated with it. It breaks down to straight pay for straight time with absolutely no benefits to the agents other than guaranteed extra hours of work," a source told Homeland Security Today on background. "Even after working over 100 hours in a pay period, it will either pay straight comp time or overtime at management’s discretion."

Indeed. Border Patrol agents will actually earn less money under the new pay scheme, observers agreed.

“I want to make it clear that no Border Patrol agent is happy about the prospect of losing $6,400 per year,” National Border Patrol Council (NBPC) President Brandon Judd said during a Senate hearing in June. “We are sacrificing a lot, but in the end, it will prove to be a boon for border security, the American public, the agency and the agents whom I represent.’’

The legislation was strongly supported by NBPC in a statement following passage of the legislation by Congress in December.

Lawmakers began working on revamping CBP compensation in the wake of an Office of Special Counsel audit that found too many employees were abusing their overtime privileges.

In August, CBP Commissioner R. Gil Kerlikowske said Administratively Uncontrollable Overtime would be available to frontline field agents in the Border Patrol, first-line supervisors and field investigators.

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The Government Technology & Services Coalition's Homeland Security Today (HSToday) is the premier news and information resource for the homeland security community, dedicated to elevating the discussions and insights that can support a safe and secure nation. A non-profit magazine and media platform, HSToday provides readers with the whole story, placing facts and comments in context to inform debate and drive realistic solutions to some of the nation’s most vexing security challenges.

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