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NBPC SPECIAL PAY REFORM SECTION
Border Patrol Agent Pay Reform Act (BPAPRA) PDF
Thursday, 16 February 2012
Border Patrol Agent Pay Reform Act (BPAPRA)

(a)    Border Patrol Pay

(1)    The purpose of this subsection is to provide premium pay to Border Patrol agents to ensure the availability of agents to perform up to ten hours of Title 5 overtime hours in excess of a 40-hour workweek based on the needs of the employing agency.  Each agent shall be paid Border Patrol pay as provided under this subsection.   

(2)    Border Patrol pay under this subsection shall be –

(A)    25 percent of the rate of basic pay for the position; and

(B)    Treated as part of the basic pay for purposes of –

(i)    Sections 5595(c), 8114(e), 8331(3) and 8704(c) of Title 5; and

(ii)    Such other purposes as may be expressly provided for by law or as the Office of Personnel Management may by regulation prescribe.

(3)    An agent shall be paid Border Patrol pay if:

(A)    The average of overtime hours in excess of a 40 hour work week is 10 hours.

(B)    The hours referred to under paragraph (3)(A) are –

(i)    The weekly average of overtime hours worked by the agent in excess of each regular work day; and

(ii)    The weekly average of overtime hours such agent is available to work on each regular work day upon request of the employing agency.

(C)    Unscheduled hours which are worked by an agent on days that are not regular work days shall be considered in the calculation of the average of Title 5 overtime hours worked or available for purposes of certification.

(D)    An agent shall be considered to be available when the agent cannot reasonably and generally be accessible due to a status or assignment which is the result of an agency direction, order or approval.

(4)    An agent who is eligible for Border Patrol pay shall receive such pay during any period such agent is –

(A)    Attending agency sanctioned training;

(B)    On agency approved sick or annual leave;

(C)    On Agency ordered travel status;

(D)    On official time within the meaning of 5 U.S.C.  § 7131;

(E)    On excused absence with pay for relocation purposes;

(F)    Is on light duty to injury or temporary disability;

(G)    Is performing administrative duties pending an Agency investigation or personnel action; or

(H)    Engaged in a similar type of activity in which the Agent is temporarily away from his or her regular duty assignment.

(5)  All Border Patrol Agents at or below the GS-12 pay grade as of the date of enactment of this legislation shall receive, effective immediately, a two step increase of the GS grade and step at which they are currently paid; provided, however, that such increase cannot cause an agent to increase his or her pay at a level higher than the top step of the Border Patrol Agent’s pay grade as of the date this legislation is enacted.

(b)    Limitations.

(1)    Fiscal year cap.  There is no limitation on the aggregate amount of overtime pay made under this section that a Border Patrol Agent may be paid in any fiscal year.

(2)    A Border Patrol Agent who received Border Patrol pay under subsection (a) for time worked may not receive pay or other compensation for those same hours of work under any other provision of Title 5, but receipt of such pay shall not affect an agent’s entitlement to other forms of pay under other laws.

(3)    In accordance with section 207(k)(3) of the Fair Labor Standards Act, 29 U.S.C. § 207(k), a Border Patrol Agent who receives Border Patrol pay under this premium pay statute shall be entitled to overtime pay under the Fair Labor Standards Act only for hours worked in excess of 95.5 hours in a 14-day work period.

(4)    A Border Patrol Agent who is called back to duty after the completion of their shift shall be paid overtime for call back work hours and at the rate of one and one-half times their regular rate of pay.

(c)    Definitions.  For purposes of this section –

(1)    The term “available” refers to the availability of a Border Patrol Agent and means that an agent shall be considered generally and reasonably accessible by the agency employing such agent to perform unscheduled duty based on the needs of an agency;

(2)    The term “Border Patrol Agent” means an individual employed in the uniformed law enforcement arm of the U.S. Customs and Border Protection within the Department of Homeland Security performing those functions as specified by the Office of Personnel Management in the position classification series 1896 (Border Patrol Enforcement), including but not limited to detecting and preventing illegal entry and smuggling of aliens, commercial goods, narcotics, weapons, and/or contraband into the United States and arrested people suspected of such violations.

(3)    The term “work period” refers to the 14-day time period on which a Border Patrol Agent’s biweekly pay is calculated.

AMENDMENT TO 29 U.S.C. § 207(k)

29 U.S.C. § 207(k)

    (3)  in the case of a border patrol agent employed by the United States, 98.5 hours in a 14-day work period, the agent receives,

[compensation at a rate not less than one and one-half times the regular rate at which he is employed.]  The phrase in brackets appears under 207(k).
 
NBPC Proposal Fact Sheet PDF
Thursday, 16 February 2012
 
National Border Patrol Council (NBPC) Compensation Reform Plan

Current law provides that Border Patrol agents who work in excess of 85.5 hours per pay period (two weeks) are to be compensated at time and one half up to 100 hours.   Unscheduled overtime beyond 100 hours per pay period is only compensated at half time.

Description of NBPC plan: Under the NBPC plan, the first 95.5 hours per pay period would be compensated as straight time.  The next 4.5 hours would be compensated as time and one half.  All hours beyond 100 would be compensated as 1/2 time, as they are now.  This change would result in an average loss of annual income per agent of $6,000 per year. For this reason, the NBPC plan includes an offset to minimize, but not eliminate, this loss of income for current bargaining unit agents.   The plan calls for a one-time, two-step pay increase for current agents at or below the GS-12 pay grade.

The NBPC plan will be easier to administer and will also save the government money.   The first year savings will be reduced by the two-step increase, but will still result in a savings.    The savings each year thereafter would be comparable to the DHS plan, except this plan would allow the money to be used as a budget reduction.  The DHS plan simply reallocates the funds to increase the number of management positions and salaries of each position.

Benefits of NBPC Compensation Reform:

•    Provides compensation for hours worked (albeit at half of the normal hourly rate).

•    Protects agents from being required to work excessive hours for ZERO compensation.

•    Provides management the ability to schedule agents to cover shift change without paying normal time and a half, resulting in a significant yearly savings.

•    Nearly eliminates FLSA overtime payments, allowing the agency to project their salary budget more accurately.

•    Allows greater scheduling flexibility than the current AUO system, meaning both parties could benefit from compressed work schedules, a nationwide fitness program, and other progressive ideas that have been hampered by AUO.

•    Reduces the potential for future litigation regarding the improper payment of overtime.
 
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