The NBPC has taken the Border Patrol Agent Pay Reform Act to the Law Firm of Woodley McGillivary for a comprehensive overview of the law that was signed by the President on December 18, 2014. The law firm of Woodley McGillivary is considered an expert in Title 5 law that deals with pay for Federal Employees. Based upon their analysis, we will answer the most common questions or assumptions.
Question: Can the Agency unilaterally lower a Border Patrol agent to a lower level than the one elected by the agent?
Answer: No. Although there are several sections that have given agents angst, none of them give the agency the authority, outside of being placed on the rubber gun squad, to unilaterally lower a border patrol agent from the level of their choosing.
The most common section that has caused confusion is found close to the end of the law on page 25, line 21 of the law as shown on the NBPC Website. This section talks about a “Comprehensive Staffing Analysis.” This analysis is a report that must be submitted by the agency to the Comptroller General after one year of the law’s enactment. The Comptroller General has 60 days after receipt of the agency’s report to submit a comprehensive analysis of the report to certain committees of Congress. Although a report must be submitted, nothing in this section of the law gives the agency, Comptroller General, or Congress the authority to unilaterally lower an agents rate of pay from that which the agent elected.
Also, on page 9, line 6 you will find a section entitled “Implementation.” This section talks only about enhancing one’s retirement annuity. This section allows the agency to ensure an agent doesn’t “artificially enhance his/her retirement by choosing a level higher than one they generally elected for the majority of their career in order to increase their “high three.” Example: If an agent works the majority of their career at the basic rate of pay or at the level 2 rate of pay, that employee may not elect the level 1 rate of pay for the last three years of his/her career for the purpose of gaining extra in their retirement. This is not a unilateral authority of the agency to lower an agent’s level of overtime pay. The agent will have made a conscience decision to work at a certain level, and thereby choosing what his/her retirement will be.
On Page 4, line 21 – “In Lieu of Election.” This section specifically says that if an agent does not make a timely election that agent “shall be assigned to the Level 1 border patrol rate of pay.” Please not, the agency can not assign someone lower than the Level 1 rate of pay.
Lastly, on page 5, line 8 you will find the word “unable.” If an agent is “unable” to perform overtime work for purposes of having their law enforcement authority revoked, the agent will be assigned to the basic level of pay. This was meant to mirror AUO and when an agent is not allowed to earn AUO because their law enforcement authority was revoked.
The BPAPRA is a right and outside the enactment of another law, no one, not even Congress can mandate agents to a lower level of pay.
Question: Will an agent have to make up overtime hours for taking AL or SL?
Answer: No – if it is a full day of AL or SL. Yes – if it is a partial day of AL or SL. Like AUO if an agent takes a full day of AL or SL, the agent does not accrue an obligation to make up the hours. It’s the same as a current excludable day. If, however, and like AUO, an agent takes a partial day of AL or SL, the agent will have an obligation to make up those hours as under AUO that day is not excludable.
Question: Will training days be excludable?
Answer: There are no more excludable days. The level an agents elects under the BPAPRA will be treated as if it is their base rate of pay. In other words: If an agent elects Level 1 there scheduled work day will be 10 hours and training will be done during that 10 hour block and son on for the other levels of pay.
Question: Can alternative work schedules be negotiated under the BPAPRA?
Answer: Yes. In fact, one of the main concerns the agency has voiced with regards to the levels is scheduling agents for different times during the shift. The easy answer would be to negotiate a 4-day work week and 8-day pay period for those that choose the basic level of pay. For those that choose level 2, we would try to negotiate a 9-day pay period. Five days one week and 4 days the second or vice versa.
From the law firm of Woodley, McGillivary: The Border Patrol Agent Pay Reform Act does not reference or evince any intent to rescind the provisions of title 5 that provides for compressed work schedules. 5 USC 7106(b)(1) and where employees are represented by a Union, allows an agency to negotiate tours of duty for employees including alternative work schedules. The Border Patrol Agent Pay Reform Act does not change
Question: Does it go towards retirement?
Answer: Yes, see page 25, lines 1 through 20.
Question: Use of Comp Time to go home early?
Answer: Yes, the Union and the agency are finalizing an MOU stating that Comp Time will be used like AL.