NTEU and CBP have reached settlement of a dozen pending national grievances filed on behalf of CBP Officers and Agricultural Specialists involving shift, scheduling and overtime issues. Eligible employees will receive a cash distribution and/or compensatory time.
1. What was settled?
NTEU and CBP have reached settlement of a dozen pending national grievances filed on behalf of CBP Officers (CBPOs) and Agricultural Specialists (CBPASes) involving shift, scheduling and overtime issues. Eligible employees will receive a cash distribution and/or compensatory time.
CBP paid $184 million into a settlement fund, which represents unspent salary and expense (S&E) appropriations for fiscal years 11, 12, 13, 14 and 15. A settlement administrator has been retained to calculate and make payments to individuals covered by the settlement agreement through a share-based system, based on years of service.
This was an extremely complex settlement following many years of litigation and months of challenging negotiations. Because of legal limitations on the funds CBP can use for this purpose and how those monies can be spent, the terms and the payout formula are unusually complicated.
2. Which grievances are covered?
The settlement covers a dozen pending national grievances filed on behalf of CBPOs and CBPASes concerning claimed violations of: (1) the scheduling requirements of 5 U.S.C. Section 6101 and Article 34, Section 5 of the contract; (2) the bid and rotations provisions of Article 13; (3) implementation of the Revised National Inspection Assignment Policy (RNIAP); and, (4) COPRA and/or the Fair Labor Standards Act (FLSA) for unpaid work. The settlement also covers local grievances making the same claims for the same time period.
3. Which employees are entitled to cash distributions under the settlement?
The settlement covers current and former bargaining unit GS-1895 CBPOs, including CBPOEs and canine officers, and GS-401 CBPASes who served in one of those positions between October 1, 2010 and September 30, 2015. It also includes retirees who were employed in one of these bargaining unit positions at some point in FY 11 – FY 15 (10/1/10 – 9/30/15).
4. Why must one have been a bargaining unit CBPO or CBPAS at some point between 10/1/10 and 9/30/15 to be eligible to receive a payment under the settlement?
By law, appropriated but unspent S&E funds may only be used to pay obligations “properly chargeable” to (i.e., incurred in) the fiscal year for which the funds were appropriated. Using the funds to pay back pay to employees who were not employed by CBP during the 10/1/10 – 9/30/15 timeframe would not comply with this limitation.
For more information click here.
5. Why are CBPASes covered under the settlement?
Agriculture Specialists are covered by several of the settled grievances: a FLSA/COPRA grievance (filed in 2/08 and held in abeyance), and the Basham I and II 6101 grievances.
6. Why are other employees, like CBP Technicians, not included in the settlement?
The agreement only covers CBPOs and CBPASes because only grievances pertaining to them are being settled. We considered seeking to include national grievances filed on behalf of employees in other positions, but these grievances were for smaller amounts in total, which would have made a distribution formula much more complicated.
7. What about employees who have retired or are planning to retire soon?
Retired employees are eligible to receive payments from the settlement fund provided they occupied a bargaining unit CBPO or CBPAS position at some time between 10/1/10 and 9/30/15.
8. I was a bargaining unit member during the 10/1/10 – 9/30/15 time period but retired. Will I receive a payment at the same time as current eligible employees?
Yes. Payments to all individuals covered by the settlement will be distributed at the same time.
9. Will employees who were detailed to supervisory or other non-bargaining unit positions be included?
Individuals will only receive length of service credit under the distribution formula for years served in a bargaining unit position. To receive credit for a particular year, an individual must have served at least six months (180 days) in a bargaining unit CBPO or CBPAS position.
10. Why are some supervisory or other non-bargaining-unit employees covered by the settlement?
Individuals will receive a payment under the settlement only if they occupied a bargaining-unit CBPO or CBPAS position between 10/1/10 and 9/30/15 (see #4 above). This includes individuals who occupied a bargaining-unit CBPO or CBPAS position at some point during that period but were later promoted to a supervisory or other non-bargaining-unit position. Despite currently occupying a supervisory or other non-bargaining-unit position, these individuals were nevertheless harmed by legal violations that occurred when they occupied bargaining-unit CBPO or CBPAS positions and that the Global Settlement was designed to remedy.
11. Will individuals who occupied a bargaining-unit CBPO or CBPAS position between 10/1/10 and 9/30/15 but who are now deceased be included?
Deceased individuals are not covered by the settlement. In agreeing to this provision, NTEU made the difficult but reasonable judgment not to include the estates of deceased individuals within the settlement’s coverage to avoid adding significant administrative costs and complications to an already complex settlement implementation process. For example, because the only available information for locating and contacting an individual covered by the settlement is the last known address of the individual on file with CBP, and because this information is likely insufficient to reach a deceased individual’s heirs, time and expense would need to be incurred to find the heirs’ contact information. In addition, the task of identifying an individual’s heirs in the first place could entangle NTEU in complicated estate disputes.
12. How were cash distributions determined?
Individual amounts were determined using a share-based formula, with the number of individual shares based on years of service from FY2003 to FY2015 (between 10/1/02 and 9/30/15). Greater weight was given to service from 2003 to 2011, when most of the violations covered by the settled grievances occurred. Specifically, individuals were assigned 3 points for each year of service in a covered BU position between FY2003 and FY2011 and 1 point for each year of service in a covered BU position between FY2012 and FY2015.
To qualify as occupying a covered BU position during a particular year, for purposes of assigning points, the individual must have occupied the covered BU position for at least six months (180 days) of that year.
The one exception to this rule is that any individual who occupied a covered bargaining-unit position for at least one day in FY2003 will now receive points for that year under the distribution formula. When NTEU identified a number of individuals who were not properly credited for their time in a covered position in FY2003, we asked CBP for an explanation. According to CBP, it was impossible to accurately track employees’ time in a covered bargaining-unit position prior to March 2003, when legacy organizations merged to form DHS. To ensure that individuals who did work for six months or more in FY2003 were not improperly denied credit for FY2003 because of CBP’s faulty data, anyone who occupied a covered bargaining-unit position for at least one day in FY2003 was a compromise solution.
Example: An individual who occupied a covered BU position for at least one day in FY2003 and at least six months (180 days) in each year between FY2004 and FY2013 would be assigned 27 points in the distribution of 2011 funds because, as of 2011, that employee had nine years of service that fell between 2003 and 2011. Following the same approach for 2012 and 2013 funds, the individual would be assigned 28 points in the distribution of 2012 funds and 29 points in the distribution of 2013 funds.
The individual’s share of the funds in each fiscal year 2011-2015 is equal to his or her points divided by the total points for all individuals entitled to a share of the fiscal year’s funds. Thus, for the individual who occupied a covered BU position between 2003 and 2013, his or her share of the 2011 funds would be equal to 27 divided by the total number of points for all individuals entitled to the FY 2011 funds. Similarly, that individual’s share of the 2012 funds would equal 28 divided by the total number of points for all individuals entitled to the 2012 funds, and his or her share of the 2013 funds would equal 29 divided by the total number of points for all individuals entitled to the 2013 funds.
There are two limitations on payments: the annual overtime cap of $35K which was in effect during FY2011 through FY2015 (or $45K if the individual received a waiver) and payments already made pursuant to covered national or local grievances. If an individual could not receive the full amount of the payment due them in a particular FY due to the overtime cap, the settlement administrator determined whether their payment in other fiscal years can be enhanced, while remaining under the cap, to make up the difference.
For a more detailed explanation click here. Note, however, that this explanation does not include the most up-to-date information regarding retirement and TSP contributions, which can be found in questions 16-19 below.
13. Will the fact that I reached the annual OT cap in one or more of the fiscal years from FY 11 – FY 15 affect my payment under the settlement?
Possibly. Although NTEU does not agree that back OT payments should be subject to the annual OT earnings cap, we agreed to subject payments to the cap solely for this agreement because there was insufficient time to litigate our position. A distribution formula will be used that minimizes the number of employees who do not receive their full payment. Those who do not receive their full payment because of cap limitations are entitled to additional comp time.
14. Who will perform the distribution calculations and distribute the funds?
A firm, BrownGreer (BG) in Richmond, Virginia, has been retained to serve as the settlement administrator (SA) to perform these functions. BG specializes in this type of work. The SA will communicate with individuals covered by the settlement and will resolve any disputes about payment amounts.
15. Is the settlement administrator being paid out of the settlement funds?
No, CBP is paying the costs of the services provided by BG separately.
16. How much of the $184 million will be paid to employees? What money comes out of the settlement fund?
Almost all of the $184 million will be paid to employees. The only money that comes out of the settlement fund is for CBP’s employer contributions toward FICA (Medicare and Social Security) taxes.
17. What money comes out of the employee’s cash distribution?
By law, income taxes and FICA taxes must be withheld from individuals’ payments. W-2s containing payment amounts and withholdings will be issued to each individual who received a payment.
18. What about retirement and TSP contributions?
Originally, the settlement provided that CBP’s required employer retirement and TSP contributions (totaling $15 million) were to be paid from the settlement fund, and employee retirement and TSP contributions would be deducted from individuals’ settlement payments. But CBP has been unable to figure out how to transfer the retirement and TSP contributions from the settlement fund administered by Settlement Administrator to the agencies that administer those programs. To address this issue, in March 2018, the parties agreed that the $15 million that was to be deposited into individuals’ retirement and TSP accounts will instead go back into the general fund for distribution to covered employees. With this $15 million now available for distribution, individuals will receive larger settlement payments. This solution also avoids additional indefinite delay caused by CBP’s inability to determine how to handle the retirement and TSP contributions. Because the Settlement Administrator was already in the process of re-calculating payment awards following receipt of corrected data from CBP, this extra $15 million will be distributed with the second round of checks.
19. Will the back pay I receive affect my high 3 year average for purposes of calculating my retirement annuity?
No. Originally, the settlement provided that back OT pay received under the settlement would be credited to a covered individual’s OT earnings for each fiscal year from FY 11 through FY 15 that the individual occupied a covered position, and any amount up to $17,500 would count towards the individual’s basic pay for retirement purposes. But because CBP could not figure out how to make contributions from the settlement fund to the government’s retirement fund, in March 2018, the parties agreed that settlement payments would not constitute basic pay for retirement purposes. One consequence of this March 2018 agreement is that settlement payments will not affect your high 3 year average for purposes of calculating your retirement annuity. Accordingly, no employee retirement contributions will be withheld from your payments. Another consequence is that the money from the settlement fund previously set aside for CBP’s employer retirement contributions is now free for distribution. This money will be distributed in the second round of checks.
20. When and how will my cash distribution be paid?
We anticipate that check distribution will begin in May 2018. After all covered individuals receive their first check, individuals will have an opportunity to file an appeal. After appeals are resolved, a second round of checks will be mailed.
Initially, we anticipated that payments would be made beginning in August 2017. Unfortunately, after initial individual payments were calculated but before checks were mailed, systemic errors were discovered in the employment data provided by CBP to the settlement administrator. (Under the settlement agreement, NTEU does not see the employment data. CBP provides the data directly to the settlement administrator.) CBP provided new data in October 2017, but again, systemic errors were found.
CBP provided revised data to the settlement administrator in February 2018, and individual payments are being recalculated. NTEU regrets the delay in the distribution of payments but believes that getting the payment amounts right is of paramount importance.
During the delay, the monies set aside for the CBP Global Settlement have been accumulating interest in a trust account. This interest, in addition to the principal, will be distributed to employees pro rata with their share of the settlement fund.
21. If I received a payment under a national or local grievance that is included in the settlement, will I still receive a payment from the settlement fund?
Payments received pursuant to a grievance included in the settlement will be subtracted from payments made from the settlement fund. Check with your local chapter if you believe you may have received such a payment.
22. What does the agreement say about scheduling, which was the subject of several of the national grievances that were settled?
During these negotiations, we also worked to protect your rights under the contract and the law. One of the more contentious aspects of the negotiations was the scheduling requirements of 5 USC Section 6101 and Article 34 of the term contract.
In the last decision we received on whether CBP must comply with these scheduling requirements, an arbitrator ruled that CBP had established the need to deviate from several scheduling requirements to avoid a substantial increase in costs or being seriously handicapped in carrying out CBP functions. The arbitrator further ruled that these determinations must be made on a case-by-case basis and must be documented.
Working from that decision, we negotiated language that identifies the 3 scheduling requirements and the conditions under which deviations are permitted:
• Workweeks must be scheduled at least one week in advance unless a change is necessary to meet situations beyond CBP’s control;
• Workweeks must include 2 consecutive days off unless it is necessary to respond timely to posed threats or to avoid substantially increased costs;
• Work hours in each day of the week must be the same, unless CBP has no control over the situation or to avoid substantially increased costs.
Upon request, CBP must explain why a deviation from scheduling requirements was necessary under the circumstances. We also identified four limited situations where deviation from the scheduling requirements is considered appropriate: (1) mandatory training; (2) court or litigation related activities; (3) AT-CET or PERT assignments; and (4) when an employee voluntarily requests a schedule change consistent with the terms of the contract.
NTEU may still challenge deviations from the general scheduling requirements if we do not believe the conditions for deviations are satisfied.
23. Will the new scheduling language in the contract affect employees on Compressed Work Schedules (CWS)?
No. The Article 34 and Section 6101 scheduling requirements apply to those working 40 hour workweeks. CWSes for uniformed officers are negotiated under a separate law, the Flexible and Compressed Work Schedules Act (FCWSA), and a different contract article. The FCWSA makes clear that Section 6101, including the authority to deviate from scheduling requirements, does not apply to CWS. The FCWSA allows an agency like CBP to seek to terminate or modify a CWS for certain reasons, but they must bargain with NTEU before implementing any changes. Article 14, Section 5 of the current contract also allows CBP to temporarily suspend CWS to meet unexpected work requirements or changes in staffing levels, with 2 weeks advance notice.
24. What can I do if I disagree with my payment amount?
You are permitted to contest the correctness of certain factors that went into determining your award amount: (1) whether you occupied a covered BU position at any time in FY11, 12, 13, 14, or 15; (2) whether you occupied a covered BU position for at least one day in FY03 or at least six months (180 days) in any fiscal year between FY04 and FY15; (3) whether you exceeded your overtime cap in FY11, 12, 13, 14, 15; (4) whether you already received a payment pursuant to covered national or local grievances.
The appeal process for contesting these factors will become active once checks are mailed. Even if you notified NTEU or the Settlement Administrator of a suspected error in your data, and if that suspected error remains even after CBP has revised its data, you must file an appeal after you receive your check for CBP to fix the error. To lodge an appeal, you must contact the claims administrator at 1-844-378-6551 within 30 days of the date of your check. If you wish to appeal, you must not cash your settlement check. Another check will be issued to you after your appeal is resolved.
25. What kinds of documents should I submit with my appeal?
Most helpful would be official documents, such as an SF-50, that can substantiate your claims with respect to the factors you dispute.
26. How will my appeal be resolved?
The settlement administrator will review claims by covered individuals who assert that they were wrongly denied payment or that the amount initially paid was incorrect. Although the settlement administrator will make the ultimate decision, CBP will be involved in investigating claims by covered individuals who contest the correctness of the data that CBP provided.
27. Can the settlement administrator reissue my check in a different name?
The award check can only be issued to an individual who is covered under the settlement.
28. If I receive a check for a deceased employee, can the settlement administrator reissue it in my name?
No. Deceased employees are not covered under the settlement (see #11 above).
29. If I do not receive my check, can the settlement administrator reissue it?
If you do not receive a check but believe you should have received one, contact the settlement administrator at 1-844-378-6551.
30. When will employees who did not receive their full payment because of OT cap limitations be notified of their entitlement to additional comp time?
The amount of compensatory time off owed to individuals whose settlement awards were limited because of the overtime cap will also be set forth on the letter accompanying employee checks. Although CBP ultimately controls when comp time is actually credited to employees’ leave accounts, NTEU will work with CBP on the timeline for distribution of compensatory time to employees; we expect that employees who are entitled to additional compensatory time because of the overtime cap will receive that compensatory time shortly after the award letters are distributed. A second allocation of additional comp time will be made after the second and final distribution of settlement funds to eligible employees who, for cap reasons, do not receive their full second payment.
31. How much additional comp time will be granted to employees who did not receive their full payment because of OT cap limitations?
Employees who came within $500 of the cap in fewer than 4 of the 5 years from FY 11-15 will receive comp time equivalent in value to the amount of their individual payment that was precluded by the cap up to an additional 24 hours. Employees who did not receive the full amount and who came within $500 of the cap in 4 of the 5 years will receive up to 40 additional hours. And employees who did not receive their full amount and came within $500 of the cap in all 5 years will receive up to 84 additional hours.
The additional comp time will be calculated using the COPRA OT hourly rate, or twice the employee’s regular hourly rate.
Example: A covered individual is due $5,000 in back overtime pay under the settlement distribution formula. That individual earned $34,500 in each year between FY11 and FY15, leaving aggregate cap room in the amount of $2,500. Because the individual came within $500 of the cap in all 5 years and cannot receive the full payment of $5,000, the individual will receive up to an additional 84 hours of comp time.
To calculate the amount of additional comp time, the $2,500 difference between the amount due under the formula ($5,000) and amount payable under the cap ($2,500) would be divided by twice the employee’s hourly pay rate (the COPRA hourly overtime rate) to arrive at the additional comp time due the employee. Assume the employee’s hourly rate is $40. $2,500 divided by $80 (twice the hourly rate) is 31.25. The employee will receive 31.25 comp hours in addition to the 16 hours granted to all covered employees under paragraph 7a of the settlement agreement.
32. When must those who receive additional comp time due to OT cap limitations use the additional comp time?
The settlement agreement requires that this comp time be used before sick and annual leave until the comp time is exhausted. Employees must use the comp time within 26 pay periods of when the comp time is credited to them. If CBP does not approve the use of the additional time within 26 pay periods of when it is credited, it will be cashed out at the COPRA double-time rate.
NTEU will work with CBP on the timeline for distribution of compensatory time to employees and when it must be taken. We expect that employees who are entitled to additional compensatory time because of the overtime cap will receive that compensatory time shortly after the award letters are distributed. Note, however, that CBP ultimately controls when additional comp time will be credited to employee leave accounts.
33. Why must comp time be used before other leave?
The prospect of cashing out unused comp time for potentially thousands of employees at the end of the fiscal year was a significant financial concern to CBP. To avoid this, the parties agreed to require comp time usage before other leave.
34. If I am on a premium pay shift, will I still receive premium pay when I use the comp time?
35. What has been done to fix the errors in the original data set?
CBP first provided data to the settlement administrator in March 2017. After the settlement administrator calculated payments, and as checks were scheduled to be mailed in early August 2017, NTEU discovered that CBP’s data contained several critical systemic errors. One of the errors involved CBP improperly crediting time as Border Patrol agents and Import Specialists for approximately 1,100 individuals. In a second error, CBP failed to credit time in a bargaining unit status from 2008 to 2010 for approximately 600 individuals who were improperly excluded during that time. CBP provided new data in October 2017 in which it purportedly fixed these errors.
CBP’s first data set also included deceased individuals. To fix this problem, NTEU, CBP and the settlement administrator identified deceased individuals and removed them from the list of payees. NTEU leaders had an opportunity to verify the accuracy of these identifications.
After the settlement administrator recalculated payment amounts based on the revised data provided in October 2017, and as checks were scheduled to be mailed in early 2018, NTEU discovered still more systemic errors in CBP’s data.
First, CBP provided inaccurate information regarding time in a covered bargaining unit position in 2003. According to CBP, this error stemmed from the fact that the format of its records from 2003, when components of various other agencies merged to form the Department of Homeland Security, did not align with CBP’s more recent data. After further investigation, CBP concluded that it is impossible to accurately track employees’ time in a covered bargaining-unit position prior to March 2003 because of the complexities of merging pre-DHS systems. Thus, NTEU needed to devise a compromise solution: any individual who occupied a covered bargaining-unit position for at least one day in FY2003 will now receive points for that year under the distribution formula. NTEU recognizes that this compromise approach may result in a small number of individuals receiving credit for FY2003 who did not, as otherwise required by the formula, work six months of that year in a covered position. But NTEU’s priority is to ensure that individuals who did work for six months or more in FY2003 – the vast majority of those covered by this compromise solution – were not improperly denied credit for FY2003 because of CBP’s faulty data.
Second, CBP credited some Agriculture Specialists with fewer days in the bargaining unit in 2007 than they actually worked. According to CBP, this error stemmed from the fact that its process for counting days in the bargaining unit used “0430” as the bargaining unit code for Agriculture Specialists, but some records displayed the code as “430.” As a result, CBP’s process, which used the four-digit code, did not pick up records that used the three-digit code. To fix this error, CBP has revised its process to capture records that use both the four-digit code and the three-digit code.
Third, CBP’s data captured time in bargaining unit positions that are not covered by the settlement. In its newly-provided data, CBP has only counted time in covered bargaining-unit positions—in general, CBP Officers and CBP Agriculture Specialists.