Border Patrol Pay Reform Act Frequently Asked Questions

From the National Border Patrol Council: The following are the most common questions or concerns we receive about the Border Patrol Agent Pay Reform Act with their corresponding answers.

View a copy of the bill that was recently signed by the president, here (PDF).

Question: Does the report that is required by the agency and the subsequent analysis by the GAO give the agency authority to unilaterally lower an agent’s rate of overtime pay from Level 1 to a lower level or from Level 2 to the basic rate of pay?

Answer: No. The most common section that has caused confusion is found close to the end of the law on page 25, line 21 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 agent’s rate of pay from that which the agent elected.

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 note the agency cannot assign someone lower than the Level 1 rate of pay.

Also, and on page 9, line 6 and ending on page 10, line 4 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 annuity” by choosing a level higher than the 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, thereby choosing what his/her retirement will be.

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, an agent takes a partial day of AL or SL, the agent will have an obligation to make up those hours. Under AUO a partial day of AL or SL is not excludable and if in a computation period an agent wishes to remain at the same percent of AUO, those hours will have to be accounted for.

Question: Will training days be excludable?

Answer: There are no more excludable days. The level an agent 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 their scheduled work day will be 10 hours and training will be done during that 10 hour block and so 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 could 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 the right of the agency or the Union to negotiate an alternative work schedule.

Question: Do the overtime hours under the BPAPRA go toward retirement?

Answer: Yes, see page 25, lines 1 through 20.

Question: Can an agent use comp time to go home early?

Answer: Yes, the Union and the agency are finalizing an MOU stating that Comp Time will be used in the exact same manner as AL. In other words it will be a right and not a privilege and subject to scheduling, an agent will have a right to use it just like AL.