Department of Homeland Security (DHS) Compensation Reform Plan

Description of DHS plan:
The Department of Homeland Security (DHS) pay reform plan would substitute Law Enforcement Availability Pay (LEAP) for the current system of Administratively Uncontrollable Overtime (AUO) and Fair Labor Standards Act (FLSA) pay for all Border Patrol agents. This would eliminate all compensation for work beyond 10 hours a day and force them to work for free.

The DHS plan claims it will achieve uniformity in the current overtime system; however, that is not possible when DHS intends to leave Customs and Border Protection officers under the Customs Officer Pay Reform Act (COPRA).  CBP officers receive COPRA overtime for all hours worked beyond eight hours a day, which doubles their normal pay rate for overtime worked.

Disadvantages of DHS compensation reform plan:

•    Requires Border Patrol agents to work for free beyond ten hours a day.

•    Allows the agency to schedule agents to work an infinite amount of hours for ZERO compensation.

•    Reduces agents’ pay by an average of $7,000 a year (the only group of employees singled out for this sacrifice).

•    Reallocates the so-called savings of $110 million to fund more unnecessary levels of management and increased salaries for each level.

•    Further lowers morale.

NBPC Recommendation to Congress: Demanding that employees work for free is grossly unfair to frontline Border Patrol agents and their families.  All federal law enforcement agents make sacrifices every day to uphold the laws of the United States, however this plan singles out Border Patrol agents asking them to go above and beyond.  To date, 114 agents have made the ultimate sacrifice in the line of duty, more than any other federal agency.

On behalf of the 17,000 Border Patrol agents represented by the National Border Patrol Council (NBPC), Congress is urged to reject this ill-conceived proposal. The NBPC has developed an alternative plan that saves the government money, reforms the antiquated overtime policy currently used and protects the dedicated men and women of the United States Border Patrol.


National Border Patrol Council Rebuttal to AP Analysis of Border Patrol OT

February 6, 2012 – On Sunday, millions watched the New York Giants and the New England Patriots in Super Bowl XLVI. Some watched their teams and hoped for victory, while others watched because they enjoy football and to see which team's strategy leads them to victory. Football fans understand that neither the Giants nor the Patriots would have made it to the Super Bowl if the teams decided to play less defensive players against teams that were less of a threat. Fans also know that the Giants would have lost the game if they decided to take the entire defensive line out of the game in the last minute in an effort to save money because they were winning. This same concept applies to the United States border and may help clear up any confusion for those who read the recent Associated Press article written by reporter Alicia A. Caldwell, titled "AP Analysis: Border Patrol OT up as arrests drop."
Although there are important parallels to sports and the border, the major difference is the United States only employs a defense and that defensive line is the U.S. Border Patrol. Unfortunately, many politicians lack the political will to implement an offense and career politicians in the Border Patrol practically eliminated the few offensive positions that once existed (interior operations and stations) and were too effective in the past. For this reason, the U.S. Border Patrol has to play into overtime every minute to defend against the constant threat posed by smugglers, cartels, and terrorists who are continually looking for opportunities to exploit weaknesses in the defense of the U.S. Unlike football, a gap in coverage does not just end a game, a season, or a chance at a trophy, it means an opportunity for terrorists, narcotics, weapons, or other contraband to be smuggled into the United States.

Northern border versus southern border

In the AP article, Caldwell questions the agency's use of the same overtime system for both borders (northern and southern). Caldwell presents the data regarding the number of agents and the total dollar amount paid in Administratively Uncontrollable Overtime (AUO). According to the data, AUO doubled when the number of agents doubled. This should come as no surprise considering AUO was designed to save the government money while at the same time providing 24/7 coverage on the border. Although the number of agents doubled, the Border Patrol still does not have enough agents to provide 24/7 coverage due to the existing strategy of defense and the lack of a good offense. As a result, AUO is still necessary to maintain a defensive line.

Caldwell presents the number of arrests for the northern and southern border and suggests the borders should be treated differently due to a variance in apprehensions. Although the southern border may have more apprehensions, both borders pose the same threat and require the same defensive line, regardless of apprehensions. The article fails to analyze the fact that there are only 2,237 agents responsible for defending 4,000 miles of northern border, whereas there are nearly 15,000 agents responsible for defending 2,000 miles of southern border. The so-called analysis seems to ignore how only 14% of the Border Patrol is employed to defend 65% of the U.S. border, a majority of which is very remote, out-of-sight from the general public, and not always patrolled due to insufficient staffing.

Reductions in arrests
If one were to cite a reduction in apprehensions as a critical part of the discussion, one should at least consider the reasons for the reductions.  One significant factor is the lack of jobs due to the economy. This factor is the most meaningful because it supports the argument the National Border Patrol Council has been promoting for years regarding an offensive strategy, which involves going after employers who knowingly hire illegal aliens and making it difficult for illegal aliens to obtain employment in the United States.

Another notable factor is the restrictions imposed on the authority of agents implemented by career politicians in the Border Patrol and Customs and Border Protection (CBP). In other words, when Border Patrol agents are directed to stay in one place, or prohibited from performing operations at transportation hubs or areas where illegal aliens are known to congregate, then apprehensions will decrease. In 1995, to justify Operation Gatekeeper with statistics and prove the success of the operation, Border Patrol management implemented numerous restrictions in order to decrease apprehensions in areas away from the border. The number of restrictions grew over the years with each new political appointed chief and commissioner. As expected, the number of apprehensions also decreased.

Although those factors impacted the number of apprehensions, the need for AUO on both borders continues for many reasons. Changes in policies and methods related to completing the necessary paperwork and entering detainees into computer systems have changed and substantially increased the amount of time it takes to process them. More importantly, while the number of people entering the country to seek employment may decrease, the threat does not decrease as the number of smuggling operations related to weapons, narcotics, and other contraband continues regardless of any proclaimed success.

Four shifts

According to the article, Border Patrol Deputy Chief Ronald D. Vitiello's said: "the Border Patrol is considering four shifts of ten hours. For those who are unaware, under four shifts, the number of agents will decrease during certain hours. Unfortunately, under the leadership of Chief Fisher, many stations implemented four shifts regardless of the decrease in manpower because under Chief Fisher's command, the budget takes priority over border security. As such, this is just one more factor to consider when discussing a decrease in apprehensions. Unlike football, where everyone can watch when the other team makes a touchdown, successful smuggling operations occur in remote areas, often go unnoticed, and are rarely viewed on a widescreen. Unless of course the smuggler films how he lifts the "secure" border fence with a jack like the recent YouTube video posted under the "Secure Borders News" section of www.nbpc.net.

More importantly, a reduction in the number of agents is unsafe and increases the likelihood of a U.S. Border Patrol agent being killed in the line of duty, regardless of what border they are defending. Although apprehensions have decreased, the number of agents dying in the line of duty will not decrease as long as smugglers have more rights than agents, and the costs of securing the border are more important than providing a secure border.

Law Enforcement Availability Pay

According to the article, Sharon Snellings, Customs and Border Protection's (CBP) deputy assistant commissioner of human resources said, "agency officials also are looking at shifting to another type of overtime system used by other law enforcement agencies that she said could save the agency about $70 million a year." 

The overtime system mentioned by Snellings is Law Enforcement Availability Pay (LEAP). LEAP only provides 25% on the base salary for an infinite amount of extra work.  LEAP is primarily used for criminal investigators and special agents who have a higher journeyman level pay than Border Patrol agents. Yet, the CBP proposal did not include increasing the journeyman level to match the level paid to other federal law enforcement officers under LEAP. LEAP was specifically designed to compensate investigators for the time they are available in an on-call status due to the variances in manpower, shifts, and the type of work performed. It clearly was not intended for 24/7 operations that required coverage at all times.

CBP claimed the purpose of the pay reform proposal was to provide uniformity with overtime systems within CBP. However, the CBP proposal does not change the overtime system used by CBP Officers. Instead, CBP officers continue to earn overtime under the Customs Officer Pay Reform Act (COPRA), which provides higher overtime and premium rates. So, uniformity under the CBP pay reform means CBP Officers will continue earning higher rates of overtime and premium pay, while Border Patrol agents will receive an immediate seven percent cut in pay and will be required to work excessive hours for free (Pay Reform Comparison Chart).

Alleged savings

Snellings claims a savings, but fails to mention how the savings will be used to provide a 25% pay increase to high-ranking management officials in CBP by placing them under LEAP, even though the majority of their job is administrative and requires little overtime. Much of the savings will undoubtedly go towards the unnecessary, redundant layers of management that have been added over the years. For example, since 2000, Border Patrol created two additional levels of management to the station chain of command: field operations supervisor and shift operations supervisor. Recently, Border Patrol announced the large station command structure, which multiplies the number of management positions in every large station.  Currently, Border Patrol is preparing to convert the station commander position to the Senior Executive Series (SES), which will result in every level of management receiving a pay increase, while they decrease the pay of their subordinates.

At the sector level, the Border Patrol added a division chief position between the assistant chief and deputy chief. Border Patrol also implemented a large sector command, which multiplied even more management positions. In addition, the Border Patrol created an adjutant position that is filled by a supervisory border patrol agent to serve as a secretary and chauffer for sector chiefs. Finally, in an attempt to be like the Department of Defense, the Officer of Border Patrol implemented the joint command structure, which added a new joint command chief to manage the many sector chiefs.

Therefore, if the Administration or Congress is interested in saving money in the Border Patrol, the first place to look is the excessive number of management positions that the Border Patrol created in the past ten years. In CBP, the Administration or Congress should demand a review of the many parallel kingdoms that were created when Border Patrol was placed in CBP. Two prime examples are Mission Support and Labor and Employee Relations. These two components compete with one another and should be merged to reduce the multiple layers of management that exists within each component.

The National Border Patrol Council and its members are committed to saving the government money and reducing the debt; however, these measures should not come at the expense of rank-and-file Border Patrol Agents by having them become the only federal employees in CBP sacrificing a seven percent cut in pay and working endless overtime hours for free.  This is exactly what will happen if Border Patrol agents are placed under LEAP. There are many other ways to stop excessive spending in CBP, but none of them will ever happen because they involve reducing the unnecessary layers of management that continue to grow at an alarming rate and eliminating or merging some of the parallel kingdoms that exist within CBP.

Months ago, the National Border Patrol Council proposed an alternative overtime system to the leadership of the Border Patrol and CBP. Under the proposed plan, CBP would acquire more flexibility and reduced costs related to overtime. However, CBP would not be able to make Border Patrol agents work endless hours for free. Remarkably, Border Patrol and CBP were not interested and instead continue to promote a proposal with misleading statements about uniformity and imaginary savings. For this reason, the NBPC is working with Congressman Silvestre Reyes to develop a better alternative to the impractical, inequitable, and punitive CBP proposal. The alternative must ensure Border Patrol agents are properly compensated for the endless hours they work to defend the country from the constant threat posed by smugglers, terrorists, and cartels.

For more information please contact George McCubbin, president at  This email address is being protected from spambots. You need JavaScript enabled to view it. .


The National Border Patrol Council is a professional labor union representing more than 17,000 Border Patrol Agents and support staff. The NBPC was founded in 1965, and is recognized as one of the most effective labor organizations in the Federal sector.

The White House
Office of the Press Secretary
For Immediate Release 
December 27, 2010

Executive Order - Recruiting and Hiring Students and Recent Graduates



By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, it is hereby ordered as follows:

Section 1. Policy. The Federal Government benefits from a diverse workforce that includes students and recent graduates, who infuse the workplace with their enthusiasm, talents, and unique perspectives. The existing competitive hiring process for the Federal civil service, however, is structured in a manner that, even at the entry level, favors job applicants who have significant previous work experience. This structure, along with the complexity of the rules governing admission to the career civil service, creates a barrier to recruiting and hiring students and recent graduates. It places the Federal Government at a competitive disadvantage compared to private-sector employers when it comes to hiring qualified applicants for entry-level positions.

To compete effectively for students and recent graduates, the Federal Government must improve its recruiting efforts; offer clear paths to Federal internships for students from high school through post-graduate school; offer clear paths to civil service careers for recent graduates; and provide meaningful training, mentoring, and career-development opportunities. Further, exposing students and recent graduates to Federal jobs through internships and similar programs attracts them to careers in the Federal Government and enables agency employers to evaluate them on the job to determine whether they are likely to have successful careers in Government.

Accordingly, pursuant to my authority under 5 U.S.C. 3302(1), and in order to achieve a workforce that represents all segments of society as provided in 5 U.S.C. 2301(b)(1), I find that conditions of good administration (specifically, the need to promote employment opportunities for students and recent graduates in the Federal workforce) make necessary an exception to the competitive hiring rules for certain positions in the Federal civil service.

Sec. 2. Establishment. There are hereby established the Internship Program and the Recent Graduates Program, which, along with the Presidential Management Fellows Program, as modified herein, shall collectively be known as the Pathways Programs. I therefore direct the Director of the Office of Personnel Management (OPM) to issue regulations implementing the Pathways Programs consistent with this order, including:

(a) a description of the positions that executive departments and agencies (agencies) may fill through the Pathways Programs because conditions of good administration necessitate excepting those positions from the competitive hiring rules;

(b) rules governing whether, to what extent, and in what manner public notice should be provided of job opportunities in the Pathways Programs;

(c) a description of career-development, training, and mentorship opportunities for participants in the Pathways Programs;

(d) requirements that managers meaningfully assess the performance of participants in the Pathways Programs to identify those who should be considered for conversion to career civil service positions;

(e) a description of OPM oversight of agency use of the Pathways Programs to ensure that (i) they serve as a supplement to, and not a substitute for, the competitive hiring process, and (ii) agencies are using the Pathways Programs in a genuine effort to develop talent for careers in the civil service;

(f) a description of OPM plans to evaluate agencies' effectiveness in recruiting and retaining talent using the Pathways Programs and of the satisfaction of Pathways Programs participants and their hiring managers; and

(g) standard naming conventions across agencies, so that students and recent graduates can clearly understand and compare the career pathway opportunities available to them in the Federal Government.

Sec. 3. Internship Program. The Internship Program shall provide students in high schools, community colleges, 4-year colleges, trade schools, career and technical education programs, and other qualifying educational institutions and programs, as determined by OPM, with paid opportunities to work in agencies and explore Federal careers while still in school. The Internship Program would replace the existing Student Career Experience Program, established pursuant to Executive Order 12015 of October 26, 1977. The following principles and policies shall govern the Internship Program:

(a) Participants in the program shall be referred to as "Interns" and shall be students enrolled, or accepted for enrollment, in qualifying educational institutions and programs, as determined by OPM.

(b) Subject to any exceptions OPM may establish by regulation, agencies shall provide Interns with meaningful developmental work and set clear expectations regarding the work experience of the intern.

(c) Students employed by third-party internship providers but placed in agencies may, to the extent permitted by OPM regulations, be treated as participants in the Internship Program.

Sec. 4. Recent Graduates Program. The Recent Graduates Program shall provide individuals who have recently graduated from qualifying educational institutions or programs with developmental experiences in the Federal Government intended to promote possible careers in the civil service. The following principles and policies shall govern the Recent Graduates Program:

(a) Participants in the program shall be referred to as "Recent Graduates" and must have obtained a qualifying degree, or completed a qualifying career or technical education program, as determined by OPM, within the preceding 2 years, except that veterans who, due to their military service obligation, were precluded from participating in the Recent Graduates Program during the 2-year period after obtaining a qualifying degree or completing a qualifying program shall be eligible to participate in the Program within 6 years of obtaining a qualifying degree or completing a qualifying program.

(b) Responsibilities assigned to a Recent Graduate shall be consistent with his or her qualifications, educational background, and career interests, the purpose of the Recent Graduates Program, and agency needs.

Sec. 5. Presidential Management Fellows Program. The Presidential Management Fellows (PMF) Program is an existing program established pursuant to Executive Order 13318 of November 21, 2003, that aims to attract to the Federal service outstanding men and women from a variety of academic disciplines at the graduate level who have a clear interest in, and commitment to, the leadership and management of public policies and programs. The following requirements shall govern the PMF Program upon the revocation of Executive Order 13318, as provided in section 8 of this order:

(a) Participants in this program shall continue to be known as Presidential Management Fellows (PMFs or Fellows) and must have received, within the preceding 2 years, a qualifying advanced degree, as determined by OPM.

(b) Responsibilities assigned to a PMF shall be consistent with the PMF's qualifications, educational background, and career interests, the purposes of the PMF Program, and agency needs.

(c) OPM shall establish the eligibility requirements and minimum qualifications for the program, as well as a process for assessing eligible individuals for consideration for appointment as PMFs.

Sec. 6. Appointment and Conversion. (a) Appointments to any of the Pathways Programs shall be under Schedule D of the excepted service, as established by section 7 of this order.

(b) Appointments to the Recent Graduates or PMF Programs shall not exceed 2 years, unless extended by the employing agency for up to 120 days thereafter.

(c) Appointment to a Pathways Program shall confer no right to further Federal employment in either the competitive or excepted service upon the expiration of the appointment, except that agencies may convert eligible participants noncompetitively to term, career, or career conditional appointments after satisfying requirements to be established by OPM, and agencies may noncompetitively convert participants who were initially converted to a term appointment under this section to a career or career-conditional appointment before the term appointment expires.

Sec. 7. Implementation. (a) Civil Service Rule VI is amended as follows:

(i) 5 CFR 6.1(a) is amended to read:

OPM may except positions from the competitive service when it determines that (A) appointments thereto through competitive examination are not practicable, or (B) recruitment from among students attending qualifying educational institutions or individuals who have recently completed qualifying educational programs can better be achieved by devising additional means for recruiting and assessing candidates that diverge from the processes generally applicable to the competitive service. These positions shall be listed in OPM's annual report for the fiscal year in which the exceptions are made.

(ii) 5 CFR 6.2 is amended to read:

OPM shall list positions that it excepts from the competitive service in Schedules A, B, C, and D, which schedules shall constitute parts of this rule, as follows:

Schedule A. Positions other than those of a confidential or policy-determining character for which it is not practicable to examine shall be listed in Schedule A.

Schedule B. Positions other than those of a confidential or policy-determining character for which it is not practicable to hold a competitive examination shall be listed in Schedule B. Appointments to these positions shall be subject to such noncompetitive examination as may be prescribed by OPM.

Schedule C. Positions of a confidential or policy-determining character shall be listed in Schedule C.

Schedule D. Positions other than those of a confidential or policy-determining character for which the competitive service requirements make impracticable the adequate recruitment of sufficient numbers of students attending qualifying educational institutions or individuals who have recently completed qualifying educational programs. These positions, which are temporarily placed in the excepted service to enable more effective recruitment from all segments of society by using means of recruiting and assessing candidates that diverge from the rules generally applicable to the competitive service, shall be listed in Schedule D.

(iii) The first sentence of 5 CFR 6.4 is amended to read:

Except as may be required by statute, the Civil Service Rules and Regulations shall not apply to removals from positions listed in Schedules A, C, or D or from positions excepted from the competitive service by statute.

The second sentence of 5 CFR 6.4 is to remain unchanged.

(iv) The first sentence of 5 CFR 6.6 is amended to read:

OPM may remove any position from or may revoke in whole or in part any provision of Schedule A, B, C, or D.

The second sentence of 5 CFR 6.6 is to remain unchanged.

(b) The Director of OPM shall:

(i) promulgate such regulations as the Director determines may be necessary to implement this order;

(ii) provide oversight of the Pathways Programs;

(iii) establish, if appropriate, a Government-wide cap on the number of noncompetitive conversions to the competitive service of Interns, Recent Graduates, or PMFs (or a Government-wide combined conversion cap applicable to all three categories together);

(iv) administer, and review and revise annually or as needed, any Government-wide cap established pursuant to this subsection;

(v) provide guidance on conducting an orderly transition from existing student and internship programs to the Pathways Programs established pursuant to this order; and

(vi) consider for publication in the Federal Register at an appropriate time a proposed rule seeking public comment on the elimination of the Student Temporary Employment Program, established through OPM regulations at 5 CFR 213.3202(a).

(c) In accordance with regulations prescribed pursuant to this order and applicable law, agencies shall:

(i) use appropriate merit-based procedures for recruitment, assessment, placement, and ongoing career development for participants in the Pathways Programs;

(ii) provide for equal employment opportunity in the Pathways Programs without regard to race, ethnicity, color, religion, sex, national origin, age, disability, sexual orientation, or any other non merit-based factor;

(iii) apply veterans' preference criteria; and

(iv) within 45 days of the date of this order, designate a Pathways Programs Officer (at the agency level, or at bureaus or components within the agency) to administer Pathways Programs, to serve as liaison with OPM, and to report to OPM on the implementation of the Pathways Programs and the individuals hired under them.

Sec. 8. Prior Executive Orders. (a) Effective March 1, 2011, Executive Order 13162 (Federal Career Intern Program) is superseded and revoked. Any individuals serving in appointments under that order on March 1, 2011, shall be converted to the competitive service, effective on that date, with no loss of pay or benefits.

(b) On the effective date of final regulations promulgated by the Director of OPM to implement the Internship Program, Executive Order 12015 (pursuant to which the Student Career Experience Program was established), as amended, is superseded and revoked.

(c) On the effective date of final regulations promulgated by the Director of OPM to implement changes to the PMF Program required by this order, Executive Order 13318 (Presidential Management Fellows Program), as amended, is superseded and revoked.

Sec. 9. General Provisions. (a) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(b) Nothing in this order shall be construed to impair or otherwise affect:

(i) authority granted by law, regulation, Executive Order, or Presidential Directive to an executive department, agency, or head thereof; or

(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

December 27, 2010



OT Lawsuit

If you are a border patrol agent who is a member of the NBPC union, click here for info to sign up for the overtime lawsuit.