Update on FLSA Exemption

On April 30, 2015, Customs and Border Protection’s Acting Director of Labor-Management Relations, Barry Carpenter, issued a notification to the National Border Patrol Council exempting all Border Patrol Agents from the Fair Labor Standards Act effective pay period eight (8), which is the period covering April 19, 2015 – May 2, 2015. The NBPC was notified that also effective pay period eight (8), excludable days would no longer be calculated towards the calculation of AUO. The agency’s reasoning was that excluding days from AUO calculations was an unlawful practice.

The NBPC disagrees with both assertions and is taking proper action. In the meantime, the NBPC negotiated an MOU that will ensure agents, at their election, will receive 2-hours of FEPA in pay period nine (9). This will be concurrent to the AUO calculation that agents are currently certified to receive. The loss of FLSA for pay period eight (8) will be approximately $150.00 per agent, but the FEPA and the AUO calculation in pay period nine (9) will be approximately $600.00 more per agent. The net gain after subtracting the FLSA will be approximately $450.00.

The MOU states that agents will be decertified the use of AUO beginning pay period ten (10), at which time the Overtime Transition Plan (OTM) MOU will become effective. This is not de-authorization. De-authorization is a personnel action and all agents must be given notice. Decertification; however, doesn’t require notice.

Because the NBPC disagrees with the FLSA exemption, until the BPAPRA is implemented, the NBPC is working with Congress on a legislative fix. The agency has agreed to also work towards that same fix. The sponsors of the BPAPRA have made it clear that it was not their intent nor was it the intent of Congress to exclude Border Patrol Agents from FLSA before the implementation of the law. If we are successful, the FLSA exemption will be reversed and all Border Patrol Agents will continue to earn FLSA until the implementation of the BPAPRA.

The Overtime Transition Plan previously referenced on this website will be fully implemented on May 17, 2015. With the implementation of the Overtime MOU and the legislative fix as referenced above, all agents will earn FEPA and FLSA and will not lose any money at all. Should you have any questions or concerns please contact your Local President or a NBPC Regional Vice President.