shaw bransford & roth case law update

Appeals Court: ICE Had No Duty to Bargain Before Unilateral Change to Overtime Policy

After warnings from the Office of Special Counsel (OSC) and the Government Accountability Office (GAO), the Department of Homeland Security, Immigration and Customs Enforcement (ICE) made a change to how it calculated overtime pay. The American Federation of Government Employees (AFGE) filed a grievance against ICE for unilaterally changing the policy without bargaining with the union. After the Federal Labor Relations Authority (FLRA) sided with ICE and determined that ICE had no duty to bargain with the union, AFGE petitioned the United States Court of Appeals for the District of Columbia Circuit for review of the FLRA’s final order. On June 11, 2019, the appeals court denied AFGE’s petition.

The appeals court decision summarizes the context and history of federal law governing overtime pay, starting with the general requirement that federal employees obtain administrative approval before working over eight hours in one day or forty hours in one workweek. However, federal law also provides for federal employees that, like law enforcement personnel, encumber positions “in which the hours of duty cannot be controlled administratively” due to “substantial amounts of irregular, unscheduled overtime.” The appeals court noted that Congress authorized agencies to provide special “premium pay,” ranging from an additional 10 to 25 percent of base pay. The additional percentage is based on “the frequency and duration of irregular, unscheduled overtime duty required in the position.” The Office of Personnel Management (OPM) issued regulations governing how to calculate the “administratively uncontrollable overtime,” or “AUO,” premium payments. OPM “adopted a policy under which the amount of the premium payment turns on the average number of AUO hours an eligible employee works per week.”

However, the appeals court observed, OPM’s regulations “did not originally specify how to account for leave time in that calculation.” According to the appeals court, “if an agency counts leave time toward the length of the applicable review period, an employee’s average weekly AUO and corresponding premium payment can drop.” In 1997, OPM issued Guidance instructing federal agencies to count leave time in their calculation of weekly AUO.

According to the appeals court, “[d]espite the OPM’s 1997 Guidance, ICE—following the lead of the Immigration and Naturalization Service, its predecessor—continued to exclude leave time such as military leave, annual leave and sick leave from its AUO calculations.” ICE’s practice flew under the radar for several years, before OSC warned Congress about abuse of the AUO premium pay provisions by ICE in a 2013 hearing. A year later, GAO reported that ICE was still administering AUO premium payments contrary to OPM’s 1997 Guidance. In May 2015, ICE ended its policy of excluding leave time from its calculation of average weekly AUO, and offered to engage in “post-implementation bargaining” with AFGE. AFGE rejected that offer.

The appeals court found that OPM’s 1997 Guidance on its face expressly forbade ICE’s previous AUO policy, making ICE’s previous AUO policy “unlawful” under OPM regulations and Guidance. Based on that finding, the appeals court held that ICE therefore had no duty under the law to bargain with the union prior to changing its unlawful policy. The appeals court cited 5 U.S.C. § 7117(a)(1), which states that “’the duty to bargain in good faith’ does not extend to matters ‘inconsistent with any Federal law or any Government-wide rule or regulation.’”)

For the above stated reason, the United States Court of Appeals for the District of Columbia Circuit denied AFGE’s petition for review.

Read the full case: AFGE v. FLRA.


This case law update was written by Conor D. Dirks, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

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