LegiStorm

What GAO Found

The Border Patrol Agent Pay Reform Act of 2014 (BPAPRA) established a new overtime compensation system for Border Patrol agents at U.S. Customs and Border Protection (CBP), within the Department of Homeland Security (DHS). Under BPAPRA, Border Patrol agents individually elect and are subsequently assigned by the agency to one of three rates of pay commensurate with the amount of scheduled overtime the agents elect or are assigned to work. The rates of pay are as follows: Level 1 tour of duty (2 hours daily overtime with 25 percent pay supplement), Level 2 (1 hour daily overtime with 12.5 percent pay supplement), and Basic (no overtime or corresponding supplement). Border Patrol agents elected their initial BPAPRA level during the November 1 to December 1, 2015, election period and CBP began paying agents under this new system effective January 10, 2016. Under BPAPRA, a Border Patrol agent’s overtime supplement constitutes basic pay for purposes of determining his or her retirement annuities, which are based on each agent’s highest average salary over a 3-year period. Among other things, BPAPRA required that CBP, in consultation with the Office of Personnel Management (OPM), develop and implement a plan to ensure pay assignment continuity during the 3 years of service before an agent becomes eligible for immediate retirement (referred to as the “control period”). The control period remains in effect during all subsequent service in a Border Patrol agent position. Specifically, the plan must ensure, to the greatest extent practicable, that an agent is assigned to a level of overtime pay during the control period that is consistent with his or her assigned average rate of overtime pay during the course of the agent’s career as a Border Patrol agent in order to protect the federal retirement fund. CBP issued its Pay Assignment Continuity Plan, dated March 15, 2016, in response to this requirement.

GAO found that CBP’s Pay Assignment Continuity Plan is designed to ensure Border Patrol agents’ overtime pay while in the control period is consistent with their career averages. Overall, the plan aligns with BPAPRA and OPM regulations, and provides that CBP is to identify agents who have reached the control period and ensure those agents’ overtime percentages are consistent with their career average overtime percentages. Of the 1,784 agents that entered the control period as of January 2016, CBP assigned approximately 96 percent to the Level 1 tour of duty, which set those agents’ career average overtime percentages to 25 percent. The remaining 4 percent of agents elected or were assigned to a lower tour of duty level to maintain consistency with their career average overtime percentage, among other things.

GAO found that implementation of the plan’s pay assignment continuity provisions may affect CBP’s workforce planning because agents that enter the control period are effectively locked into their tours of duty and overtime percentage for the remainder of their careers as agents, which could last an additional 10 years or more. Therefore, CBP’s staffing decisions will have to take into account the number of overtime hours that an individual agent is permitted or required to work during his or her control period. In addition, CBP, Border Patrol, and OPM officials stated that controlling agents’ tours of duty elections will create an administrative burden on CBP and Border Patrol’s management and potentially have adverse effects on operations. Officials from Border Patrol management and the National Border Patrol Council said that they are concerned about the lack of flexibility in scheduling overtime, and commented that operational decisions should not be driven by retirement pay continuity requirements. In addition, according to CBP, Border Patrol, and National Border Patrol Council officials, the lack of flexibility for agents to elect to work less overtime at certain points in their careers (such as for family or medical reasons) or during their control period may affect CBP’s hiring and retention of Border Patrol agents. Given that CBP’s plan to ensure retirement pay continuity has only recently been implemented, it is too soon to determine the extent of its effects on CBP’s workforce planning, individual agents’ retirement benefits, or CBP’s recruitment and retention of agents.

BPAPRA contains a provision for GAO to examine the effectiveness of CBP’s plan in ensuring that Border Patrol agents are not able to artificially enhance their retirement annuities. This report provides GAO’s assessment of CBP’s plan.

To determine the extent to which CBP’s plan ensures Border Patrol agents’ overtime compensation during their control period is consistent with agents’ career average overtime, GAO reviewed CBP’s plan and compared it with the pay assignment continuity provisions in BPAPRA and OPM regulations. GAO reviewed additional documentation provided by CBP, including documentation on the identification of agents that entered the control period in January 2016 and the calculations of agents’ career average overtime percentages. GAO also interviewed CBP, U.S. Border Patrol, National Border Patrol Council, and OPM officials on the approach used to develop and implement the plan and perspectives on its implementation.

GAO is not making any recommendations.

For more information, contact Rebecca Gambler at (202) 512-8777 or GamblerR@gao.gov.