EXPANDED LEAVE ON THE HORIZON FOR FEDS

AFGE applauds efforts both in Congress and the White House to expand paid and unpaid family leave for federal workers.

In Congress, the Comprehensive Paid Family Leave Act would provide federal workers with 12 weeks of paid leave per year to care for an ill family member, their own medical condition, or for circumstances that arise when the employee or a family member is detailed for covered duty in the armed forces.

The bill was introduced by lead sponsors Sen. Brian Schatz, D-Hawaii, and Rep. Don Beyer, D-Va. Currently, federal workers may take up to 12 weeks of unpaid leave for these reasons under the Family and Medical Leave Act (FMLA). Schatz and Beyer’s bill would give federal workers paid leave for these reasons.

A week earlier, President Joe Biden issued a memo to federal agencies urging them to expand access to unpaid leave for additional purposes and extend it to workers in their first year on the job. He further directed the Office of Personnel Management to issue recommendations for expanding the purposes for which paid and unpaid leave can be taken, including dealing with unexpected emergencies including the death of a family member or recovery from domestic violence.

“President Biden's efforts to use federal workforce policy to encourage other employers to provide greater flexibility for American workers stands in stark contrast to efforts led by House Republicans to strip remote and hybrid work arrangements away from federal employees and deny American workers flexibilities they expect,” said AFGE President Everett Kelley. “President Biden's approach will strengthen the government's ability to recruit and retain top talent, while legislation like the SHOW UP Act will only harm those efforts and, ultimately, the American people.”

AFGE has been a champion for paid family leave for government workers. We won 12 weeks of paid parental leave for federal employees in 2019. Last year we won better paid leave benefits for D.C. government workers.

Your Guide to Pay and Benefits During a Shutdown

As of Thursday, lawmakers and the White House had just eight days to complete negotiations and pass a short-term measure to fund the government and avert a shutdown beginning next weekend.

Although lawmakers generally seek to avoid lapses in appropriations in election years, a number of issues have prevented them from reaching agreement thus far, including requests from the Biden administration for additional aid for Ukraine, coronavirus response funding, and the permitting reform proposal from Sen. Joe Manchin, D-W.V. Appropriators also are reportedly at odds over how long a continuing resolution should run, with conservatives urging the deal to go until 2023 in the hopes that Republicans gain majorities in the House and Senate.

Here is what federal employees can expect in terms of pay and benefits if the government shutters, based on guidance from the Office of Personnel Management, updated last year after a number of updates were signed into law following the 35-day partial government shutdown that began in late 2018.

Salaries: Furloughed federal workers and employees who have been deemed essential and forced to work during a lapse in appropriations will not be paid for the duration of the shutdown, although thanks to a 2019 law, they all will automatically be granted back pay to cover the shutdown once funding is restored. Congress previously had to approve back pay for furloughed federal workers following each shutdown, but that process was automated after the 2018-2019 appropriations lapse.

Similarly, employees who worked overtime during the shutdown will be granted premium pay, albeit not until the government is funded.

Bonuses: Agencies may award performance bonuses during a shutdown, but those awards won’t be paid until after the government reopens.

Unemployment: Federal workers who are furloughed are eligible for unemployment compensation in some states. But in many cases, they must return the money once they receive back pay.

Health care: Furloughed feds will maintain their coverage under the Federal Employees Health Benefits Program during a lapse in appropriations. Premiums accrue over the course of a shutdown, and then are taken out of employees’ first paycheck after the government reopens.

Similarly, employees enrolled in the Federal Employees Dental and Vision Insurance Program will maintain their coverage, with unpaid premiums being withheld from their first post-shutdown paycheck. This marks a shift from previous shutdowns, when—if the shutdown persisted for longer than two pay periods—insurance carriers could allow those employees’ policies to lapse.

Additionally, federal workers may now make changes to their insurance plans due to significant life events during a shutdown. Regulations issued by OPM in 2020 clarified that agency HR employees, previously furloughed during appropriations lapses, are deemed essential for the purposes of handling FEHBP enrollments.

Retirement benefits: Federal retirees in the Civil Service Retirement System and the Federal Employees Retirement System will still receive their scheduled annuity payments during a shutdown. Contributions to the Thrift Savings Plan will be paused until the government reopens.

Leave: Federal workers cannot substitute paid leave for unpaid furloughs when the government is closed. Previously scheduled leave that occurs during a lapse in appropriations will be cancelled, although OPM stressed that does not mean excepted employees cannot request time off during a lapse in appropriations.

“This does not mean that an excepted employee cannot seek approval to be excused from duty during a lapse,” OPM wrote. “An agency may excuse an excepted employee from duty and place the employee in furlough status for approved periods. An agency may allow an excepted employee to be off duty during periods when the employee was previously scheduled to be on paid leave.”

Portman, Sinema, Lankford, Kelly Introduce Bipartisan Legislation to Raise Border Patrol Agent Pay, Create Border Patrol Reserve

https://www.hsgac.senate.gov/media/minority-media/portman-sinema-lankford-kelly-introduce-bipartisan-legislation-to-raise-border-patrol-agent-pay-create-border-patrol-reserve

Thursday, August 4, 2022

WASHINGTON, DC – Today, U.S. Senators Rob Portman (R-OH), Ranking Member of the Senate Homeland Security and Governmental Affairs Committee, Kyrsten Sinema (D-AZ), James Lankford (R-OK), and Mark Kelly (D-AZ) introduced the bipartisan Border Patrol Enhancement Act to establish the Border Patrol Reserve and provide a much-needed pay raise to our Border Patrol agents during this current border crisis.  This bill would create a 2,500 agent reserve force, increase the number of total Border Patrol agents to 20,500, and raise Border Patrol pay by 14 percent to be more competitive with other federal law enforcement agents, including other agents under the Department of Homeland Security. The legislation also standardizes professional development and training requirements for all Border Patrol agents. 

“Every time I’ve visited with Border Patrol, they have made it clear that they need increased funding to recruit and retain agents. At a time when our southern border crisis is heading towards a catastrophe, we must provide Border Patrol with the tools and resources they need to do their jobs. That’s why I am pleased to introduce this bipartisan legislation to address recruitment and retention challenges by authorizing a raise for agents, and create a Border Patrol Reserve to provide the support our Border Patrol agents need as the influx of unlawful migrants and illicit narcotics continues to worsen,” said Portman. 

“Border Patrol must maintain a strong workforce to secure the border, protect our communities, and ensure the fair and humane treatment of migrants. Border Patrol does not have the staffing or resources to meet that goal – our bipartisan legislation addresses these issues to adequately support Border Patrol as they protect Arizona communities,” said Sinema. 

“I remain extremely grateful to Border Patrol agents for staying focused on our national security, even in this season of chaos on the border,” said Lankford. “Biden continues to encourage illegal border crossers to enter the US, and our Border Patrol stand between US citizens and people from 150 countries coming into our nation, potentially connected to the Mexican cartels or terrorist organizations worldwide. I’ve heard from Border Patrol directly that morale is low because their hands are tied when trying to enforce the law, which makes it difficult to recruit and retain the best and brightest. We must ensure the Border Patrol has the people and tools they need to do their job and the incentives to bring in the best people. Our national security depends on it.”  

“Border Patrol agents put their lives on the line every day to secure the border and keep our communities safe. Our bipartisan bill will give the hardworking men and women of the Border Patrol the support, resources, and pay raises they deserve. We’ll keep working with Republicans and Democrats to ensure that our law enforcement has the tools needed to recruit and retain agents so we can ensure a secure, fair, and orderly process at the border,” said Kelly.

"On behalf of the men and women of the National Border Patrol Council, I want to thank and applaud Senators Portman, Sinema, Lankford and Kelly for their leadership in introducing legislation that will secure critical resources in an effort to secure our borders,” said Brandon Judd, President, National Border Patrol Council. “The National Border Patrol Council staunchly supports this legislation because we are currently witnessing unprecedented public safety and public health crises, with record numbers of Americans dying of drug overdoses and record numbers of individuals defying our laws with no consequences and entering our country illegally, oftentimes undetected. This legislation will dramatically enhance the ability to recruit and retain highly professional Border Patrol Agents and invest in these Agents who risk their lives trying to secure our border every day. The ongoing lawlessness and the tragic loss of lives cannot continue and we urge the Senate to consider and pass the Border Patrol Enhancement Act immediately." 

AGUIRRE FLSA LAWSUIT UPDATE AS OF 6/24/2022

CURRENT STATUS (June 24, 2022):  Excellent news! The Government completed its payment and finally provided us with the necessary accounting so that we can make disbursements.  We have run Plaintiffs’ addresses through the National Change of Address database, and we are in the process of printing checks.  Checks will be mailed, along with a letter explaining the payment and the deductions, no later than July 5, 2022. 

The only remaining issue is verifying the offsets that the Government took against the settlement awards for 53 Plaintiffs pursuant to the Treasury Department Offset Program.  We have reached out to all 53 Plaintiffs who had deductions due to offsets but are waiting to hear back from some regarding whether the offsets are accurate.  This will not impact the timing of the payments.  As mentioned, all checks will be mailed by July 5.  Please allow two weeks after that date to contact us if you have not received your check.  The USPS has been slow.

The Parties will file a status report or dismiss the case on or before July 15, 2022. 

Previous UPDATE (May 26, 2022)

AGUIRRE v. UNITED STATES

(BORDER PATROL AGENT FLSA OVERTIME LAWSUIT)

 (May 26, 2022):  While the Court denied our request for a conference regarding our concern that it has taken the Government an inordinate amount of time to fund the settlement, the Court did acknowledge the legitimacy of Plaintiffs’ frustration caused by the Government’s delay and ordered the Parties to submit a status report by June 17. This prompted the Government to action.  On May 13, 2022, the Government began transferring portions of the settlement monies to us.  However, the first payment was for only 12 of the 5,722 Plaintiffs, and some of those 12 were allocated only partial payments.  This could be because the individual Plaintiffs at issue are subject to federal offsets for debts.  The Government made similar payments on several more occasions since May 13, 2022, and again some of those payments for these small groups of Plaintiffs were only partial payments, while others appeared to be overpayments.  To confuse matters more, in addition to the underpayments, the Government has failed to provide us with an accounting showing how the payments, which do not match the amounts in the settlement agreement (Exhibit A) should be distributed.  We also need the accounting to confirm that the underpayments for certain Plaintiffs result from federal debt offsets, and not from some error made by the Judgment Fund. The settlement agreement requires the Government to provide an accounting when the payments are made.

We have made daily requests to the Department of Justice attorney for an accounting of the payments made.  To date, she has failed to provide the required accounting but has provided assurances that she will be providing the accounting soon.  Unfortunately, we cannot distribute the funds we have received until the Government provides us with the required accounting.  Given the underpayments, and the overpayments, without the accounting, we cannot match appropriate settlement amounts to specific plaintiffs.  

Accordingly, the monies will remain in the dedicated IOLTA account until we receive the accounting, at which time, we will begin to distribute the funds.  We will update our website with information regarding whose checks have been mailed as we begin the distribution process.  Under the Settlement Agreement, we have 21 days from the date that the Government pays us AND provides the necessary accounting, to distribute the funds.

Of course, the law firm is not paid  any fees until the Government has made all of the payments.

Calexico Station Union Vice President Lombardo Amaya Passed Away on April 26, 2022

Local 2554 was saddened by the news that long-time Local 2554 Union President and current Vice President of Calexico Station, Lombardo Amaya, had passed away due to complications with a recent heart surgery on Tuesday morning, April 26, 2022. Lombardo was not only a Border Patrol Agent at Calexico Station, but spent many years representing the Local 2554 membership with a multitude of issues. Lombardo will always be remembered as a strong voice and advocate for the membership of El Centro Border Patrol Sector, but also as a close friend to the many people that knew him.

This Local, for one, will never forget the many lessons that Lombardo taught us in all his years of service. Lombardo was very knowledgeable with all things Union-related and he used that knowledge to help so may people.

We would like to express our sincere condolences to the family of Lombardo and the many people that will be affected by such a tragic loss.

BORDER PATROL AGENT FLSA OVERTIME LAWSUIT "AGUIRRE"

STATUS (February 3, 2022): Excellent News! Yesterday, the United States authorized approval of the settlement agreement and the parties signed the agreement.  In the parties’ Joint Status Report filed with the Court yesterday, the parties notified the Court that the agreement had been fully executed and explained that:

The United States will disburse funds in accordance with the agreement.  Distribution is expected to take some time and will be made in batches until the funds for each of the 5,722 plaintiffs has been disbursed to plaintiffs’ counsel, following any administrative offsets for debts owed to the United States.  Once disbursements are complete, the parties will stipulate to the dismissal of this action with prejudice. (Joint Status Report, Dkt. 87). 

 

The next status report is due on May 2, 2022.  We are hopeful that all payments will be made prior to that date and that we will be able to dismiss the case. 

 

Once we receive our first batch of payments, we will distribute those checks and continue to distribute each batch as they come in until all 5,722 plaintiffs have been paid.  Please note, that it can take the Judgment Fund 30 – 60 days to process the first batch of payments once it receives notice of the settlement from the United States.  We will post a distribution log on our website so you can check whether your check has been mailed. In Abad, the Government took approximately three months to make all payments.

 

To ensure that you receive your damages monies, it is extremely important if you have moved since you signed up for the case that you let us know (if you have not already done so).

Your settlement award will be reduced by our contingency attorney fee to which you agreed when you signed up for the case of 25% of your gross settlement amount. However, we were able to negotiate with the Government to recover $109,412.15 in hourly attorneys’ fees, and this reduces the contingent fee paid by each plaintiff to a slightly lesser percentage of 24.79%.

AGUIRRE FLSA LAWSUIT UPDATE 6/02/2021

AGUIRRE v. UNITED STATES

(BORDER PATROL AGENT FLSA OVERTIME LAWSUIT)

 

STATUS (March 19, 2021): By March 19, 2021, we will have finished mailing a letter to all 5,727 plaintiffs that explains the proposed settlement framework in this Fair Labor Standards Act (FLSA) overtime pay lawsuit, your recovery period, the pay periods that will be included in that recovery period, and the associated damages amount you will receive should the Government recommend the settlement for approval, and the United States Associate Attorney General (“AAG”) follows that recommendation. 

Should the settlement ultimately be approved by the AAG, and we believe that it will, half of your settlement amount will be considered backpay from which taxes will be withheld, while the other half will be considered liquidated damages.  While no taxes will be withheld from the liquidated damages portion of the settlement, this amount is also considered taxable income. 

Should the settlement become final, your settlement award will be reduced by our contingency attorney fee of approximately 25% of your gross settlement amount. We are in the process of negotiating the amount of statutory attorneys’ fees that we are entitled to recover from the Government pursuant to the fee shifting provisions of the FLSA.  The statutory fees that we recover from the United States as part of a final settlement will be used to reduce your contingency fee, so you will ultimately pay something slightly less than the 25% contingency fee you agreed to pay us when you retained us.

The Government is currently reviewing each plaintiffs’ proposed settlement amount to determine if, with the payment of the settlement, it causes any plaintiff to exceed the overtime pay cap.  If any plaintiff has that issue, we will reach out directly to that plaintiff.

SETTLEMENT FRAMEWORK

The settlement damages will be computed by multiplying the negotiated per pay period settlement amount of $117.83 by the total number of pay periods that the 5,727 border patrol agent plaintiffs worked during the recovery period as non-supervisory border patrol agents. 

Based on our review and analysis of the pay data provided to us by the Government for each plaintiff, there are a total of 330,779 pay periods in this lawsuit.

To review your points, please click on the Heatmap set forth below.  Each plaintiff is listed on the Heatmap with that plaintiff’s included and excluded pay periods during each plaintiff’s recovery period.  Because of the size of the files, the Heatmap is divided into three parts but each plaintiff is listed alphabetically.

The column on the Heatmap entitled “3yr Elig Date” is the date that is three years prior to the date that each plaintiff’s claim was filed in court.  Importantly, this date is the beginning of each plaintiff’s  recovery period.  This is because the FLSA has a three-year statute of limitations that looks backward three years from the date that a plaintiff’s consent form is filed in Court.  So, even if you worked as a non-supervisory border patrol agent prior to your “3 Yr Elig Date,” that time is excluded from your recovery period because it is outside of the statute of limitations.  Similarly, if you did not become a non-supervisory border patrol agent until after your “3 Yr Elig Date,” that time is excluded because this case and settlement apply only to non-supervisory border patrol agents.  This pre-claim period will be denoted by a black bar on the Heatmap.

In addition, as in Abad v. U.S., the following pay periods are excluded from the pay period point calculation, and are denoted on the Heatmap as follows:

  • CANINE CASE: Pay periods for which a plaintiff already recovered damages in one of the canine lawsuits handled by our law firm;

 

  • 0 WORK DAYS: Pay periods in which a plaintiff was on paid or unpaid leave, or otherwise in a non-work status for an entire pay period due to, for example, discipline, workers’ comp, or military leave (in other words, any pay period in which a plaintiff did not work at least one full day is excluded from the recovery);

 

  • SUPV BPA: Pay periods in which a plaintiff was a supervisor; and

 

  • NOT BPA: Pay periods in which a plaintiff occupied a position other than a non-supervisory border patrol agent position.

 

The end of the recovery period for all plaintiffs is January 10, 2016 (PP26 of 2015) which is the date that the border patrol agents were reclassified FLSA nonexempt to exempt from the FLSA.  Of course, if a plaintiff left a non-supervisory border patrol agent position prior to January 10, 2016, his/her termination date will be the last date of his/her recovery period.

Applying these parameters, the number listed in the far-right column on the Heatmap is your total number of pay periods in the recovery.  To compute your gross settlement amount, simply multiple the number in the far-right column (“Total Include All PP”) by $117.83. Again, fees and taxes will be deducted from this gross amount.

If you believe that you have been given too many or too few pay periods, please contact us immediately, in writing by email at settlement@mselaborlaw.com on or before March 31, 2021. If you believe that you have been given too few points, you must provide us with documentation to substantiate that the Government’s information regarding when you worked as a non-supervisory border patrol agent during your recovery period is incorrect. If we do not hear from you on or before March 31, 2021, then your pay period count and the associated dollar value of that pay period count will be considered final.  There is no need to contact us if you agree to the number of points you have been credited.

NEXT STEPS

Once any valid pay period disputes are resolved, and once we have agreed with the United States on the amount of statutory attorneys’ fees owed, we will make a formal settlement offer to the Government and draft a settlement agreement that will be based on the Abad v. U.S. Settlement Agreement.  Under the terms of that Agreement, you will agree to dismiss your claims and you will agree that you are not in, and will not file, any other lawsuits asserting the same claims for the same time periods at issue in this lawsuit.  In return, the Government will pay you the above described damages.

Due to the amount of money involved in this lawsuit, any tentative settlement reached must be approved by the AAG of the United States. We are unsure of how long this will take, but since this case involves the exact same claims as the Abad case, we are hopeful that the settlement will move through the approval process more quickly than the Abad settlement did.  Once the settlement is signed in this case, it will take several more months for the United States Department of Treasury Judgment Fund to make the payments to all plaintiffs. In Abad, it took the Government three months from signing the settlement agreement to pay all 6,108 plaintiffs. We will continue to update the website with developments and will provide you with your settlement money once we receive it. We are optimistic that payment will be made in 2021.

Local 2554, PO Box 2976, El Centro, CA 92243, Open 24/7