Border Blues
Border Patrol employees who oversee agents within an organizational unit, even if only for a limited time, are considered supervisors and therefore do not qualify for overtime pay under the Fair Labor Standards Act, the U.S. Court of Appeals for the Federal Circuit recently ruled.
About 400 former and present Border Patrol workers filed a lawsuit with the Court of Federal Claims alleging the government wrongly and willfully failed to pay them overtime wages. The federal claims court ruled that some workers were entitled to overtime pay, but those who served in supervisory positions at any time were disqualified from getting overtime. The workers appealed the decision, but the U.S. Court of Appeals upheld the lower court's ruling on Nov. 25.
The court ruled that any Border Patrol employee who oversees any "organizational unit" is a supervisor, even if that unit consists of just three agents.
During the court proceedings, the government argued that workers served in supervisory roles if, at any time, they supervised more than three people; directed the work to be accomplished; held subordinates accountable for work being performed; and evaluated an agent's work.
The court agreed that a Border Patrol "shift" was a recognized organizational unit, and found that Border Patrol field operations supervisors who supervised these shifts do not qualify for overtime under Office of Personnel and Management regulations.
The workers argued that field operational supervisors should be viewed as leaders of "temporary groups to perform a special assignment of limited duration," but not supervisors of a recognized organizational unit.
The court did not agree, stating: "Nothing in the OPM executive-exemption regulation expressly required that a manager or supervisor perform precisely the same tasks, and oversee precisely the same people in the unit, every day, to qualify under the executive exemption."
Adams, et al. v. U.S., U.S. Court of Appeals for the Federal Circuit (02-5076), Nov. 25, 2003
Waiting On Anti-Discrimination Regulations
A lack of regulations implementing an anti-discrimination law that went into effect two months ago has given some federal managers too much comfort, the author of the new rules says.
The law forces federal agencies losing or settling discrimination and whistleblower cases to pay judgments out of their own budgets, rather than a general government fund. But to date, there are no guidelines on how this will work in practice. It is unclear, for example, whether agencies will need to pay judgments on lawsuits filed prior to Oct. 1, but closed after that date.
Without guidelines, agency managers may get the impression that the executive branch is not serious about enforcing the law, according to Marsha Coleman-Adebayo, who worked with Congress to secure its passage.
White House officials placed the Office of Personnel Management and the Justice and Treasury departments in charge of issuing guidelines on this aspect of the law, called the Notification and Federal Employee Anti-Discrimination and Retaliation (No FEAR) Act. OPM officials originally pledged to complete the rules by the time No FEAR took effect.
But by late October, the rules had not appeared in the Federal Register. An OPM spokesman then said that they would be published by early November, after officials sorted out minor housekeeping details. The latest estimates from OPM suggest that the rules may come out sometime in December. They are completed and are receiving a final review from the Office of Management and Budget, a spokesman said.
At this point, OPM may as well wait until January to release the guidelines, Coleman-Adebayo said. "The timing would be very suspicious now," she explained, noting that federal managers would not have as much time to pay attention to the new rules if they are released during the holiday season.
Initially, Coleman-Adebayo worried that OPM might rush to publish the guidelines without seeking enough outside input. So in a way, the delay is exactly what she wanted, though OPM has not necessarily used the extra time in the way she would have liked.
In related news, the federal agency charged with enforcing anti-discrimination laws is operating under the guidance of a full set of commissioners for the first time in seven years. Stuart Ishimaru, who worked for seven years in the Civil Rights Division of the Justice Department, first as counsel to the assistant attorney general and then as deputy assistant attorney general, joined the Equal Employment Opportunity Commission on Nov. 18.
The Commission, charged with enforcing Title 7 of the 1964 Civil Rights Act, has room for five commissioners, but only had four before instating Ishimaru. President Bush nominated him in early October to fill the empty spot, and the Senate confirmed him on Oct. 31. Ishimaru will remain on the commission until 2007.
Before working at Justice, Ishimaru served as acting staff director for the U.S. Commission on Civil Rights. He has also held positions on the staff of the House Judiciary Subcommittee on Civil and Constitutional Rights. "In his varied and distinguished career, Ishimaru has demonstrated a lifelong commitment to equal opportunity and civil rights," said EEOC Chair Cari Dominguez in a statement.
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