Settlement paves way for retroactive language skills bonuses at CBP

Customs and Border Protection employees proficient in foreign languages could receive back pay thanks to a recent agreement between the National Treasury Employees Union and the agency.

Under the terms of the settlement agreement finalized Nov. 28, certain CBP officers can take a foreign language competence test. If shown to be adequate, they will receive retroactive bonuses ranging from 3 to 5 percent of their base salaries the year they should have received the bonus.

The Foreign Language Award Program, established by the 1993 Customs Officer Pay Reform Act, allows employees who speak and use foreign language skills on the job to receive a one-time cash award if they use the language for at least 10 percent of their duties and have passed a competence test.

But according to NTEU, which represents about 14,000 CBP employees from the former Customs Service, the agency stopped testing employees for language proficiencies in 2003. This prevented employees from being part of the program and prompted the union to file a national grievance on Oct. 7, 2004.

The settlement comes as the grievance was headed to arbitration.

Under the agreement, the 444 CBP officers hired before July 25, 2004, and previously classified as customs inspectors (GS-1890) and customs canine enforcement officers (GS-1801) who applied for foreign language testing in fiscal 2004 but were not tested, and the 391 officers who applied for testing in fiscal 2005, will be scheduled for priority testing in fiscal 2006.

Employees found to have been denied testing opportunities could be given retroactive payments if they attain a score indicating adequate proficiency, according to the settlement agreement.

"It seems counterproductive for the Department of Homeland Security to not acknowledge and reward their diligence," said NTEU President Colleen Kelley. "For an administration that is pushing the idea of pay for performance, it amazed me that the leadership of DHS made a conscious decision not to reward these employees who possess a much needed skill and are performing above and beyond their job descriptions."

According to NTEU, this marks CBP's only agreement to re-implement the foreign language award program.

Charles Showalter, president of the American Federation of Government Employees' National Homeland Security Council 117, said CBP has not dealt in good faith with his union, which represents 6,500 CBP legacy Immigration and Naturalization Service employees, including border patrol guards, inspectors and lawyers.

"They don't have enough testers," Showalter said. "That's their excuse. We expect the agency to continue to resist paying officers who use foreign languages on a daily basis."

Showalter said that the agency is requiring officers to use foreign languages regularly whether or not they are being paid for it. Employees are subject to disciplinary actions if they fail to comply.

"Now that we're under one system, you'd think that DHS would do things in an appropriate manner," Showalter said. "We are pursuing this, and we do expect to get back pay for all CBP officers."

A CBP spokeswoman said the agency recognizes the value of foreign language proficiency, and it remains dedicated to furthering participation in the program.

"CBP recognizes that there was a lapse in the testing process for eligible officers under the foreign language awards program," the spokeswoman said. "That lapse was not the result of a CBP decision to discontinue testing, but was due to delays in extending the Interagency Agreement to provide testing services."

The agency paid awards under the provisions in the program to 1,570 eligible officers in fiscal 2004 and recently concluded the payment processing for eligible officers in fiscal 2005, the spokeswoman added. Testing to determine proficiency levels resumed in July and has proceeded at an accelerated pace, she said.

CBP is looking to secure additional testing services to expedite officer testing.