ICE employees granted back pay for undocumented overtime

Hundreds of Immigration and Customs Enforcement employees last week won additional back compensation owed them for undocumented overtime hours.

An arbitrator ruled on Jan. 3 that the employees were unfairly deprived of overtime pay for hours beyond the 40-hour work week mandated under the Fair Labor Standards Act.

The American Federation of Government Employees, one of the largest federal employee labor unions, initially brought the grievance in 1994. Last June, the agency agreed to give $20 million to about 8,000 employees for overtime owed them for 1991 through 1998. That payout came after a ruling that the legacy Immigration and Naturalization Service - where the employees worked then -- improperly classified them as exempt from the FLSA.

This new decision will add to that sum, by an as-yet-unspecified amount, for overtime that was undocumented, such as travel to a training session.

AFGE assistant general counsel Joe Goldberg said he estimates that these undocumented hours, legally labeled "suffer or permit" overtime, will be tallied in the thousands. The agency will need to calculate the exact amount.

Some offices were "so overwhelmed with cases that whole offices would come in and work the weekends and the supervisors would get pizza," Goldberg said. "That time never appeared on a time sheet …The employer can't just wink their eye and say 'We know you're working. Thanks a lot.' "

In addition to these weekend hours, Goldberg said weekend travel to training sessions that started early on Monday morning was a commonly uncompensated, undocumented case of overtime.

Employees who are owed back pay will be paid on a case-by-case basis, according to how many hours they worked without compensation. With the June settlement, payout ranged from a few cents to tens of thousands of dollars, Goldberg said.

The case initially was filed against the Immigration and Naturalization Service, which was disbanded with some employees moving to ICE when the Homeland Security Department was created.