President Trump speaks during an August event to honor ICE and CBP agents.

President Trump speaks during an August event to honor ICE and CBP agents. Alex Brandon / AP

The Administration Is Fighting to Restrict Pay Even for Trump's Favorite Feds: ICE Agents

The administration is fighting ICE employees despite president's promise to "always have your back."

A federal employee union that threw its support behind Donald Trump prior to the 2016 election is in the midst of suing the president’s administration, which is fighting to maintain a policy that limited overtime pay for the group’s members.

The National Immigration and Customs Enforcement Council’s lawsuit pending before the U.S. Court of Appeals for the D.C. Circuit challenges ICE’s decision to change the agency’s overtime policy for its law enforcement personnel without first negotiating with the union. The council initially won its case with an arbitrator before the Federal Labor Relations Authority overturned that decision.

The lawsuit, which impacts virtually all of ICE’s 5,000 agents, is an awkward point of tension between the ICE employees and the Trump administration. The president has repeatedly heaped praise and admiration on ICE’s workforce. In July, Vice President Mike Pence took a trip to the agency to reiterate the administration’s support for the agency and its employees at an event titled a "Salute to the Heroes of ICE." Trump followed that by hosting ICE employees at the White House to further celebrate their work.

“We’re here today to salute the incredibly brave patriots who keep America safe: the heroes of ICE and CBC [sic],” Trump said. “To everyone here today from Immigration and Customs Enforcement, and Customs and Border Protection, I want to you let you know that we love you, we support you, we will always have your back, and I think you know that.”

Despite that promise, the Homeland Security Department intervened in the union’s lawsuit. At issue are the calculations behind administratively uncontrollable overtime, a type of premium pay many law enforcement agencies use for employees who work a substantial amount of “irregular, unscheduled overtime.”

ICE calculates whether employees are eligible for the extra pay by determining the average number of hours they worked that consisted of overtime. Until 2013, the agency deducted hours employees took as annual and paid leave from the total hours worked, making it easier for employees to qualify for premium pay and to earn higher rates. After various investigations into the use of administratively uncontrollable overtime, DHS determined ICE’s policy to discount leave hours did not comply with governmentwide regulations set by the Office of Personnel Management. DHS instructed ICE to immediately end the practice and ICE subsequently sent an email to employees alerting them to the change.

ICE did not notify its union until after it changed the policy and offered only post-implementation bargaining. The council filed a grievance and the two sides went to arbitration, where ICE argued it was fixing an unlawful policy to comply with governmentwide regulations and therefore did not have to bargain over the change. The arbitrator ruled that ICE violated its collective bargaining agreement and ordered the agency to issue back pay and reinstate the old administratively uncontrollable overtime determination rules.

Upon appeal, a majority of FLRA members voted to overturn the arbitrator’s decision, arguing the OPM regulations were clear and applicable. A dissenter on the panel said ICE’s failure to bargain created chaos and the agency had to at least negotiate over the “impact and implementation” of the change, if not the change itself, to ensure a de minimis impact on employees. The dissenter, Ernest DuBester, said the majority opinion would set the precedent that agencies only have to bargain after implementation of new policies in similar cases.

The lawsuit is not the first time the National ICE Council has soured on the Trump administration. Chris Crane, the union’s president who declined to comment for this story, said in July the administration was “playing by the same failed playbook” on immigration policy and had failed to innovate. He complained that Trump had named career Border Patrol agent Ron Vitiello as ICE director without consulting his union. A month later, the council filed its lawsuit.

After initially being scheduled to file its brief with the court on Nov. 5, the day before the midterm elections, the council asked for an extension and will now make the filling in December. ICE is expected to submit its rebuttal in January.

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.