Appeals Court: ICE Did Not Have to Bargain Over Pay Changes

A federal appeals court last week ruled that Immigrations and Customs Enforcement officials acted properly when they made changes to limit overtime pay for employees.

The National Immigration and Customs Enforcement Council had filed a lawsuit challenging the decision before the U.S. Court of Appeals for the D.C. Circuit because ICE officials failed to negotiate with the union ahead of time. An arbitrator initially sided with the union, but the Federal Labor Relations Authority overturned that decision.

In 2015, ICE changed how it calculates administratively uncontrollable overtime, a form of premium pay that some agencies use for employees who work a substantial amount of unscheduled overtime, to include employees’ use of paid leave. Before the change, officials deducted hours taken for annual and paid leave from the total hours worked, making it easier for employees to qualify for premium pay. But that policy was in violation of 1997 guidance from the Office of Personnel Management stipulating that agencies should not exclude leave hours when calculating uncontrollable overtime.

In a unanimous decision, the court sided with the FLRA and the Homeland Security Department, finding that ICE’s actions were in an effort to comply with a governmentwide rule, and therefore officials had no duty to negotiate with the union prior to implementation.

“Whether we should set aside the authority’s decision turns entirely on whether it correctly determined that ICE’s previous policy conflicted with the OPM’s regulations as interpreted in the 1997 guidance,” wrote U.S. Circuit Judge Karen LeCraft Henderson. “On its face, the OPM’s 1997 guidance expressly prohibits ICE’s previous policy of excluding leave time from its [administratively uncontrollable overtime] calculations.”

The union had argued that the guidance only prohibits excluding “hours” of leave from its overtime calculations, and leaves it up to the agency’s discretion whether to exclude “days” of leave. But the court described that rationale as drawing “too much from too little.”

“Both ‘hours’ and ‘days' refer to units of time that can be used interchangeably, in this case with eight hours equaling one day,” Henderson wrote. “Indeed, the relevant portion of the 1997 Guidance assumes that the units of time are interchangeable by speaking of subtracting ‘hours’ and ‘days’ from a third unit of time, ‘weeks.’”

The National ICE Council also argued before the court that the OPM guidance improperly implemented the underlying premium pay law, but the court stated that it could not consider the line of reasoning because it was not included in the union’s legal briefs.