Department of Homeland Security: Continued Action Needed to Strengthen Management of Administratively Uncontrollable Overtime
Published: 2014-12-17T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: DHS had approximately 29,000 employees earning AUO, a type of premium pay intended to compensate eligible employees for substantial amounts of irregular, unscheduled overtime. DHS components' use of AUO has been a long-standing issue since at least 2007, when reviews identified the inappropriate use of AUO in DHS. GAO was asked to review DHS components' use and implementation of AUO.
This report addresses, among other things, how much DHS spent on AUO from fiscal year 2008 through March 2014 (the most current data available) and the extent to which DHS components implemented AUO appropriately. GAO analyzed AUO payments data from components that have regularly used AUO, which included U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, U.S. Secret Service, National Protection and Programs Directorate, U.S. Citizenship and Immigration Services, and Office of the Chief Security Officer. When calculating annual averages, GAO used the last full fiscal year of available data (2013). GAO also analyzed component AUO policies and procedures to assess compliance with federal regulations and guidance.
section_title: What GAO Found
paragraphs: Department of Homeland Security (DHS) components spent $512 million on administratively uncontrollable overtime (AUO) payments in fiscal year 2013 and $255 million through March 2014, mostly on Border Patrol agents. DHS's AUO expenditures increased from fiscal years 2008 through 2013, in part because of higher payments per earner. The average annual AUO payment per employee increased by about 31 percent, or from about $13,000 to about $17,000 from fiscal years 2008 through 2013, as shown in the figure below.
Some DHS component policies are not consistent with certain provisions of federal regulations or guidance, and components have not regularly followed their respective AUO policies and procedures, contributing to widespread AUO administration and oversight deficiencies. For example, components have not consistently reviewed hours claimed and employee eligibility for AUO. In response, in 2014, DHS issued two memorandums. One required the suspension of AUO for certain employees. The other required components to submit plans to address deficiencies, which most DHS components have done. DHS also plans to issue a department-wide AUO directive and to monitor component implementation of corrective actions through its ongoing human resource office assessments every 3 to 4 years, among other things. However, this monitoring is too general and infrequent to effectively monitor or evaluate DHS components' progress. Given the department's long-standing and widespread AUO administration and oversight deficiencies, developing and executing a department-wide oversight mechanism to ensure components implement AUO appropriately on a sustained basis, and in accordance with law and regulation, could better position DHS to monitor components' progress remediating AUO deficiencies. Further, DHS's reporting annually to Congress on the extent to which DHS components have made progress in remediating AUO implementation deficiencies could provide Congress with reasonable assurance that DHS components have sustained effective and appropriate use of AUO in accordance with law and regulation.
section_title: What GAO Recommends
paragraphs: GAO recommends that DHS develop and execute a department-wide mechanism to ensure components implement AUO appropriately. Congress should consider requiring DHS to report annually on components' progress remediating AUO implementation deficiencies. DHS concurred with the recommendation.

section_title: Letter
paragraphs: The Department of Homeland Security (DHS) and its components had  approximately 29,000 employees receiving a type of overtime pay known  as administratively uncontrollable overtime (AUO), as of March 2014.  DHS components’ use of AUO has been a long-standing issue since at  least 2007, when allegations surfaced and investigations began regarding  the inappropriate use of AUO in the department. For example, the Office  of Special Counsel (OSC) has referred, over the past 7 years, numerous  whistle-blower allegations of AUO misuse to DHS components and the   The resulting  DHS Office of Inspector General (OIG) for investigation.investigations generally substantiated the allegations of AUO misuse,  finding, for example, that employees across multiple DHS components— including U.S. Customs and Border Protection (CBP), the component with  the largest number of employees earning AUO—improperly claimed and  received AUO pay for performing duties that did not qualify for AUO.  These investigations also found that supervisors knowingly authorized  employees to claim hours for work that was ineligible for compensation as  AUO, among other findings of inappropriate use of AUO. In reaction to  these findings and to findings of other reviews, DHS components began  suspending use of AUO in November 2013 and deauthorizing AUO for  certain employees and positions in January 2014.
AUO is a type of premium pay intended to compensate eligible federal  employees for substantial amounts of irregular, unscheduled overtime  that cannot be controlled administratively. Consistent with law and in  accordance with federal regulations and guidance issued by the Office of  Personnel Management (OPM), an agency may pay AUO to an employee  in a position in which the duty hours cannot be controlled administratively  and the employee is generally responsible for recognizing circumstances   In general, AUO is paid as  that require the employee to remain on duty. a percentage of an employee’s base pay, ranging from 10 to 25 percent,  after considering previous AUO worked and the expectation of such hours  to be worked in the future. For example, a 25 percent AUO pay rate is  authorized for an employee in a position that requires an average of over  9 hours per week of irregular or occasional overtime.
See 5 U.S.C. § 5545(c); 5 C.F.R. §§ 550.151-550.154; OPM, Memorandum for Directors  of Personnel (CPM 97-5: Guidance on AUO Pay (June 13, 1997)). shadowing suspects, working incognito among those under suspicion,  searching for evidence, meeting informers, making arrests, and  interviewing persons having knowledge of criminal or alleged criminal  activities. In such circumstances, the hours of duty cannot be controlled  through administrative means such as hiring additional personnel,  rescheduling hours of duty, and granting compensatory time-off duty to  offset overtime hours required.
You asked us to review DHS’s use of AUO, including how much DHS has  spent on AUO annually and whether DHS components have appropriately  used AUO as compensation for overtime. This report examines (1) how  much DHS components have spent on AUO from fiscal year 2008  through March 2014, (2) the extent to which DHS components have  implemented AUO appropriately, and (3) how recent AUO suspensions  and deauthorizations at selected DHS components have affected their  use of overtime.
To address these questions, we assessed DHS’s use of AUO for those  components that compensated employees with AUO from fiscal year  2008 to March 22, 2014—the most currently available data for fiscal year  2014 at the time of our data request. However, when calculating annual  averages, we used the last full year of available data—fiscal year 2013.  Specifically, these components are CBP, U.S. Immigration and Customs  Enforcement (ICE), National Protection and Programs Directorate  (NPPD), U.S. Citizenship and Immigration Services (USCIS), U.S. Secret Service (USSS), and DHS’s Office of the Chief Security Officer (OCSO).We selected fiscal year 2008 as the starting point for our analysis  because OSC first reported allegations of AUO abuse at DHS in 2007.
To determine how much each DHS component spent on AUO from fiscal  year 2008 (October 2007) through March 2014, we collected DHS  component AUO payments data for this time period. These data included  AUO payments made by DHS components to employees by pay period,  as well as occupational characteristics, such as pay grade, position title,  location, and program office. We analyzed the AUO payments data to  determine total AUO paid and characteristics of AUO recipients.
To determine the extent to which DHS components implemented AUO  appropriately, we reviewed DHS components’ AUO policies and  procedures and compared them with relevant federal regulations and  guidance on AUO pay. We also examined relevant DHS OIG and OSC- referred component investigations and reviews on the use of AUO within  DHS. These reports were results of investigations or reviews that were  based on referrals or otherwise begun from May 2007 through January  2014. We also met with officials from DHS components that compensated  employees with AUO, as well as with OPM, to obtain their perspectives  on DHS components’ AUO policies and procedures as well as on federal  regulations and guidance. To determine actions DHS and its components  have taken to strengthen AUO policies and procedures and to improve  implementation of these policies and procedures since 2007, we reviewed  DHS’s January 23, 2014, and May 23, 2014, memorandums on AUO  administration.
To determine how recent AUO suspensions and deauthorizations at  selected DHS components have affected their use of overtime as a  means of compensation, we analyzed information from USCIS and  OCSO, the DHS components that suspended AUO for all of their  employees earning AUO in November 2013. We analyzed overtime data  for those employees who had received AUO pay at USCIS and OCSO.  Specifically, we compared overtime hours worked and overtime paid for  these employees 13 pay periods prior to and after the AUO suspension.  In addition, we interviewed officials from USCIS and OSCO to obtain their  perspectives on the effect that the AUO suspension had on their ability to  fulfill mission-critical tasks. We also analyzed information from the DHS  components that deauthorized AUO for certain employees or positions— specifically, CBP, ICE, and NPPD. These components deauthorized  employees from AUO in response to a January 27, 2014, memorandum  from the Secretary of DHS ordering that AUO be suspended for specified  categories of individuals.
We assessed the reliability of the payments data for determining how  much components spent on AUO and how AUO suspensions and  deauthorizations have affected overtime payments by interviewing  knowledgeable component officials about the completeness and reliability  of the data and controls in place for the data, among other things. We  also tested the data we received in various ways, such as looking for  missing data, duplicate payment entries, negative payments, out-of-range  entries, and other entries that appeared to be unusual. We determined  that the payments data were sufficiently reliable for the purposes of  determining AUO pay amounts and occupational characteristics of AUO  recipients. Additional details on our scope and methodology are  contained in appendix I.
We conducted this performance audit from January 2014 to December  2014 in accordance with generally accepted government auditing  standards. Those standards require that we plan and perform the audit to  obtain sufficient, appropriate evidence to provide a reasonable basis for  our findings and conclusions based on our audit objectives. We believe  that the evidence obtained provides a reasonable basis for our findings  and conclusions based on our audit objectives.
subsections: section_title: Background
subsections: section_title: DHS Components with AUO-Earning Employees
paragraphs: DHS has several components with employees who earned AUO as  overtime compensation. Table 1 describes the various components with  employees earning AUO at the start of fiscal year 2014.
section_title: AUO Eligibility and Compensation
paragraphs: Employees who work hours in addition to their regularly scheduled  workweek may be entitled to compensation for the work performed, in  accordance with applicable statutory and regulatory requirements. AUO  is intended to compensate eligible federal employees in positions that  require substantial amounts of irregular, unscheduled overtime that  cannot be controlled through administrative means—such as by hiring  additional personnel, rescheduling the hours of duty, or granting  compensatory time-off duty to offset overtime hours required.AUO, the employee must be in such a position that requires the employee   To earn  to be generally responsible for recognizing, without supervision,  circumstances that require him or her to remain on duty.
The regulations include additional language addressing the  circumstances under which an employee may be deemed eligible to earn  AUO. Among other factors, circumstances must require that the  employee remain on duty not merely because it is desirable, but for  compelling reasons inherently related to continuance of his or her duties  such that failure to carry on would constitute negligence. include, for example, such circumstances as when an employee must  continue working because shift relief fails to report as scheduled. In  addition, circumstances under which an employee may earn AUO must  be in continuation of the full scheduled workday or the resumption of a full  workday in accordance with a prearranged plan or an awaited event, and  require that the employee have no choice as to when or where he or she  may perform the work. For example, when an employee has an option  to take work home, may complete it at the office, or has latitude in  working hours to begin work later in the morning in order to work later in  the evening, such additional hours should not be compensated using  AUO. § 550.153(c) (providing also that responsibility for an employee remaining on duty when  required by circumstances must be a definite, official, and special requirement of his or  her position). irregular or occasional overtime work will continue with a duration and  frequency to meet the minimum requirements for eligibility.
Agencies are to determine the appropriate AUO pay rate as a percentage  of an employee’s annual rate of locality-adjusted base pay, and it is paid  as part of the employee’s annual salary rather than on an hourly basis as  with other types of overtime compensation. in an AUO-eligible position worked 8 hours of irregular or occasional  overtime per week on average, that employee is to receive AUO premium  pay at a rate of 20 percent of his or her base pay, in addition to his or her  regular pay. If an employee in this scenario has a base rate of pay of  $50,000 per year, his or her AUO pay would equal an additional $10,000  per year or about an additional $385 per pay period. Table 2 shows the  appropriate rates of pay established in regulation and the corresponding  requisite number of eligible overtime hours worked.
See generally 5 U.S.C. § 5542 (FEPA) and 29 U.S.C. § 207 (FLSA). Overtime under  FEPA may also be referred to as Title 5 or 45 Act overtime. Certain employees, such as  persons employed as bona fide executive, administrative, professional, and outside sales  employees, are considered FLSA exempt and are not subject to the overtime  compensation and other provisions of the FLSA. See 29 U.S.C. § 213.
2 hours or more of unscheduled duty per regular workday. As a result,  LEAP superseded AUO for criminal investigators or other approved law  enforcement officers as the appropriate means for earning premium  pay—that is, employees earning LEAP are not eligible to earn AUO.
section_title: Past Reviews of DHS Components’ Use of AUO
paragraphs: Various entities have reviewed the use of AUO by DHS components,  including reviews of current DHS components that existed prior to the  formation of DHS in 2003. For example, pursuant to a provision of the  Omnibus Consolidated Appropriations Act, 1997, the inspectors general  of each federal department or agency that used AUO were required to  conduct audits and report their findings on the use of AUO. The reviews  conducted in satisfaction of this requirement encompassed legacy  entities, such as the U.S. Border Patrol, that are now part of DHS. The  Department of Justice (DOJ) OIG reported in 1997 that 6,900 mostly  Border Patrol employees within the former Immigration and Naturalization  Service (INS) received AUO in fiscal year 1996. The OIG also reported  that its review of the records for a sample of 202 employees did not  substantiate that the overtime worked was uncontrollable for 95 percent   More recently, the DHS OIG and DHS components’  of the sample.offices of internal affairs, in response to allegations referred by OSC,  have conducted reviews and investigations of AUO at DHS.2 for a timeline of selected AUO reviews and investigations related to  AUO use at DHS.
section_title: DHS Components Averaged $434 Million Annually in AUO Payments from Fiscal Years 2008 through 2013, Mostly for Border Patrol Agents
paragraphs: DHS components paid an average of $434 million in AUO per year from  fiscal years 2008 through 2013—the last full year of available data.Across DHS, annual AUO expenditures increased from $307 million in  fiscal year 2008 to $512 million in fiscal year 2013, or an increase of  approximately $205 million. According to our analysis, this increase in  expenditures occurred because of an approximately 22 percent increase  in AUO earners from fiscal years 2008 through 2010 and an increase in  AUO payments per employee because of average increases in salary.  Since fiscal year 2011, the number of employees earning AUO increased  by less than 2 percent, while AUO expenditures increased by about 8  percent. The majority of these AUO-earning employees are  nonsupervisory Border Patrol agents within CBP, and are employed along  the southwest border of the United States.
subsections: section_title: AUO Expenditures within DHS Have Increased since Fiscal Year 2008 because of Higher Payments per Earner and Greater Overall Numbers of Earners
paragraphs: DHS components spent increasing amounts on AUO each year from  fiscal year 2008 through fiscal year 2013. Specifically, AUO payments  increased on average 11 percent each year, from approximately $307  million in fiscal year 2008 to approximately $512 million in fiscal year  2013—the last full fiscal year of AUO payments data—as shown in figure  3. In the first half of fiscal year 2014, AUO payments totaled $255 million,  and are on pace to equal fiscal year 2013 payments.
According to our analysis, in fiscal years 2008 through 2010, an increase  in the number of AUO earners drove the increase of AUO payments more  than the spending per employee. The number of AUO-earning employees  within DHS rose from approximately 23,000 in fiscal year 2008 to  approximately 28,000 in 2010, an increase of about 22 percent. From  fiscal years 2011 through 2013, the number of AUO-earning employees  within DHS rose at a slower pace, increasing less than 2 percent during  this time period. As of March 2014, the number of AUO-earning  employees within DHS was near the fiscal year 2013 total of about  29,000.
Our analysis indicates that since 2011, the rate of increase in the amount  of AUO paid per individual outpaced the rate of growth of the total number  of AUO earners, and contributed to an overall increase in AUO  expenditures of 8 percent. Overall, from fiscal year 2008 through fiscal  year 2013, the average annual AUO payment per employee increased by  about 31 percent, or from about $13,000 in fiscal year 2008 to about  $17,000 in fiscal year 2013, as shown in figure 4. CBP officials stated that  this increase in the amount of AUO paid per individual was a result of an  increase in average annual salary, since AUO is paid as a percentage of  an employee’s base salary, and not necessarily because of increases in  the AUO rates of pay authorized.
CBP accounts for the majority of AUO expenditures within DHS,  accounting for nearly 77 percent ($394 million of $512 million) of all AUO  paid by DHS in fiscal year 2013. This is because CBP also has  approximately 77 percent of the AUO-earning employees within DHS— primarily Border Patrol agents, who numbered approximately 21,500 in  fiscal year 2013. CBP spent on average $327 million annually on AUO  from fiscal years 2008 through 2013. CBP accounted for most of the  department’s increase in AUO expenditures as well—with its AUO  expenditures growing 75 percent from fiscal years 2008 through 2013.  According to CBP officials, a CBP hiring initiative from 2005 through  2010, and the new hires’ subsequent career ladder progression to higher- compensated grades, drove the increased AUO expenditures, along with  an increase of one grade for all Border Patrol agents compensated at  General Schedule (GS)-11 and GS-12 levels in 2010.
ICE accounted for the next largest percentage of AUO expenditures and  AUO earners, constituting 21 percent ($105 million of $512 million) of all  AUO expenditures in DHS in fiscal year 2013 and approximately 21  percent of AUO-earning employees within DHS that year. ICE increased  its expenditures by a total of about 40 percent from fiscal years 2008  through 2013, spending approximately $96 million on AUO on average  each year during this time period. USSS accounted for about 1 percent of  AUO expenditures within DHS in fiscal year 2013 as well, and spent an  average of $6.8 million in AUO each year from fiscal years 2008 through  2013. USSS AUO expenditures increased by about 6 percent from fiscal  years 2008 through 2013. NPPD accounted for about 1 percent of AUO  expenditures in fiscal year 2013, and its AUO expenditures increased by  about 27 percent from fiscal years 2008 through 2013. NPPD spent an  annual average of about $4.8 million during this time frame.
USCIS and OCSO each accounted for less than 1 percent of total AUO  expenditures within DHS in fiscal year 2013. Each spent on average less  than $1 million on AUO each year from fiscal years 2008 through 2013.  See table 3 for additional information on DHS expenditures on AUO since  fiscal year 2008.
section_title: The Majority of AUO Earners within DHS Work in Nonsupervisory Positions along the Southwest Border
paragraphs: Most AUO earners within DHS are CBP and ICE employees with  responsibilities that involve the interdiction or removal of illegal entrants or  deportable aliens. Given that these activities are more prevalent along the  southwest border of the United States than elsewhere, most of the  employees earning AUO are located at duty stations in this region. In  fiscal year 2013, most AUO earners were located in Texas, followed by  Arizona, California, and New Mexico. In total, at least 20,627, or 70  percent, of the approximately 29,500 AUO earners in DHS worked in  these states in fiscal year 2013.93 percent of all AUO earners across DHS in fiscal year 2013:   Four position titles accounted for about
Border Patrol agent: Duties for this position include preventing the  entry of terrorists, and the smuggling and unlawful entry of  undocumented aliens, among other things. In fiscal year 2013, about  94 percent of AUO earners within CBP were Border Patrol agents.
Immigration enforcement agent: Duties for this position include  investigation, identification, and arrest of aliens in the interior of the  United States, among other things. In fiscal year 2013, about 48  percent of AUO earners within ICE were immigration enforcement  agents.
Deportation officer: Duties for this position primarily include  conducting legal research to support decisions on deportation cases,  and assisting attorneys in representing the government in court. In  fiscal year 2013, about 33 percent of AUO earners within ICE were  deportation officers.
Detention and deportation officer: Duties for this position primarily  include directing, coordinating, and executing detention and removal  activities. In fiscal year 2013, about 17 percent of AUO earners within  ICE were detention and deportation officers. See figure 5 for DHS  AUO earners by position title in fiscal year 2013.
Outside of these four primary AUO-earning positions, we identified 169  other unique position titles under which employees within DHS have  received AUO pay from fiscal years 2008 through 2013.
At CBP, other AUO-earning positions included information technology  specialists, paralegal specialists, management and program analysts,  account managers, congressional liaison officers, human resources  assistants, and attorney-advisors.
At ICE, other AUO-earning positions included technical enforcement  officers, criminal investigators, intelligence officers, and cooks.
At USSS, the position most commonly compensated using AUO was  physical security specialist. Other AUO-earning positions include  information technology specialists, protective support technicians, and  photographers.
At NPPD, the positions most commonly compensated using AUO  were chemical security inspectors and protective security advisors.
At USCIS, the only position compensated using AUO was  investigative specialist.
At OCSO, the only position compensated using AUO was physical  security specialist.
Most AUO earners within CBP, ICE, USSS, USCIS, and OCSO are in  nonsupervisory positions—compensated at the GS-13 level or below— while the majority of NPPD AUO earners are above the GS-13 level.
According to ICE officials, payments of AUO to cooks and criminal investigators  occurred as a result of position changes. In the case of cooks, individuals moved to AUO- earning positions from the cook position, but their position information was not  immediately updated in the pay system. In the case of criminal investigators, individuals  moved from AUO-earning positions to criminal investigator positions, and ICE continued to  compensate them with AUO instead of the proper overtime mechanism, LEAP. According  to ICE officials, ICE has taken corrective measures in these instances. positions such as chemical security inspectors and protective security  advisors, are generally of an operational and nonsupervisory nature. In  fiscal year 2013, employees within DHS components at GS-14 or -15  levels earned a total of about $41 million in AUO, or 8 percent of total  DHS AUO expenditures while accounting for 6 percent of all DHS AUO  earners. Whether or not a position is supervisory, or if an individual in a  position functions in a supervisory capacity, does not itself render the  individual in the position ineligible to earn AUO. Rather it is the specific  functions and responsibilities of a position that determine eligibility.  However, employees working in supervisory capacities generally are less  likely to be performing the type of work that is eligible, such as  independent investigative functions and responsibilities described in  federal regulations and guidance as appropriate for compensation as  AUO.
section_title: DHS Components Have Begun to Address Significant AUO Administration and Oversight Deficiencies, but Additional Department-wide Oversight Is Needed
paragraphs: DHS components have not implemented AUO appropriately. Specifically,  some DHS component-level policies are not consistent with certain  provisions of federal regulations or guidance. In addition, components  have not regularly followed their AUO policies and procedures,  contributing to significant and widespread AUO administration and  oversight deficiencies across the department. DHS and component  officials have acknowledged significant management problems with the  administration and oversight of AUO and have recently started taking  actions to address these problems, including suspending and  deauthorizing AUO. Further, in May 2014, the DHS Deputy Secretary  issued a memorandum on AUO administration directing all components  using AUO to submit corrective action plans detailing efforts to strengthen  AUO administration and oversight. Although these component plans  could facilitate better management of AUO, DHS does not currently have  sufficient oversight mechanisms in place to help ensure components  implement their AUO policies appropriately and in accordance with law  and regulation. In addition, DHS does not have a plan to report to  Congress on its progress to remediate AUO implementation deficiencies.
subsections: section_title: DHS Components Have More than 20 AUO Policies and Procedures that Vary in How They Implement Oversight and Other Requirements
paragraphs: At the time of our review, DHS did not have a department-wide AUO  policy or directive. Instead, DHS components have administered AUO  under more than 20 policies and procedures.
CBP has about 10 directives, memorandums, and standard operating  procedures, 6 of which predate the creation of DHS in 2003;  ICE has at least 5 instructions and memorandums, 3 of which predate  the creation of DHS;
NPPD consolidated its AUO policies and procedures, which included  adapted ICE policies, into 1 instruction in September 2012;
USCIS has 1 directive and 1 standard operating procedure;
USSS has 3 directives and 1 memorandum; and
OCSO has 1 policy, which is described in a training document.
According to NPPD officials, NPPD consolidated its AUO policies and procedures in  response to an ongoing OIG investigation, among other things. OIG reviewed NPPD’s  ISCD from 2007 through 2012 and found, among other things, that numerous NPPD AUO  guidances contributed to inconsistent AUO use within NPPD. forms for documenting AUO hours and activities. These officials also  stated that variations in AUO policies within CBP have at times resulted in  supervisor and employee confusion regarding which policy to follow,  which could contribute to inconsistent oversight of AUO.
Recognizing the challenges with having multiple AUO policies and  procedures across the component, as well as in response to OSC- referred investigations on CBP’s use of AUO, CBP officials stated that in  2008 they began developing a component-wide AUO policy. CBP halted  this policy development in 2009 while considering possible legislative  changes that would replace AUO with a new type of overtime  compensation structure for Border Patrol agents, the vast majority of  CBP’s AUO-earning workforce. According to CBP officials, this initial  effort to reform Border Patrol pay was never officially proposed in  Congress, and in response to other AUO misuse allegations in 2011,  CBP officials stated that CBP recommenced efforts to develop and  implement a component-wide AUO policy. As of October 2014, CBP had  not issued its component-wide AUO policy. More recently, legislation  passed by both houses of Congress would replace AUO as a means for  compensating Border Patrol agents with a system by which agents elect  into a specified overtime compensation level, among other things. While  testifying on AUO use in January 2014, the Deputy Chief of the U.S.  Border Patrol stated that AUO no longer meets the current needs of the  Border Patrol, in part because AUO does not provide flexibility or ensure  continuous agent coverage of ports of entry and borders. For example, an  agent’s patrol area that is over an hour away from the Border Patrol  station extends the agent’s workday by the amount of time it takes for the  relief agent to reach the patrol area and the outgoing agent to reach the  station.
DHS components’ AUO policies and procedures reflect inconsistent  approaches to implementing and applying federal AUO regulations and  guidance. For example, federal regulations require, and component  policies and procedures include, provisions regarding employee AUO eligibility and agency reviews of AUO rates at appropriate intervals. Component AUO policies or procedures also include most provisions  described in OPM’s 1997 guidance on AUO, which OPM encourages  agencies to consider implementing but are not specifically required by  federal regulation. For example, as shown in figure 6, OPM guidance  urges agencies to conduct an independent review of AUO  administration—to include assessing rates reviews, among other things— at least once every 5 years. CBP, ICE, NPPD, and USCIS policies or  procedures include these provisions. However, OCSO and USSS policies  do not include provisions for independent AUO administration reviews.  According to USSS officials, they instead rely on alternative oversight  mechanisms that assess general management controls. Similarly, OCSO  officials stated that its AUO policy does not include such administration  reviews because they based the policy on other component AUO policies,  such as those legacy policies of ICE. Although the alternative oversight  mechanisms assess several component management practices, they are  not designed to independently assess the component’s administration of  AUO.
See 5 C.F.R. §§ 550.153, 550.161.
section_title: DHS Components Have Not Followed AUO Policies and Procedures or Provided Adequate Oversight of AUO
paragraphs: Although DHS component AUO policies and procedures include a variety  of oversight mechanisms, components have not regularly followed these  policies and, as a result, have not provided adequate oversight of AUO. In  assessing overall implementation of AUO across the department, DHS’s  Deputy Secretary stated in a May 2014 memorandum that the  administration of AUO is in a poor state in many parts of the department.  Specifically, not all DHS components have regularly conducted AUO  authorization and rates reviews, consistently documented AUO hours and  activities or provided supervisory review, or routinely performed AUO  administration reviews, in accordance with their AUO policies and  procedures.
Not all components have regularly conducted AUO authorization  and rates reviews: DHS’s May 2014 AUO administration memorandum  stated that most components have not regularly conducted AUO  authorization reviews in compliance with OPM guidance. In addition, OIG  and CBP reviews found that certain components made AUO payments to  employees for work that did not qualify for AUO, in part because they did  not conduct authorization reviews. For example:
A March 2013 OIG inspection found that because NPPD did not  conduct AUO authorization reviews, NPPD paid chemical security  inspectors about $2 million in AUO in fiscal year 2012 for work that did  not qualify for AUO. At the time of the review, NPPD disagreed with  the OIG’s recommendation to deauthorize AUO for the chemical  security inspectors, but in June 2014, NPPD determined that it would  suspend AUO for its employees, including chemical inspectors, as of  September 2014.
A September 2013 investigation conducted by CBP’s Office of Internal  Affairs on referral from OSC found that one CBP office improperly  paid AUO to seven employees and three supervisors because office  managers did not conduct AUO authorization reviews for these  employees. The employees and supervisors—although authorized to  receive AUO pay in their regular positions—were not eligible to  receive AUO pay during the time frame under investigation because  the office they were temporarily detailed to involved work that was  controllable and administrative in nature.
DHS component officials stated that they did not regularly conduct  authorization reviews because they thought that reviewing AUO rates to  determine amount of pay provided sufficient oversight. For example, the  results of a rates review could find that an employee’s AUO rate should  be decreased to 0 percent, based on the hours of AUO the employee  worked in the prior review period. However, rates reviews do not provide  components with sufficient information to determine whether those  employees who worked enough hours of AUO to qualify for AUO should  continue to receive AUO pay. Authorization reviews are to examine  whether each employee who has received AUO pay in the past should  continue to receive AUO. For example, authorization reviews should  consider past and future expected work duties to ensure that they are  administratively uncontrollable, among other things. Because DHS  components have not regularly conducted AUO authorization reviews,  components are limited in their ability to ensure that employees are in  positions—and performing work—eligible for AUO. In addition, conducting  regular authorization reviews could help agencies identify AUO-earning  employees temporarily detailed to positions not authorized for AUO pay  and who should have their AUO pay discontinued. DHS has begun to  take action to ensure that components regularly conduct authorization  reviews, which we discuss later in the report.
According to OPR, its review did not explore effects of incomplete AUO pay rates  reviews, including improper AUO payments. weeks. The rates review also found that an additional 64 employees  should be deauthorized from AUO, because they did not report the  required minimum number of AUO hours. According to the rates review  report, ICE field offices were to adjust these AUO rates by July 13, 2014,  or within 4 pay periods of the review. However, we found that ICE did not  do so for 22 percent (140 of 629) of the employees identified for a rate  decrease across more than 20 ICE field offices. In addition, ICE did not  adjust the AUO rate to 0 percent for 55 percent (35 of 64) of the  employees identified for deauthorization. We determined that as a result  of not adjusting AUO rates, ICE paid about $76,000 to these employees  using AUO as opposed to compensating them with more appropriate  forms of overtime, as applicable.
According to ICE officials, field office management—which is responsible  for implementing AUO rates adjustments—has not regularly lowered AUO  rates in response to these rates reviews, and ICE human capital officials  did not have a mechanism in place to track the disposition of rates  reviews. As a result, ICE did not have reasonable assurance that it was  paying the appropriate AUO rate to applicable employees. In response to  the findings of its June 2014 review, in July 2014, the ICE Office of  Human Capital began disseminating biweekly reports to ICE  headquarters and field office management detailing required AUO rates  changes and deauthorizations to provide greater oversight and to track  these adjustments. In addition, ICE has plans to develop standard  operating procedures specific to the AUO rates change process to assist  in clarifying and codifying expectations and processes, which could  provide ICE more assurance that it is paying appropriate AUO rates to  employees.
Components have not consistently documented and reviewed AUO  hours and activities: Insufficient documentation of AUO hours and  activities has been a long-standing problem at DHS, according to findings  from numerous reviews and investigations over the past 7 years. For  example, a May 2008 investigation conducted by CBP’s Office of Internal  Affairs on referral from OSC found that employees at two CBP locations  did not document AUO activities in accordance with CBP policies, in part,  because employees did not understand or were not aware of the  documentation requirement. Investigations and reviews conducted by  ICE, CBP, and USCIS also found that employees have not consistently  provided sufficient information in AUO documentation forms. For  example, employees recorded justifications such as “writing memos,” “file  review,” or “supervisory duties” without further explanation. Similarly, we  reviewed examples of NPPD activity documentation from December 2013  and found AUO activity descriptions, such as “team meeting” or “report  writing,” that did not provide additional information to determine if the  activities were administratively uncontrollable.
Furthermore, according to DHS’s May 2014 AUO administration  memorandum, many supervisors and managers do not consistently  review AUO hours claimed to ensure work performed was (1) necessary  overtime, (2) that the amount of time claimed was appropriate, and (3)  that duties were administratively uncontrollable. For example, a January  2014 ICE investigation found that some supervisors conducted  inconsistent reviews of AUO documentation because of minimal AUO  guidance from ERO headquarters and the field office investigated. The  investigation report noted that one supervisor may ask for additional  clarification for AUO documentation that stated “cleaned up paperwork,”  while another supervisor may consider it a sufficient justification of AUO  duties.
Because many supervisors do not consistently review AUO hours, AUO  rates generally remained steady, often at the maximum level, for much of  the department’s workforce authorized for AUO, according to the DHS  May 2014 AUO administration memorandum. Our review of components’  AUO payments data found that, in fiscal year 2013, 88 percent (5,314 of  6,052) of ICE employees earning AUO and 90 percent (19,776 of 21,961)  of CBP employees earning AUO received the maximum 25 percent of  AUO pay. The DHS memorandum further stated that a particular  challenge is that supervisors may routinely approve 2 hours of AUO for  the same employees performing the same tasks at the same time on the  same days of the week, and that work that is steady and consistent is not  uncontrollable. According to testimony from OSC’s Special Counsel at a  January 2014 congressional hearing, using AUO routinely, and every day,  is an entrenched part of the culture at DHS components. In addition,  officials from the department’s Office of the Chief Human Capital Officer  (OCHCO) stated that certain employees were accustomed to using AUO  without much oversight, and that this use of AUO has become part of the  department’s culture. For example, a February 2013 investigation  conducted by CBP’s Office of Internal Affairs, on referral by OSC, found  that Border Patrol agents assigned to the Commissioner’s Situation Room  regularly remained at the duty station 2 hours beyond the end of regularly  scheduled shifts to transition between scheduled shifts.
According to DHS’s May 2014 memorandum on AUO administration,  without sufficient documentation, managers cannot adequately evaluate  hours claimed or differentiate between uncontrollable and scheduled  overtime. In addition, clear and complete AUO activity documentation and  review of that documentation permit components to actively manage  overtime expenditures, such as by varying schedules or staggering shifts  to minimize overtime costs. The memorandum further states that when  supervisors approve claimed AUO hours without appropriately reviewing  activity documentation, employees receive inflated rates of AUO pay  based on the approval of work that should have been scheduled in  advance or completed the next working day. DHS has begun to take  action to ensure that components consistently document and review AUO  activities and hours, which we discuss later in the report.
Components have not routinely conducted AUO administration  reviews: Most DHS components have not routinely conducted  independent reviews of AUO administration. Federal guidance suggests  that these independent reviews are to include reviews of authorization  and rates reviews and AUO activity documentation, among other things.  As previously discussed, OCSO’s and USSS’s AUO policies do not  include a mechanism to independently review AUO administration, and  accordingly, these reviews have not been conducted. ICE’s AUO policies  did not previously include such a mechanism until ICE updated its policy  to include independent AUO administration reviews in July 2014. USCIS  policy calls for annual AUO administration reviews; however, USCIS  conducted them twice from 2008 to 2013. According to USCIS officials,  USCIS did not conduct annual reviews because its response to the 2008  review recommended enhanced AUO administration controls, and the  agency was implementing these controls before assessing AUO again in  2013.
CBP and NPPD have conducted AUO administration reviews at least  once every 5 years in accordance with component policies and consistent  with OPM guidance. In particular, CBP’s Office of Internal Affairs inspects  30 to 50 offices’ management practices annually, which includes a review  of AUO administration focused on time and attendance. Since fiscal year  2011, the Office of Internal Affairs has identified 31 instances of  noncompliance with component AUO policies, and CBP offices have  implemented more than 80 percent of related recommendations.  According to NPPD officials, NPPD conducted a compliance review of  2013 AUO administration, in accordance with its 2012 AUO policy. NPPD  found that, among other things, most of the duties NPPD employees  claimed for AUO did not meet the criteria for AUO. DHS components that  have routinely conducted AUO administration reviews are better  positioned to identify AUO deficiencies, such as supervisors  inconsistently reviewing AUO activity documentation, and to provide  recommendations to improve these deficiencies. DHS has begun to take  action to ensure that components routinely conduct AUO administration  reviews, which we discuss later in the report.
section_title: DHS and Its Components Have Recently Started Taking Actions to Better Manage AUO, but Do Not Have Plans for Mechanisms to Monitor or Report on Progress
paragraphs: DHS has taken actions to address long-standing administration and  oversight deficiencies related to the use of AUO within the department,  but has limited plans to monitor component progress going forward. DHS  issued two memorandums, one calling for components to suspend AUO  for certain employees and one requiring components using AUO to  develop and submit corrective action plans to improve AUO  administration. First, on the basis, in part, of interim findings from a DHS  Office of the General Counsel review of AUO practices initiated in  October 2013, the DHS Secretary issued a January 2014 memorandum.  This memorandum required DHS components to suspend AUO for those  employees (1) engaged as full-time training instructors, (2) working in  component headquarters’ offices, or (3) for whom prior internal  investigations had found to be inappropriately provided AUO pay. In  addition, the memorandum clarified that employees working in active  operational capacities, and whose duties meet the requirements for AUO,  may continue to earn AUO pay. In response, CBP, ICE, and NPPD   According to  subsequently deauthorized AUO for over 700 employees.USSS officials, they did not have any employees earning AUO who were  training instructors or in positions ineligible for AUO, and that its  employees based in headquarters were used in an operational capacity.  Officials from DHS’s OCHCO stated that components were to manage  the January 2014 memorandum’s implementation, because officials  outside of the component could not judge who was in a headquarters  position.
The component plans were due to DHS’s Office of the Deputy Secretary and Office of  General Counsel and, according to DHS officials, were subsequently shared with  OCHCO. According to the May 2014 memorandum, components that had suspended  AUO were not required to submit plans, but must do so prior to any decision to reinstate  the use of AUO in the future. indicated that DHS and its components were not in full compliance with  the rules governing AUO. The memorandum also noted that components  could decide, after weighing the costs and benefits of appropriate AUO  management, to eliminate the use of AUO in favor of other forms of  overtime compensation. According to the memorandum, to improve  components’ administration and oversight of AUO, the corrective action  plans are to, among other things, update any existing policies and practices that exclude certain days  from AUO calculation review periods; ensure that mechanisms are in place to continually evaluate position  and employee AUO authorizations, including those for employees  assigned to temporary or long-term details;  improve existing documentation of AUO duties and hours with regard  to completeness and clarity; and  strengthen supervisor reviews of AUO hours claimed, particularly for  those supervisors that routinely approve AUO for the same  employees performing the same tasks at the same time on the same  days of the week, among other things.
According to a senior OCHCO official, CBP, ICE, and USSS submitted  draft AUO corrective action plans to the Deputy Secretary on or closely to  June 23, 2014. In lieu of a corrective action plan, NPPD submitted a  memorandum detailing its intention to suspend AUO for its employees,  which it implemented in September 2014. As of October 2014, the plans  were not final because, according to the senior OCHCO official, OCHCO  and the Office of the General Counsel are in the process of providing  feedback to components on the draft AUO corrective action plans. The  official added that components are to finalize these plans after DHS  implements its department-wide AUO directive so that the plans may  incorporate requirements from the directive, as appropriate.
DHS components have already started taking some actions to strengthen  AUO administration and oversight. For example:  In April 2013, CBP began a review of all 187 positions authorized for  AUO, and completed this review in June 2014. CBP deauthorized  AUO for more than 1,900 employees in 139 positions on September  7, 2014. The authorization review found that 48 positions were still  eligible for AUO based on the nature of work duties, and proposed  next steps such as revising current position descriptions, issuing new  position descriptions detailing AUO-qualifying duties performed by  employees in those positions, and pursuing the recovery of instances  of improper AUO payments. In addition, CBP officials responsible for  human resources reported that they were in the process of updating  AUO employee documentation forms from requiring one supervisory  signature to requiring supervisors to sign each line describing AUO  activities. Officials stated that this change could help supervisors  better ensure that activities are appropriate for AUO, as opposed to a  different type of overtime.
According to ICE human capital officials, ICE also has actions under  way to strengthen its AUO administration and oversight in addition to  actions taken in response to the June 2013 OPR inspection of AUO  misuse. These actions include, among other things, conducting a  comprehensive review of position descriptions to determine eligibility  for AUO authorization, which began in April 2014. As of December  2014, ICE reported that the review had not yet been finalized. Further,  in July 2014, ICE issued a memorandum to all ICE supervisors  regarding their responsibility to review the accuracy of subordinates’  time and attendance records—specifically with regard to AUO—and  issued a Premium Pay Guide, which summarizes relevant statutory  and regulatory requirements, requires independent AUO reviews and  audits every 5 years, and provides examples of AUO-eligible duties,  among other things.
DHS officials reported that USSS has issued a series of messages to  employees and supervisors regarding AUO eligibility, among other  things.
In addition to calling for corrective action plans, DHS’s May 2014  memorandum directed OCHCO to develop a department-wide AUO  directive applicable to all DHS components using AUO by no later than 60  days from the date of the memorandum. A senior OCHCO official  reported that OCHCO submitted the directive to components for comment  within this time frame, and that, as of October 2014, officials were in the  process of reviewing component comments. According to the May 2014  memorandum, the department-wide AUO directive is to include specific  requirements to strengthen AUO administration and oversight, including  designating OCHCO with ensuring consistent application of AUO policies  and procedures across components. Specifically, the directive is to,  among other things, prohibit the practice of excluding certain days, and provide guidance  on accounting for extended employee absences from the performance  of normal duties;  require component-wide reviews of all AUO-certified positions every 3  years; establish roles and responsibilities for identifying; documenting; and, if  necessary, temporarily discontinuing AUO pay for employees  temporarily reassigned to other offices or duties; mandate that all time sheets used to record AUO hours require  detailed descriptions of the work performed sufficient to permit  supervisors to determine whether and how the work is administratively  uncontrollable; and  require all components using AUO to arrange for an annual,  independent, third-party audit and to report the results of each audit to  OCHCO.
Further, the directive is to provide central, department-wide oversight of  AUO use, by charging OCHCO and the Office of the General Counsel  with monitoring components’ progress in remediating AUO deficiencies,  among other things. able to finalize their corrective action plans and move forward with  implementing any additional actions to improve AUO administration and  oversight.
The May 2014 memorandum also states that after DHS issues the AUO directive,  components may—with concurrence of OCHCO to ensure consistency with the  department-wide directive and the Office of the General Counsel for legality—issue  component- or office-specific AUO guidance.
GAO, Standards for Internal Control in the Federal Government, GAO/AIMD-00-21.3.1  (Washington, D.C.: Nov. 1, 1999). confirm that components are implementing AUO oversight mechanisms,  such as rates reviews. However, these human resources assessments  are broad and cover multiple aspects of a component’s human resource  functions, and occur relatively infrequently. Given DHS components’ long- standing and pervasive problems with AUO administration and oversight,  including AUO reviews as part of general human resources assessments  provides the department with limited assurance that it can effectively  monitor and evaluate components’ progress in addressing AUO  deficiencies on a sustained basis. Developing and executing a  department-wide oversight mechanism to ensure components implement  AUO appropriately on a sustained basis, and in accordance with law and  regulation, could better position DHS to monitor components’ progress  remediating AUO deficiencies.
Although the May 2014 memorandum states that the department-wide  directive will require components to arrange for annual third-party audits  of AUO and report the results to OCHCO, DHS does not plan to report  these results or progress with remediating AUO deficiencies to Congress.  A senior OCHCO official stated that the department does not have plans  to report oversight results to Congress because DHS management has  demonstrated its commitment to improving AUO administration and  oversight through its plans to issue a department-wide AUO directive.  However, given the long-standing and extensive nature of AUO  administration and oversight deficiencies across DHS components, and  AUO payments in excess of $500 million in fiscal year 2013 to  compensate employees for overtime work performed, additional oversight  by Congress would help hold DHS accountable for ensuring that its  planned actions resolve the challenges the department has faced with  managing AUO. If Congress is not kept apprised, in a timely manner, of  DHS’s department-wide efforts to administer and oversee AUO, it will not  have all the pertinent information necessary to oversee the department’s  progress, if any, in this area. Submitting regular reports to Congress on  the department’s progress in remediating AUO deficiencies could provide  assurance that components have made progress remediating AUO  implementation deficiencies and have sustained effective and appropriate  use of AUO in accordance with law and regulation.
section_title: DHS Components Have Suspended and Deauthorized AUO for Certain Offices and Positions, Reducing Overtime Hours Worked and Overtime Expenditures
paragraphs: In November 2013, USCIS and OCSO suspended AUO for all their AUO- eligible employees, or approximately 30 and 15 employees, respectively,  in part because of various challenges with the administration of AUO  across the department or within its respective component. Following  these suspensions of AUO, the number of employees earning any  overtime payments, the overall overtime hours worked per pay period,  and the amount of overtime compensation decreased in USCIS and  OCSO. According to officials from USCIS and OCSO, these decreases  in employees’ receiving AUO and the decreases in hours of total overtime  worked have contributed to investigation case backlogs for USCIS and  decreased employee morale for both components. In addition, other DHS  components responded to the Secretary’s January 2014 memorandum by  deauthorizing AUO for over 700 employees in specific positions—mostly  within CBP and ICE. These components were compensating these  employees with AUO at an annual rate of approximately $16 million in  AUO at the time. According to CBP officials, these deauthorizations may  lead to issues with recruiting for headquarters-based and instructor  positions from elsewhere in the component, and CBP and ICE officials  stated they may also contribute to a decrease in employee morale.
subsections: section_title: Overtime Hours Worked and Overtime Expenditures Have Been Reduced following USCIS and OCSO Suspensions of AUO
paragraphs: Following USCIS and OCSO suspensions of AUO, the total number of  overtime hours worked and the total amounts of overtime expenditures  decreased for both components. USCIS and OCSO officials stated that  these reductions have affected the backlog of investigation cases and  affected employee morale, respectively. However, officials stated that  they should be able to mitigate these impacts on both components. Prior  to USCIS suspending AUO effective November 19, 2013, approximately  30 USCIS employees were eligible to earn AUO—specifically,  investigators within the Office of Security and Integrity (OSI). These  investigators’ responsibilities, as part of OSI, include internal  investigations. Prior to the suspension of AUO, 1 employee who received  AUO payments also received compensation for scheduled overtime.  Therefore, USCIS primarily compensated OSI investigators for overtime  work using AUO pay. Since the suspension, USCIS has compensated   Table 4 shows  employees on an hourly basis for any overtime worked.the differences between USCIS use of AUO prior to the suspension and  the use of scheduled overtime following suspension.
With a drop in the number of employees earning overtime payments, and  an approximate 78 percent drop in the average number of overtime hours  worked per pay period, USCIS saw a decrease in total overtime  payments of about $274,000 when comparing the 13 pay periods before  and the 13 pay periods after the suspension of AUO. According to USCIS  officials, the drop in the average number of employees earning overtime  payments following USCIS’s November 2013 suspension of AUO may be  partly a result of supervisors’ reluctance to approve overtime requests  and is not reflective of the amount of work that needs to be accomplished.  For example, in the 3 pay periods immediately following the suspension  of AUO, 2 OSI employees claimed any overtime hours, while the rest  claimed none. During the fourth through seventh pay periods after the  AUO suspensions, an average of 21 employees earned overtime, closer  to the average of employees earning AUO payments prior to the  suspension. However, for the remaining 6 pay periods that we analyzed,  the number of employees that earned overtime fell to an average of 4.
Since the suspension of AUO, and USCIS’s subsequent deauthorization  of AUO in July 2014, employees have been using scheduled overtime in  accordance with USCIS requirements on when overtime can be  approved, according to USCIS officials. USCIS officials stated that they  have seen an increase in the case backlog—the number of open  investigation cases compared with the number of new cases—although  the backlog increase could also be due to other factors in addition to the  suspension of AUO, such as new quality assurance processes and an  increased number of cases being investigated per employee. According  to USCIS, the number of open cases has increased from 268 in the fourth  quarter of fiscal year 2013, just before the suspension of AUO, to 346 in  the third quarter of fiscal year 2014. The number of new cases has  decreased from 102 in the fourth quarter of fiscal year 2013 to 59 in the  third quarter of fiscal year 2014. USCIS officials stated that USCIS  management has addressed the case backlog by authorizing more  personnel resources in fiscal year 2014 and may increase resources for  fiscal year 2015. This may provide some relief for the overall amount of  work that is required to address the case backlog.
Prior to OCSO suspending AUO effective November 22, 2013,  approximately 15 OCSO employees working in the force protection and  technical services branches earned AUO. According to OCSO officials,  these employees’ responsibilities include force protection, investigation,  and technical security countermeasures, and these employees must be  available after hours to respond to emergent events. Following the AUO  suspension, OCSO used scheduled overtime to compensate these  employees. Table 5 shows the differences between OCSO use of AUO  prior to the suspension and the use of directed or scheduled overtime  following the suspension.
According to OCSO officials, fewer employees worked overtime after the  suspension of AUO because OCSO has implemented budget efficiencies  and some employees have opted out of working any overtime. However,  the average number of overtime hours worked per employee remained  the same—approximately 12 hours per pay period before and after the  suspension of AUO. With a drop in the average number of employees  earning overtime payments and about a 41 percent decrease in the total  overtime hours worked per pay period, OCSO saw a decrease in total  overtime payments of about $77,500 when comparing the 13 pay periods  before suspension and the 13 pay periods after suspension. According to  OCSO officials, employee morale has dropped for those affected by the  AUO suspension, because of a decrease in pay and a sense that the  suspension came with no warning and with no suggestion of wrongdoing  on the part of OCSO in administering AUO or of OCSO employees in  using AUO. As shown in table 7, the average employee’s additional  overtime pay decreased from about $797 per pay period to about $666  per pay period following OCSO’s AUO suspension. To OCSO officials’  knowledge, no employees have resigned because of the AUO  suspension. OCSO officials said there have not been any significant  operational impacts resulting from the suspension of AUO, and overtime  work is still done, as needed and appropriate, with approval by the  supervisor in charge.
section_title: DHS Components Deauthorized AUO for Over 700 Employees Who Remain Eligible for Other Appropriate Means of Overtime Compensation
paragraphs: In response to the DHS Secretary’s January 27, 2014, memorandum,  CBP, ICE, and NPPD collectively deauthorized AUO for over 700 AUO- earning employees by March 2014. However, these employees are still  able to earn other types of overtime, and deauthorizing AUO for these  employees does not indicate that the hours worked prior to the  memorandum should not have been compensable. In general, DHS’s  January 2014 memorandum called for the suspension of AUO payments  to individuals (1) working in component headquarters offices (unless in an  operational, AUO-eligible capacity), (2) working as full-time training  instructors, and (3) determined as having been inappropriately provided   Employees located in headquarters and full-time instructors  AUO pay.are more likely to be employed in supervised office environments, not  performing independent investigative tasks that could be uncontrollable  as described in federal regulation and guidance. For example, these  employees may still be able to earn regular and scheduled overtime  under FEPA and FLSA in a manner similar to those employees in USCIS  and OCSO discussed previously. Table 6 shows CBP, ICE, and NPPD’s  total number of employees deauthorized from AUO in response to DHS’s  January 2014 memorandum.
As shown in table 6, CBP deauthorized AUO for 565 employees in CBP  headquarters and at other locations, who received a total of  approximately $11.9 million per year in AUO pay assuming their salaries  and AUO rates remained constant. This translates to about $21,000 per  employee per year. ICE deauthorized AUO for 181 employees, including  111 employees whose positions were improperly classified as eligible for  AUO. According to ICE officials, these improperly classified employees  were authorized for AUO based on legacy designations from INS, and  were not previously identified as being improperly authorized because  ICE did not conduct annual reviews of position descriptions. In total, these  ICE employees received approximately $4.5 million (or about $25,000 per  employee) per year in AUO pay, assuming their salaries and AUO rates  remained constant. NPPD deauthorized AUO for 3 employees who  received approximately $54,500 (or about $18,000 per employee) per  year in AUO pay, assuming their salaries and AUO rates remained  constant. USSS officials stated that they did not suspend or deauthorize  AUO for any employees because of the January 2014 memorandum.  According to USSS officials, all USSS employees earning AUO perform in  an operational, not administrative, capacity and remain eligible for AUO.  CBP officials stated that these deauthorizations of AUO may affect  recruitment of high-caliber employees into temporary details to  headquarters-based or instructor positions because these employees  may see a decrease in earnings as compared with earnings in field  positions that remain eligible for AUO. ICE officials stated that they have  not seen any discernible changes in attrition or recruitment related to the  deauthorizations of AUO for headquarters-based and instructor positions.
section_title: Conclusions
paragraphs: DHS employees perform critical missions on behalf of the American  public. DHS components owe their employees and the public assurance  that public funds, including those spent on AUO work, are used in a  manner consistent with applicable law, regulation, and policy. Because  certain positions and duties in DHS may require occasional or irregular  overtime that cannot be scheduled in advance or controlled through  administrative means, such as staggering shifts or hiring additional  personnel, AUO provides DHS components with flexibility to compensate  such AUO-eligible employees. The flexibility of AUO, however, requires  the department and components to provide rigorous oversight of the use  of AUO—including careful and consistent review of hours claimed and  employee eligibility, among other things, so that AUO is appropriately  used. Reviews as far back as 1997 show that current DHS entities—such  as U.S. Border Patrol—have not properly managed AUO, partly because  of a culture throughout DHS that employees in certain positions may use  AUO without much oversight and regardless of whether AUO is the  appropriate compensation for the work being performed. Furthermore,  extensive AUO oversight deficiencies have continued since the formation  of DHS in 2003 because DHS components have not implemented AUO in  a manner consistent with federal law, regulation, and guidance, and  component policies.
DHS is taking actions to improve the management of AUO as detailed in  the Deputy Secretary’s May 23, 2014, memorandum that requires  components to develop and implement corrective action plans and  requires DHS to develop a department-wide directive on AUO. Until the  directive is finalized, it is unclear what provisions will be included, and  whether oversight mechanisms will be robust enough and sufficient to  address the myriad of deficiencies identified with AUO administration and  oversight. Given the department’s total spending on AUO payments of  over $500 million in fiscal year 2013 and DHS’s long-standing and  widespread AUO administration and oversight deficiencies, ensuring  accountability and safeguarding the expenditure of public funds is  paramount. By developing and executing a department-wide oversight  mechanism to ensure components implement AUO appropriately on a  sustained basis, and in accordance with law and regulation, DHS could  be better positioned to monitor components’ progress remediating AUO  deficiencies. In addition, by DHS reporting annually to Congress on the  extent to which DHS components have made progress in remediating  AUO implementation deficiencies, including information from annual third- party AUO audits or other department AUO oversight efforts, Congress  could have reasonable assurance that DHS components have sustained  effective and appropriate use of AUO in accordance with law and  regulation.
section_title: Matter for Congressional Consideration
paragraphs: To ensure that DHS components have sustained effective and  appropriate use of AUO in accordance with law and regulation, Congress  should consider requiring DHS to report annually to Congress on the use  of AUO within the department, including the extent to which DHS  components have made progress remediating AUO implementation  deficiencies and information from annual third-party AUO audits or other  department AUO oversight efforts.
section_title: Recommendation for Executive Action
paragraphs: To better position DHS to monitor components’ progress remediating  AUO deficiencies, we recommend that the Secretary of DHS develop and  execute a department-wide oversight mechanism to ensure components  implement AUO appropriately on a sustained basis, and in accordance  with law and regulation.
section_title: Agency Comments and Our Evaluation
paragraphs: We provided a draft of this report to DHS for review and comment. DHS  provided written comments, which are reprinted in appendix IV. In its  comments, DHS agreed with the recommendation and outlined actions to  address it. Specifically:
DHS stated its forthcoming department-wide AUO policy will  require 1) annual third-party audits of components’ use of AUO  that will measure compliance with DHS policy, component  requirements, and related regulations; 2) components to provide a  copy of each completed annual third-party audit to component  leadership and the DHS Chief Human Capital Officer; and 3)  component heads to certify annually that their AUO-eligible  positions meet statutory, regulatory, and DHS policy requirements.
DHS further stated that the DHS Chief Human Capital Officer is to  inform the DHS Under Secretary for Management of the results of  these annual audits. If the audits identify any concerns, the Under  Secretary for Management is to facilitate their resolution or elevate  them to more senior leadership to ensure they are addressed.
DHS reported that its department-wide AUO policy is going  through final internal coordination and will be distributed to  national labor unions for review and comment before publication.  DHS estimates the AUO policy will be finalized and implemented  by June 30, 2015.
If fully implemented, these actions will address the intent of our  recommendation. DHS also provided technical comments on a draft of  this report, which we incorporated as appropriate.
We are sending copies of this report to the appropriate congressional  committees, the Secretary of Homeland Security and other interested  parties. In addition, the report is available at no charge on the GAO  website at http://www.gao.gov.
If you or your staff have any questions, please contact me at (202) 512- 9627 or maurerd@gao.gov. Contact points for our Offices of  Congressional Relations and Public Affairs may be found on the last page  of this report. GAO staff who made significant contributions to this report  are listed in appendix V.
section_title: Appendix I: Objectives, Scope, and Methodology
paragraphs: This report addresses the following three questions:  1.  How much has the Department of Homeland Security (DHS) spent on  administratively uncontrollable overtime (AUO) pay from fiscal year  2008 through March 2014?  2.  To what extent have DHS components implemented AUO  appropriately?  3.  How have recent AUO suspensions and deauthorizations at selected  DHS components affected their use of overtime?
For this report, we assessed DHS’s use of AUO for those components  that compensated employees with AUO from fiscal year 2008 (October  2007) to March 22, 2014—the most currently available data for fiscal year  2014 at the time of our data request. However, when calculating annual  averages, we used the last full year of available data—fiscal year 2013.  Specifically, these components included U.S. Customs and Border  Protection (CBP), U.S. Immigration and Customs Enforcement (ICE),  National Protection and Program Directorate (NPPD), U.S. Citizenship  and Immigration Services (USCIS), U.S. Secret Service (USSS), and the  Office of the Chief Security Officer (OCSO). We include OCSO in our  scope when we refer to DHS components throughout this report. We  selected this time frame because the Office of Special Counsel (OSC)  first raised allegations of AUO abuse within DHS in 2007. We omitted the  Federal Law Enforcement Training Center (FLETC) and DHS’s Office of  the Chief Information Officer (OCIO) because they previously used AUO  on a limited basis to fewer than 10 employees, for about 1 year.  Specifically, FLETC compensated 1 employee with AUO from July 2010  to October 2011, and OCIO compensated 4 employees with AUO from  April 2012 to May 2013.
To determine how much each DHS component spent on AUO from fiscal  year 2008 through March 2014, we collected AUO payments data for all  DHS components that paid AUO since October 2007. These data  included AUO payments to individual employees within each component  per pay period as well as occupational characteristics such as grade,  series, position title, salary, location, and program office. These data  allowed us to calculate, for each component and in aggregate for DHS,  the total amount of AUO paid per fiscal year; the average amount of AUO  pay per employee; the number of recipients of AUO; and the counts of  AUO recipients by location, grade, and position title. We assessed the  reliability of the AUO payments data by (1) interviewing agency officials  about the data sources, the systems’ controls, and any quality assurance  steps performed by officials before data were provided from the systems  and (2) testing the data for missing data, duplicates, negative dollar  amounts or payments, entries with values beyond expected ranges, or  other entries that appeared to be unusual. We identified limitations to the  data including incomplete duty location information for CBP, incomplete  date ranges for NPPD, as well as missing AUO payments and other  variables for several components. The missing locations data for CBP  affected about 9 percent of all records that we received, and we included  caveats in the report where relevant. In addition, NPPD was unable to  provide AUO payments from fiscal years 2008 through 2009 because its  system does not allow access to older years’ information at the level of  detail requested. NPPD accounted for about 1 percent of all AUO  payments during the years of data available to us, so we believe the  absence of the fiscal years 2008 and 2009 of NPPD AUO payments data  likely resulted in a minimal impact on our reported overall expenditures for  those years. We included caveats in the report where relevant related to  NPPD’s AUO payments data. Additionally, USSS was able to provide  calendar year payments data only for 2008 through 2010, resulting in a 3  month overlap with the last 3 months of calendar year 2010 with the first 3  months of fiscal year 2011. Since USSS constitutes a relatively small  amount of total AUO payments any impacts on the aggregate data are  likely minimal. We found the components’ data sufficiently reliable and  complete for providing descriptive information on the amount of AUO that  DHS components paid and on the occupational characteristics of  employees earning AUO payments.
To determine the extent to which DHS components implemented AUO  appropriately, we reviewed AUO policies and procedures for those DHS  components that compensated employees with AUO from fiscal year  2008 through March 2014—CBP, ICE, NPPD, USSS, OCSO, and  USCIS. We analyzed these policies and procedures to determine the extent to which they comply with relevant federal regulations and  incorporate Office of Management and Personnel (OPM) guidance. We  also interviewed OPM officials about these regulations and guidance to  better inform our understanding of components’ AUO policies and  procedures. To describe the extent to which AUO policies and procedures  may have contributed to inappropriate implementation of AUO, we  reviewed relevant Office of Inspector General (OIG) and OSC-referred  component investigation and review reports that were based on referrals  or otherwise begun between May 2007 and January 2014. We reviewed  the Department of Justice’s OIG’s sampling methodology for its 1997  review of Border Patrol employees’ use of AUO, and found it sufficiently  sound to report the results. In addition, to assess the extent to which ICE  consistently adjusted AUO rates, we compared AUO rates changes for  employees identified by ICE with personnel actions to decrease AUO  rates, and thereby AUO payments, for identified employees. We selected  ICE because officials indicated that AUO rates adjustments were not  carried out in a timely fashion by field office officials. Further, we reviewed  AUO activity documentation submitted by NPPD employees from  December 1 through 14, 2013, because NPPD stores this documentation  electronically and it was the most recently available documentation at the  start of our review.
We also met with agency officials from component program offices that  compensated employees with AUO to obtain their perspectives on AUO  policies and procedures, as well as implementation of these policies and  procedures, including (1) DHS’s Office of the Chief Human Capital Officer  (OCHCO); (2) CBP’s U.S. Border Patrol, Office of Internal Affairs, Office  of Field Operations, Office of Training and Development, and Office of Air  and Marine; (3) ICE’s Office of Human Capital, Enforcement and  Removal Operations, Homeland Security Investigations, and Office of  Professional Responsibility; (4) NPPD’s Infrastructure Security  Compliance Division, Protective Security Coordination Division, and  Federal Protective Service; (5) USCIS’s Office of Security and Integrity;  (6) USSS’s Management and Organization Division, Office of  Investigations, Office of Protective Operations, and Office of Technical  Development and Mission Support; and (7) OCSO. We also met with  representatives from two unions with bargaining unit members receiving  AUO to obtain their perspectives on components’ use of AUO: the  National Border Patrol Council and the National ICE Council. To  determine actions DHS and its components have taken to strengthen  AUO policies and procedures and to improve implementation of these  policies and procedures, we reviewed DHS’s January 23, 2014, and May  23, 2014, memorandums on AUO administration.
To determine how recent DHS suspensions of AUO have affected use of  overtime, we analyzed employee overtime information for those  employees who received AUO compensation from USCIS and OCSO,  both of which suspended AUO in November 2013. Components use  different terms to describe the cessation of AUO within their respective  components. For the purposes of this report, we use “suspension” of AUO  when addressing components’ actions to completely stop use of AUO for  all employees without a formal, written determination as to a particular  employee’s or position’s AUO eligibility. Specifically, we compared  overtime hours worked and overtime paid for these employees prior to  and after the AUO suspension. Our analysis included 13 pay periods of  AUO payments and hours worked prior to the suspension of AUO and 13  pay periods of Federal Employees Pay Act (FEPA), or scheduled  overtime, payments, and hours worked following the suspension of AUO.  To determine how recent deauthorizations have affected components, we  analyzed AUO paid to employees who DHS components subsequently  deemed to be incorrectly receiving AUO following DHS Secretary  Johnson’s January 27, 2014, memorandum, which instructed components  to suspend AUO for certain categories of employees. For the purposes  of this report, we use “deauthorization” of AUO when referring to  components’ actions to identify specific employees or positions as no  longer eligible for AUO. We analyzed a list of all individuals from CBP,  ICE, and NPPD who had been deauthorized from receiving AUO, and  requested that each record also include the reason for the person’s  deauthorization. USSS responded that it did not have any employees  meeting the criteria of the memorandum and therefore did not suspend or  deauthorize any employees and did not provide any such data to us. We  combined the CBP, ICE, and NPPD lists with the AUO payments data  previously discussed, and calculated the amount of AUO that DHS  components paid individuals just prior to the time of deauthorization in  January 2014. Subsequently, we estimated the annual amount paid to  these individuals by multiplying the total they were paid at the time of  suspension by 26, the total number of pay periods in a year. Since these  pre- and postsuspension data and deauthorization data are from the  same sources as we assessed above, we interviewed agency officials  about any specific limitations to these different data sets. We did not  identify any additional limitations, and noted any caveats to our analysis.  We found the data sufficiently reliable for providing descriptive information  on how DHS and components’ November 2013 suspensions of AUO  have affected use of overtime and the amount of AUO paid to employees  deauthorized from receiving AUO following the January 2014  memorandum. In addition, we interviewed officials from USCIS and  OCSO, as well as CBP, ICE, and NPPD, to collect their perspectives on  the effect that the AUO suspensions and deauthorizations had on their  ability to fulfill mission-critical tasks, such as any related attrition or morale  issues.
We conducted this performance audit from January 2014 to December  2014, in accordance with generally accepted government auditing  standards. Those standards require that we plan and perform the audit to  obtain sufficient, appropriate evidence to provide a reasonable basis for  our findings and conclusions based on our audit objectives. We believe  that the evidence obtained provides a reasonable basis for our findings  and conclusions based on our audit objectives.
section_title: Appendix II: Reviews of the Department of Homeland Security (DHS) Components’ Use of Administratively Uncontrollable Overtime (AUO)
paragraphs: Appendix II: Reviews of the Department of  Homeland Security (DHS) Components’ Use of  Administratively Uncontrollable Overtime  (AUO)
Various entities have investigated and reviewed the use of AUO by DHS  components, including components that existed prior to the formation of  DHS in 2003. More recently, the DHS Office of Inspector General (OIG)  and DHS components’ offices of internal affairs, in response to  allegations referred by the U.S. Office of Special Counsel (OSC), have  conducted investigations and reviews of AUO at DHS. Table 7 lists these  selected past investigations and reviews of DHS components’ use of  AUO.
section_title: Appendix III: Variations in Administratively Uncontrollable Overtime (AUO) Policies and Procedures for Department of Homeland Security (DHS) Components
paragraphs: DHS components have numerous and varying AUO oversight and  administration policies and procedures. In particular, policies and  procedures differ regarding the frequency of AUO authorization and rates  reviews, activity documentation, and guidance on temporary details.  Table 8 shows the extent to which selected AUO oversight and  administration mechanisms are included in DHS component policies.
In addition, some component AUO policies and procedures do not  address federal regulation and guidance regarding temporary details.  Specifically, CBP’s and USSS’s policies do not include guidance to  identify whether employees should continue to receive AUO while on  temporary details away from their normal duties. Table 9 shows the  extent to which DHS component policies and procedures address federal  regulations regarding employees earning AUO while assigned to a  temporary detail.
section_title: Appendix IV: Comments from the Department of Homeland Security
section_title: Appendix V: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
section_title: Staff Acknowledgments
paragraphs: In addition to the contact named above, Adam Hoffman (Assistant  Director), David Alexander, Cynthia Grant, Eric Hauswirth, Susan Hsu,  Thomas Lombardi, Alicia Loucks, Elizabeth Luke, Ruben Montes de Oca,  and Sean Standley made key contributions to this report.