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

Letter

Background

DHS Components with AUO-Earning Employees

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.

AUO Eligibility and Compensation

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.

Past Reviews of DHS Components’ Use of AUO

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.

DHS Components Averaged $434 Million Annually in AUO Payments from Fiscal Years 2008 through 2013, Mostly for Border Patrol Agents

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.

AUO Expenditures within DHS Have Increased since Fiscal Year 2008 because of Higher Payments per Earner and Greater Overall Numbers of Earners

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.

The Majority of AUO Earners within DHS Work in Nonsupervisory Positions along the Southwest Border

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.

DHS Components Have Begun to Address Significant AUO Administration and Oversight Deficiencies, but Additional Department-wide Oversight Is Needed

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.

DHS Components Have More than 20 AUO Policies and Procedures that Vary in How They Implement Oversight and Other Requirements

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.

DHS Components Have Not Followed AUO Policies and Procedures or Provided Adequate Oversight of AUO

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.

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

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.

DHS Components Have Suspended and Deauthorized AUO for Certain Offices and Positions, Reducing Overtime Hours Worked and Overtime Expenditures

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.

Overtime Hours Worked and Overtime Expenditures Have Been Reduced following USCIS and OCSO Suspensions of AUO

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.

DHS Components Deauthorized AUO for Over 700 Employees Who Remain Eligible for Other Appropriate Means of Overtime Compensation

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.

Conclusions

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.

Matter for Congressional Consideration

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.

Recommendation for Executive Action

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.

Agency Comments and Our Evaluation

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.

Appendix I: Objectives, Scope, and Methodology

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.

Appendix II: Reviews of the Department of Homeland Security (DHS) Components’ Use of Administratively Uncontrollable Overtime (AUO)

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.

Appendix III: Variations in Administratively Uncontrollable Overtime (AUO) Policies and Procedures for Department of Homeland Security (DHS) Components

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.

Appendix IV: Comments from the Department of Homeland Security

Appendix V: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

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.