Frequently-Asked Questions on CBP Global Settlement
What was settled?
NTEU and CBP settled a dozen pending national grievances filed on behalf of CBP Officers (CBPOs) and Agricultural Specialists (CBPASes) involving shift, scheduling and overtime issues. Under the agreement, eligible employees will receive a cash distribution and/or compensatory time.
CBP paid a sum of money into a settlement fund. A settlement administrator has been retained to calculate and make payments to individuals covered by the settlement agreement using a formula based on years of service.
This was an extremely complex settlement following many years of litigation and months of challenging negotiations. Because of legal limitations on the funds CBP can use for this purpose and how those monies can be spent, the terms and the payout formula are unusually complicated.
Which grievances are covered?
The settlement covers a dozen pending national grievances filed on behalf of CBPOs and CBPASes concerning claimed violations of: (1) the scheduling requirements of 5 U.S.C. Section 6101 and Article 34, Section 5 of the contract; (2) the bid and rotations provisions of Article 13; (3) implementation of the Revised National Inspection Assignment Policy (RNIAP); and, (4) COPRA and/or the Fair Labor Standards Act (FLSA) for unpaid work. The settlement also covers local grievances making the same claims for the same time period.
Which employees are entitled to cash distributions under the settlement?
The settlement covers current and former bargaining unit GS-1895 CBPOs, including CBPOEs and canine officers, and GS-401 CBPASes who served in one of those positions between October 1, 2010 and September 30, 2015. It also includes retirees who were employed in one of these bargaining unit positions at some point in FY 11 – FY 15 (10/1/10 – 9/30/15).
Why must one have been a bargaining unit CBPO or CBPAS at some point between 10/1/10 and 9/30/15 to be eligible to receive a payment under the settlement?
Only individuals who occupied a bargaining unit CBPO or CBPAS position between 10/1/10 and 9/30/15 are eligible to receive a payment under the settlement because of legal limitations on the use of CBP’s appropriated funds.
What about employees who have retired?
Retired employees are eligible to receive payments from the settlement fund provided they occupied a bargaining unit CBPO or CBPAS position at some time between 10/1/10 and 9/30/15.
I will be retiring this calendar year. Will I be eligible for a payment under the settlement?
If you held a CBPO or CBPAS position between 10/1/10 and 9/30/15, you will be eligible to receive payment from the settlement fund.
I was a bargaining unit member during the 10/1/10 – 9/30/15 time period but retired. Will I receive a payment at the same time as current eligible employees?
Yes. We expect that payments to all individuals covered by the settlement will be distributed at around the same time.
Will employees who were detailed to supervisory or other non-bargaining unit positions be included?
Individuals will only receive length of service credit under the distribution formula for years served in a bargaining unit position. To receive credit for a particular year, an individual must have served at least six months in a bargaining unit CBPO or CBPAS position.
How were cash distributions determined?
Individual amounts were determined using a share-based formula, with the number of individual shares based on years of service from FY2003 to FY2015 (between 10/1/02 and 9/30/15). Greater weight was given to service from 2003 to 2011, when most of the violations covered by the settled grievances occurred. Specifically, individuals were assigned 3 points for each year of service in a covered BU position between 2003 and 2011 and 1 point for each year of service in a covered BU position between 2012 and 2015. To qualify as occupying a covered BU position during a particular year, for purposes of assigning points, the individual must have occupied the covered BU position for at least six months of that year.
For example, an individual who occupied a covered BU position for at least six months in each year between 2003 and 2013 would be assigned 27 points in the distribution of 2011 funds because, as of 2011, that employee had nine years of service that fell between 2003 and 2011. Following the same approach for 2012 and 2013 funds, the individual would be assigned 28 points in the distribution of 2012 funds and 29 points in the distribution of 2013 funds.
The individual’s share of the funds in each fiscal year 2011-2015 is equal to his or her points divided by the total points for all individuals entitled to a share of the fiscal year’s funds. Thus, for the individual who occupied a covered BU position between 2003 and 2013, his or her share of the 2011 funds would be equal to 27 divided by the total number of points for all individuals entitled to the FY 2011 funds. Similarly, that individual’s share of the 2012 funds would equal 28 divided by the total number of points for all individuals entitled to the 2012 funds, and his or her share of the 2013 funds would equal 29 divided by the total number of points for all individuals entitled to the 2013 funds.
There are two limitations on payments: the annual overtime cap of $35K (or $45K if the individual received a waiver) and payments already made pursuant to covered national or local grievances. If an individual could not receive the full amount of the payment due them in a particular FY due to the overtime cap, the settlement administrator determined whether their payment in other fiscal years can be enhanced, while remaining under the cap, to make up the difference.
Will the fact that I reached the annual OT cap in one or more of the fiscal years from FY 11 – FY 15 affect my payment under the settlement?
Possibly. The settlement agreement provides that “payments issued to an individual for a particular fiscal year under the distribution formula cannot cause that individual to exceed that fiscal year’s limitation on overtime pay.” Those who do not receive their full payment because of cap limitations are entitled to additional comp time.
; When will employees who did not receive their full payment because of OT cap limitations be notified of their entitlement to additional comp time?
Employees granted additional comp time because of OT cap limitations will receive a notice of their entitlement with their payment check. The exact amount of their additional comp time will not be known until all payment appeals are resolved and the second, final round of payments to liquidate the settlement fund are made.
How much additional comp time will be granted to employees who did not receive their full payment because of OT cap limitations?
Employees who came within $500 of the cap in fewer than 4 of the 5 years from FY 11-15 will receive comp time equivalent in value to the amount of their individual payment that was precluded by the cap up to an additional 24 hours. Employees who did not receive the full amount and who came within $500 of the cap in 4 of the 5 years will receive up to 40 additional hours. And employees who did not receive their full amount and came within $500 of the cap in all 5 years will receive up to 84 additional hours.
The additional comp time will be calculated using the COPRA OT hourly rate, or twice the employee’s regular hourly rate.
Example: A covered individual is due $5,000 in back overtime pay under the settlement distribution formula. That individual earned $34,500 in each year between FY11 and FY15, leaving aggregate cap room in the amount of $2,500. Because the individual came within $500 of the cap in all 5 years and cannot receive the full payment of $5,000, the individual will receive up to an additional 84 hours of comp time.
To calculate the amount of additional comp time, the $2,500 difference between the amount due under the formula ($5,000) and amount payable under the cap ($2,500) would be divided by twice the employee’s hourly pay rate (the COPRA hourly overtime rate) to arrive at the additional comp time due the employee. Assume the employee’s hourly rate is $40. $2,500 divided by $80 (twice the hourly rate) is 31.25. The employee will receive 31.25 comp hours in addition to the 16 hours granted to all covered employees under paragraph 7a of the settlement agreement.
When must those who receive additional comp time due to OT cap limitations use the additional comp time?
Employees granted additional comp time because of OT cap limitations must use the comp time within 26 pay periods of when the additional comp time is granted. Under the agreement, the additional comp time must be used before before using sick or annual leave until the comp time is exhausted. If CBP does not approve the use of the additional time within 26 pay periods of when it is granted, it will be cashed out at the COPRA double-time rate.
For those planning to retire within the next year, unused comp time will only be cashed out earlier if CBP refused to approve its use after it has been granted. If you will receive additional comp time due to OT cap limitations and you intend to retire within the next year, you may wish to consider delaying your retirement until the comp time has been credited to your account and you have used it or your request to use it has been denied.
Who will perform the distribution calculations and distribute the funds?
A firm, Brown/Greer (BG) in Richmond, Virginia, has been retained to serve as the settlement administrator (SA) to perform these functions. BG specializes in this type of work. The SA will communicate with individuals covered by the settlement and will resolve any disputes about payment amounts.
Is the settlement administrator being paid out of the settlement funds?
No, CBP is paying the costs of the services provided by BG separately.
How much of the settlement fund will be paid to employees? What money comes out of the settlement fund?
CBP’s required employer contributions must be paid from the settlement fund. Deductions and withholding required of CBP, as the employer, are Medicare, FICA/Social Security, and retirement contributions. Retirement contributions are not required for OT earnings over $17,500 in a given year.
What money comes out of the employee’s cash distribution?
By law, income taxes, Social Security, Medicare, and retirement contributions must be withheld from employees’ payments. Again, no retirement contributions will be withheld if an employee already earned more than $17,500 in OT in a given year.
Details regarding deductions and withholdings will be itemized on your check stub. This information will also be reported on a form W-2 for calendar year 2017.
What about TSP contributions?
CBP’s mandatory contribution to employee TSP accounts, in an amount equal to 1% of settlement payments, will be taken from the settlement fund. No other employee contributions or agency matching contributions beyond those already made during the period covered by the settlement agreement will occur.
Will the back pay I receive affect my high 3 year average for purposes of calculating my retirement annuity?
Back OT pay received under the settlement will be credited to a covered individual’s OT earnings for each fiscal year from FY 11 through FY 15 that the individual occupied a covered position. If the individual earned less than $17,500 in any of those years, the back payment will count towards the individual’s base salary for retirement purposes, up to $17,500 in total OT earnings each year. Although back pay received under the settlement will be paid in FY 17, it will not count towards an individual’s FY 17 OT earnings for OT cap or retirement purposes.
When and how will my cash distribution be paid?
We anticipated that payments would be made beginning August 14, 2017. Unfortunately, after initial individual payments were calculated but before checks were mailed, systemic errors were discovered in the employment data provided by CBP to the settlement administrator. (Under the settlement agreement, NTEU does not see the employment data. CBP provides the data directly to the settlement administrator.) Because incorrect payments to groups of individuals necessarily affect the amounts due to others under a share-based distribution formula, NTEU directed the settlement administrator to halt the issuance of checks. NTEU is working with CBP and the settlement administrator to correct the data errors, after which individual payments will be recalculated. It is not clear, at this point, how long individual payments will be delayed. NTEU regrets the delay but believes that getting the payment amounts right is of paramount importance.
The monies set aside for the CBP Global Settlement are accumulating interest in a trust account. This interest, in addition to the principal, will be distributed to employees eligible to receive payments under the settlement. Thus, interest will not appear as a separate line item on your check, but you will receive the benefit of the interest accruing on the settlement funds.
If I received a payment under a national or local grievance that is included in the settlement, will I still receive a payment from the settlement fund?
Payments received pursuant to a grievance included in the settlement will be subtracted from payments made from the settlement fund. Check with your local chapter if you believe you may have received such a payment.
What can I do if I disagree with my payment amount?
The settlement agreement provides for an appeal process through which you are permitted to contest the correctness of certain factors that went into determining your award amount. These factors will be detailed in the letter accompanying your check and include (1) whether you occupied a covered BU position at any time in FY11, 12, 13, 14, or 15; (2) whether you occupied a covered BU position for at least six months in any fiscal year between FY03 and FY15; (3) whether you exceeded your overtime cap in FY11, 12, 13, 14, 15; (4) whether you already received a payment pursuant to covered national or local grievances. These are the only factors you are permitted to contest on appeal. The underlying terms of the agreement may not be contested through this process.
To lodge an appeal, you must contact the claims administrator at 1-844-378-6551 within 30 days of the date of your check.
If you wish to appeal, you must not cash your settlement check. Another check will be issued to you after your appeal is resolved.
What kinds of documents should I submit with my appeal?
Most helpful would be official documents, such as an SF-50, that can substantiate your claims with respect to the factors you dispute.
How will my appeal be resolved?
The settlement administrator will review claims by covered individuals who assert that the CBP-provided data upon which payment determinations were made was incorrect.
Why is the employer’s retirement contribution share included on my payment stub but not taken out of my total payment?
Just like the retirement contributions associated with your regular bi-weekly paycheck, the retirement contributions associated with your payment under the settlement include employee contributions—i.e., a percentage that you contribute from your pay—and employer contributions—i.e., a separate amount that the agency contributes to your retirement.
To make employer contributions for purposes of this settlement, the settlement administrator made preliminary calculations of all awards for each fiscal year 2011-2015 and calculated employer contributions based on these figures. Then, the settlement administrator subtracted the employer’s aggregate contributions from the total funds available for distribution in each fiscal year 2011-2015. Once sufficient funds to cover the employer’s mandatory contributions were set aside, the settlement administrator applied the distribution formula to the remaining funds to calculate individuals’ final award amounts. Thus, the employer’s retirement contribution was set aside prior to the calculation of your total payment and, unlike the employee contribution, was not withheld from the payment after-the-fact.
Are retirement contributions deducted before or after taxes?
Retirement and TSP contributions are deducted from your gross award amount before taxes.
Can the settlement administrator reissue my check in a different name?
The award check can only be issued to an individual who is covered under the settlement.
I received a check for a deceased employee. Can the settlement administrator reissue it in my name?
No. Deceased employees are not covered under the settlement.