Good afternoon Chapter 141,
Please see the attached link with information about the Paid Parental Leave/Covid Leave/Sick Leave/AL grievance.
This is great news for our employees and we will be there to help with any questions. In short, the settlements will be paid in waves. The 1st wave will be EPL under the American Rescue Plan. The 2nd wave will be Paid Parental Leave and the 3rd will be those who took Leave on a shift differential shift on a Sunday from September 2015 until October 2019. Due to the approximately 30,000 employees covered by this settlement, they estimate this process to last 2-3 years.
Payments are scheduled to begin in November. Affected employees will be notified approximately 30 days before Payments are made.
Thank you all for being members.
NTEU-CBP Agreement on Night Differential for Paid Leave
Following victories in arbitration and at the FLRA, NTEU’s Office of General Counsel (OGC) has successfully negotiated an agreement with CBP to implement NTEU’s wins regarding the 8-Hour Rule and Sunday Leave Night Differential grievances. The comprehensive agreement covers roughly 30,000 employees and will result in more than $21 million in payouts.
NTEU Wins Over $21 Million in Back Pay; Most Will be Eligible
About 30,000 CBP employees may receive back pay after NTEU challenged the agency’s repeated failure to properly pay night differential to employees on leave.
The settlement is a major victory for employees who were wrongly underpaid over the years. Not only does the agency now have to pay what it owes, plus interest, it is forced to fix the mistake going forward.
NTEU started filing local and national grievances in 2021 because employees noticed their paychecks did not include the night differential if their paid leave covered night hours.
To learn more about the settlement, including who is eligible, what happens next and when the agency is expected to begin issuing back pay, read our FAQs below.
CBP is required to send out initial notices to eligible current and former employees within 30 days. Payment, including interest, will come in waves over three years as CBP works through the complex pay errors.
Holding agencies accountable when they deprive employees of hard-earned wages is one reason why federal employees choose to join a union, and NTEU has a long, proud history of fighting for and winning back pay.
Frequently Asked Questions
1. What is this agreement?
2. What was CBP’s reasoning for not paying night differential to employees who took leave during regularly scheduled night work?
3. What happens first under the agreement?
4. What if I don’t get an initial notice but I think I should have?
5.Who will receive back pay under the agreement?
6. I took leave for a reason related to the COVID-19 pandemic. Does that mean I’m covered by this agreement?
7. When I took PPL, management changed my schedule to a day shift so that they did not have to pay me night differential. Am I covered by this agreement?
8. When will I get my back pay?
9. How much back pay will I get?
10. What if I think CBP calculated my back pay incorrectly?
11. CBP still isn’t paying employees their night differential when they take paid leave. Why?
1. What is this agreement?
The agreement implements an arbitration victory in one national grievance, settles a related national grievance, and resolves other local grievances making similar allegations.
In July 2021, NTEU filed a national grievance alleging that CBP was violating the law by failing to pay night differential to employees covered under the Customs Officer Pay Reform Act (COPRA) when they take paid leave during regularly scheduled night hours. Further investigation after the grievance was filed found that CBP specifically was not paying night differential to employees on paid parental leave (PPL) or COVID-related emergency paid leave (EPL) under the American Rescue Plan Act. In August 2022, an arbitrator agreed with NTEU. The arbitrator ordered CBP to cease and desist from violating the law and to pay back pay to affected employees. The arbitrator’s award was placed on hold until, in February 2024, the Federal Labor Relations Authority (FLRA) affirmed it.
Although investigation related to the July 2021 grievance showed that CBP generally was paying night differential to employees who took annual leave, sick leave, court leave, or military leave, CBP was not paying night differential to employees who took any type of paid leave during regularly scheduled night work on Sundays. So, in September 2021, NTEU filed another national grievance, this time covering employees who took paid leave on Sunday nights. NTEU argued that although Congress has prohibited the payment of Sunday pay to employees on leave, nothing prevents the payment of night differential. Because this grievance, like the July 2021 grievance, involved the payment of night differential for paid leave, the parties agreed to hold the September grievance in abeyance, until the July grievance was resolved.
After the FLRA affirmed the arbitration award in the July 2021 grievance, NTEU and CBP negotiated an agreement to provide back pay to employees covered by the two grievances and end illegal denials of night differential for paid leave in the future. The agreement covers roughly 30,000 employees and will result in over $21 million in payouts.
2. What was CBP’s reasoning for not paying night differential to employees who took leave during regularly scheduled night work?
CBP cited the “eight-hour rule,” a provision of the Federal Employee Pay Act (FEPA) holding that employees who receive night differential under that Act are only entitled to such night differential when they take fewer than eight hours of leave in a pay period. As NTEU successfully argued to the arbitrator and the FLRA, however, the eight-hour rule in FEPA does not apply to the payment of night differential under COPRA.
3. What happens first under the agreement?
Within 30 days of the effective date of the agreement, CBP will send all employees who are covered by the agreement an initial notice advising them that they may be entitled to back pay for unpaid night differential. CBP will send this notice to current employees via email and will mail the notice to former employees at the last home address that CBP has on file for them.
4. What if I don’t get an initial notice but I think I should have?
If you didn’t get a notice but think you should have, you should request a Notice and Claim form, which you can use to submit a claim that you meet the criteria for coverage under the agreement (see answer to #5 below). To request a Notice and Claim form, you may contact CBP’s Payroll Branch at Payroll‑settlementnotificati@cbp.dhs.gov, or NTEU Deputy General Counsel Paras Shah at paras.shah@nteu.org, and NTEU Assistant Counsel Rosamond Kopczynski at rosamond.kopczynski@nteu.org. These requests will only be considered within 180 days after the initial notices are sent, so be sure to contact CBP or NTEU promptly.
5. Who will receive back pay under the agreement?
Current and former employees covered under COPRA, including CBP Officers and Agriculture Specialists, are entitled to back pay under the agreement if they took paid leave under one of the circumstances described below and did not receive the night differential pay that they would have received if they were working:
Took emergency paid leave (EPL) under Section 4001 of the American Rescue Plan Act during regularly scheduled night work;
Took paid parental leave (PPL) since October 1, 2020, during regularly scheduled night work; or
Took annual leave, sick leave, court leave, military leave, EPL, or PPL during regularly scheduled night work on a Sunday, anytime since September 24, 2015.
6. I took leave for a reason related to the COVID-19 pandemic. Does that mean I’m covered by this agreement?
The agreement covers a specific type of COVID-related leave: emergency paid leave (EPL) under Section 4001 of the American Rescue Plan Act. This was a type of leave that was available between March 11, 2021, and September 30, 2021, to employees unable to work because they were—
(1) subject to a Federal, State, or local quarantine or isolation order related to COVID–19;
(2) advised by a health care provider to self-quarantine due to concerns related to COVID–19;
(3) caring for an individual who is subject to such an order or has been so advised;
(4) experiencing symptoms of COVID–19 and seeking a medical diagnosis;
(5) caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, if the school of such son or daughter requires or makes optional a virtual learning instruction model or requires or makes optional a hybrid of in-person and virtual learning instruction models, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions;
(6) experiencing any other substantially similar condition;
(7) caring for a family member with a mental or physical disability or who is 55 years of age or older and incapable of self-care, without regard to whether another individual other than the employee is available to care for such family member, if the place of care for such family member is closed or the direct care provider is unavailable due to COVID–19; or
(8) obtaining immunization related to COVID–19 or is recovering from any injury, disability, illness, or condition related to such immunization.
Use of this leave was limited to an amount that would result in no more than $2,800 in a pay period and amount to no more than 600 hours total for fulltime employees.
7.When I took PPL, management changed my schedule to a day shift so that they did not have to pay me night differential. Am I covered by this agreement?
Yes, you are covered by this agreement and entitled to back pay for unpaid night differential even if CBP changed your schedule to a day shift while you were on leave.
8. When will I get my back pay?
Because the agreement covers so many employees—roughly 30,000—payments will be issued in waves over a period of approximately three years. You will receive interest on your payment to account for the delay.
CBP will start with the employees who took EPL. Because this is the smallest group of covered employees, CBP will be able to calculate and distribute their payments the fastest.
The second wave of payments will issue to employees who took PPL. Because this group is larger, CBP will distribute payments to these employees according to the fiscal year when they took PPL. CBP will start with FY2021 and proceed to later fiscal years from there.
The third wave of payments will issue to employees who took any type of paid leave during regularly scheduled night work on a Sunday. Again, CBP will issue payments according to the fiscal year when the leave was taken. CBP will start with FY2020 and then proceed through later fiscal years. Last, CBP will issue payments to employees who took paid leave during regularly scheduled night work on a Sunday from September 24, 2015, through the end of FY2019.
Current employees will receive their payments via direct deposit. Former employees will receive a check mailed to the last home address that CBP has on file for them.
9. How much back pay will I get?
You will receive the difference between (1) what you already were paid for the hours when you were on PPL, EPL, or other paid leave during regularly scheduled night work; and (2) what you would have been paid for those hours if you received night differential under COPRA. You will also receive interest on your payment.
10. What if I think CBP calculated my back pay incorrectly?
Shortly before payments issue, CBP will send you a Notice and Claim Form, which will include a spreadsheet showing the calculations for your back pay and an estimate of interest owed. Current employees will receive their Notice and Claim Form via email, while former employees will receive theirs in the mail to the last home address that CBP has on file for them.
If you believe that the calculation of your back pay is inaccurate, you may complete the Claim Form and submit it to the CBP Payroll Branch at the contact information provided on the form within 60 days. You must attach supporting documentation to support the claimed inaccuracy, including but not limited to earning and leave statements, leave requests, or a sworn written narrative. You must supply additional supporting documentation within 15 days of any request for such documentation from CBP.
CBP will provide a written determination granting or denying your claim within 90 days of receiving your claim form. If CBP denies your claim, it will provide an explanation for the denial.
Filing a claim will not delay payment to you of any undisputed amounts. And, if CBP grants your claim, it will ask its payroll provider to process the payment within 60 days.
If CBP denies your claim, you may ask NTEU to appeal the denial within 30 days of receiving CBP’s determination. If NTEU pursues the appeal, NTEU and CBP will attempt to resolve it through an informal process. If they are unable to resolve the appeal informally, NTEU may submit the matter to arbitration.
11. CBP still isn’t paying employees their night differential when they take paid leave. Why?
CBP is still working with its payroll agency, the USDA National Finance Center (NFC), to ensure that the Office of Field Operations’ (OFO) timekeeping system is coded to pay COPRA night differential to employees on paid leave. This process is proving more complex than anticipated. Employees who take paid leave now and in the future and who do not receive their night differential will receive back pay under this agreement, plus interest.
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