ICE, Directive: 1040.1a Administratively Uncontrollable Overtime Guidance

Qfflc f the Principal b ae SI U.S. Dper 300i2ttStr i.S§r a W i o,, D,C. 20536 IofHfowels*d S rfty 2 12014 Jul MEMORANDUM FOR: FROM: All U.S. Immigration and Customs Enforcement Supervisors Thomas S. Winkowsk4Lojt Ajijj Principal Deputy Assist t Secretary SUBJECT: Administratively Uncontrollable Overtime Guidance As a result of the often demanding and unpredictable nature of our work as a law enforcement agency. Congress provides certain law enforcement officers with an additional premium to the basic compensation package in the form of Administratively Uncontrollable Overtime (AUO). As stewards of public funds, it is every employee's responsibility to ensure that Agency funds are used in a manner that is consistent with law, regulation, and policy. The purpose of this guidance memorandum is to remind U.S. Immigration and Customs Enforcement (ICE) supervisors of their responsibility to review the accuracy of their subordinates" time and attendance records, specifically with regard to AUOO.

The administration of overtime compensation is a key management function and supervisors must understand and comply with the laws governing AGO. The objective of AUO is to compensate employees occupying positions in which the hours of duty cannot be controlled administratively and that require substantial amounts of irregular or occasional overtime work. Further, the employee is generally responsible liar recognizing circumstances that require him or her to remain on duty. The ICE Office of Human Capital (OH >) is responsible for determining whether a position qualifies for Al_JO, based on the duties and responsibilities found in the position description.

In order for a position to qualify for AUO, there must be circumstances requiring an employee to "temain on duty not merely because it is desirable, but became of compelling reasons inherently related to continuance of [the employee's] duties, and of such a nature that failure to carry on would constitute negligence," 5 C .F.R.. § 550.153(c)(2). The circumstances that require the employee to remain on duty must be such that the "employee has no choice as to when or where [the employee] may pe lbrm the work when he [or she] remains on duty in continuation of a full daily tour of duty." Id at 550.153(d)(2). Circumstances justifying authorization for AUO differ "from a situation in which an employee has the option of ta ng work home or doing it at the office; or doing it in continuation of his regular hours of duty or later in the evening.

" 5 C. °.R.. § 0. i 5 (d(2), The regulations also i provide that AUO is not justified where "an employee has such hi it €de in his working hours, as when in a travel status, that he may decide to begin work. later in the morning and continue working later at night to better accomplish a given objective." Id. REL0000021462 Administratively Uncontrollable Overtime Guidance Page Once a position is approved for AUO by OHC, supervisors are responsible for certifying AUO for individual employees, at the appropriate percentage rate, in addition, supervisors are responsible for continuing to monitor whether certified subordinates are actually performing duties that ustify AUO. 'There are certain types of circumstances that may justify the need for administratively uncontrollable" irregular or occasional overtime that AUO is intended to address. These circumstances include, but are not limited to: incident, such as a due to an unexpected facility Remaining on duty at a detention facility demonstration, hunger strike, riot, or escape; Responding to an electronic monitoring alert received outside of an offices scheduled tour of duty, where response is necessary to prevent an enforcement priority from absconding; Processing the release of an alien based on special criteria, such as health or humanitarian concerns, lack of bed space, or other Field Office Director-directed releases, Conducting interviews of aliens in various locations to determine alienage; Participating in surveillance activities, where the duty hours are dependent on the activities of the criminal subject; Transporting, installing, and monitoring surveillance equipment, including emergent repair of equipment during ongoing investigative activities; , Remaining on duty to process a bond for an alien's release from custody; Searching for an alien who has received a final order of deportation or exclusion and has failed to surrender, where the officer must shadow known associates outside of the regular tour of duty-', and Remaining on duty to adjudicate and submit a claim of U.S. citizenship within the mandatory 24-hour period, in order to minimize the subjects time in detention. a m r or occasional" overtime Although AUO is the exclusive method of payment for all irregula worked by employees certified for AUO, supervisors should ensure that employees claiming irregular or occasional overtime do so for the efficiency of the Agency, as opposed to the personal convenience of the employee or the purpose of accruing hours. Supervisors are responsible for reviewing Records of AUO and Overtime Hours Worked to confirm that justifications evidence irregular and occasional overtime that is consistent with the purposes of AUO.

This responsibility includes monitoring the justifications provided by. subordinate supervisors. AUO is not intended to address administrative or clerical duties that can easily be scheduled in advance of the administrative workweek or performed during a regular sue, clerical duties are completed during an employee's scheduled tour of duty whenever possible. and supervisors should work with employees to ensure that such administrative or Where it is not operationally necessary to perform a duty outside of the employee's regular tour of duty, and the duty can be perf n'med during the employee's next tour of duty, it cannot be used to justify AUO. Certain administrative or clerical duties can easily be scheduled in advance of the administrative workweek or performed during the employee's regular tour of duty. Examples of these duties include, but are not limited. to.

Participating in training, whether in person or virtually; Conducting training activities or preparing training materials; REL0000021462 Guidance Regarding Administratively Uncontrollable Overtime Page Preparing administrative or clerical documents, such as travel authorizations, Time and Attendance sheets, or Performance Work Plans; Completing paperwork with no urgent deadline; Taking a governmentowned vehicle in for regularly-scheduled maintenance; and Quarterly firearm qualification. Supervisors must reJect those AIJO records that contain insufficient justifications, and Will be held responsible if they approve records that are improper. Supervisors should not approve AUO justifications that fail to sufficiently describe the basis for the overtime (Len, like "File Review" or "Supervisory Detention and Deportation Officer duties"). Furthermore, supervisors are responsible for identifying employees who consistently provide justifications that appear administrative in nature or suggest a pattern of overtime performed for the purpose of accruing hours or for the benefit of the employee, rather than operational considerations.

In such instances, supervisors, in consultation with OHC, must assess whether decertification of that employee's AUO is necessary to remain consistent with law and regulation. vague descriptions The Office of Human Capital has issued the attached Premium Pay Guide, which provides detailed guidance on the different forms of premium pay, to include :AUO, As you may know, due to allegations of AUO abuse, the Department of HomelandSecurity's ALTO practices have been the subject of considerable internal and external scrutiny. Some of our existing M 10 policies and procedures are dated and were developed before the creation of the department. For these reasons, DHS and ICE are carefully reviewing all AUO practices to ensure compliance with the law, As these reviews continue, management will keep you apprised of developments, including any superseding guidance regarding U h I appreciate your continued efforts to ensure that ICE's compensalion practices are fair and. consistent: with the law. I am confident that together we can promote a culture of compliance that appropriately compensates employees for their hard work and diligence in protecting the homeland.

Encl. ICE Premium Pay Guide REL0000021462 ACKNOWLEDGMENT OF 1 ECEIPT Please sign this acknowledgment as evidence that you have received the cited memorandum. Your acknowledgement of receipt should be returned to the bearer of this notice. I acknowledge receipt of the Administratively Uncontrollable Overtime Guidance.

Employee's name: Employee's signature: Witness/Bearer"s signature: Date: Date: Date: REL0000021462