AUO POLICIES
Statutory
Title 5 USC, Part III, Subpart D, Chapter 55, Subchapter V, Premium Pay, Section 5545 (c)(2) indicates that the head of an agency, with the approval of the Office of Personnel Management, may provide that,
An employee in a position in which the hours of duty cannot be controlled administratively, and which requires substantial amounts of irregular, unscheduled overtime duty with the employee generally being responsible for recognizing, without supervision, circumstances which require the employee to remain on duty, shall receive premium pay for this duty on an annual basis instead of premium pay provided by other provisions of this subchapter, except for regularly scheduled overtime, night, and Sunday duty, and for holiday pay. Premium pay under this paragraph is an appropriate percentage, not less than 10 percent nor more than 25 percent, of the rate of basic pay for the position, as determined by taking into consideration the frequency and duration of irregular, unscheduled overtime duty required in the position.
Regulatory
5 CFR Sections 550.151 through 550.162 provides six issues about AUO:
1. Authorization of premium pay on an annual basis is based on Title 5.
2. Eligibility requirements or basis for determining positions for which AUO is authorized are: an average of at least 3 hours a week of irregular or occasional overtime work; continual requirement averaging more than once a week; and a definite basis that the work will continue over an appropriate period with duration and frequency to meet 3 hours a week, every week. Further, the circumstances involved must be a definite, official, and special requirement of the position.
3. Premium pay rates are based on: 10 percent of base pay if position requires an average of at least 3, but not more than 5, hours per week; 15 percent of base pay if position requires an average of at least 6, but not more than 7, hours per week; 20 percent of base pay if position requires an average of at least 8, but not more than 9, hours per week; and 25 percent of base pay if position requires an average of over 9 hours per week.
4. The head of each agency is responsible for determining which employees shall receive AUO and determining the number of hours of irregular or occasional overtime work to be customarily required in positions which require irregular or occasional overtime work; determining the rate of premium pay; and reviewing determinations, discontinuing payments or revising rates of premium pay on an annual basis when that action is necessary to meet the requirements of Section 5545(c).
5. Premium payment provisions begin on the date that the employee enters on duty in the position concerned for purposes of basic pay and ceases on the date that he/she ceases to be paid basic pay in the position. An agency may continue to pay AUO while the employee is on temporary assignment or assigned to a training program. AUO is allowed for 10 consecutive days on temporary assignment or 30 days in a calendar year and 60 days for approved training.
6. An employee receiving premium pay on an annual basis under Section 550.151 may not receive premium pay for irregular or occasional overtime work.
Department Policy
DOJ Order 1551.4A provides that employees in positions in which hours of duty cannot be controlled administratively by hiring additional personnel, rescheduling the hours of duty, or granting compensatory time are eligible for AUO. The criteria and rates of premium pay are the same as established in 5 CFR. The Order lists eligible positions as airplane pilot, border patrol agent, criminal investigator [ Eliminated in 1994.] , general investigator, officer-in-charge in a domestic office who is engaged in investigative duties, and an immigration officer in a foreign area. The Order provides general guidelines in determining whether or not the particular duty qualifies under AUO. Examples include surveillance, shadowing, undercover, meeting informants, guarding prisoners or detaining witnesses. Supervisors within these similar activities also qualify for AUO.
The Order prescribes that responsibilities to determine eligibility and payment of AUO rests with each bureau head. This includes determining which employees in authorized positions shall receive AUO, determining the number of AUO hours and reimbursement rates, ensuring that AUO is kept to the minimum essential to accomplish the mission of the bureau, and providing written instructions on AUO.
INS Policy
In October 1992 the INS Commissioner established guidance to clarify INS policy on AUO. The following criteria and conditions govern the designation of positions for AUO coverage. The work:
• cannot be completed the next day;
• cannot be taken home;
• schedule cannot be adjusted;
• is not administrative in nature;
• cannot be accomplished by another employee;
• requirement is definite, official, and special;
• requirement is at least 3 hours;
• requirement is more than once a week; and
• requirement continues frequently.
The policy in INS does not specify the types of documentation required to support AUO except for time and attendance records. The key is that if time and attendance records are certified for payment by the supervisor, then AUO will be paid.
INS procedures for AUO are set forth in Section 2979 of the INS Administrative Manual dated November 30, 1989. Supervisors are responsible for assuring that payment of AUO is discontinued promptly when employees cease to be eligible. For computation purposes, weekly averages of eligibility and rate determination are computed by totaling the number of AUO hours worked during the computation period preceding the eligibility period and dividing the total hours by 120 days (24 weeks or 12 pay periods) and multiplying the result by 5. The computation period establishes AUO pay percentage for an "eligibility period," which is defined as a span of time covering 4 pay periods during which the employee is eligible for AUO at a given percentage. The Time and Attendance Form, DOJ 296, is the source of the information on the number of AUO hours worked and excludable AUO days accumulated during the pay period. Premium pay on an annual basis may be 10, 15, 20 or 25 percent based on the average number of AUO hours worked during the week.
Certifications of eligibility identify employees in authorized positions who are eligible to be paid AUO. Supervisors certify employees, and district directors or chief patrol agents approve certifications, which must be received at the required personnel office no later than the second workday of the first pay period covered by the certification.
RESULTS OF PRE-SITE WORK SURVEY
| INS Office |
"Yes" or "No" by Question (See Legend Below) | |||||||||
| a | b | c | d | e | f | g | h | i | ||
| Headquarters | Y | N | Y | N | Y | Y | Y | Y | Y | |
| Regions | ||||||||||
| Eastern | Y | N | Y | N | Y | Y | Y | Y | Y | |
| Central | Y | N | Y | N | Y | Y | Y | Y | N | |
| Western | Y | Y | Y | N | Y | Y | Y | Y | Y | |
| Districts | ||||||||||
| Boston, MA | Y | N | Y | Y | Y | Y | Y | Y | Y | |
| Miami, FL | Y | N | Y | Y | N | N | Y | N | N | |
| Seattle, WA | Y | N | Y | Y | Y | Y | Y | N | N | |
| San Diego, CA | Y | N | Y | Y | Y | Y | Y | Y | Y | |
| El Paso, TX | Y | N | Y | Y | Y | Y | Y | Y | Y | |
| Kansas City, KS | Y | N | Y | Y | Y | Y | Y | N | N | |
| Denver, CO | Y | N | Y | N | Y | Y | Y | Y | Y | |
| New York City, NY | Y | N | Y | Y | Y | Y | Y | N | N | |
| Newark, NJ | Y | N | Y | Y | Y | Y | Y | Y | Y | |
| Sectors | ||||||||||
| Houlton, ME | Y | N | Y | N | Y | Y | Y | Y | Y | |
| New Orleans, LA | Y | N | Y | N | Y | Y | Y | Y | Y | |
| Blaine, WA | Y | N | Y | N | Y | Y | Y | N | N | |
| San Diego, CA | Y | N | Y | N | Y | Y | Y | Y | Y | |
| Tucson, AZ | Y | Y | Y | Y | Y | Y | Y | Y | N | |
| El Paso, TX | Y | N | Y | Y | Y | Y | Y | Y | N | |
| McAllen, TX | Y | N | Y | N | Y | Y | Y | Y | Y | |
| Totals | ||||||||||
| "Yes" | 20 | 2 | 20 | 10 | 19 | 19 | 20 | 15 | 12 | |
| "No" | 0 | 18 | 0 | 10 | 1 | 1 | 0 | 5 | 8 | |
| Legend for Inquiries made to INS Offices | |
| a. | Do policies & procedures exist? |
| b. | Are they unique to the field office? |
| c. | Did use of AUO have a purpose? |
| d. | Was training provided? |
| e. | Is a record maintained of who is eligible? |
| f. | Is a record maintained of who is certified for payment? |
| g. | Were officials designated to be responsible for authorizing, approving, and monitoring AUO? |
| h. | Is a log or record of AUO maintained? |
| i. | Are AUO work descriptions documented for each occurrence? |
INS EFFORTS TO CORRECT PRIOR WEAKNESSES IN AUO USE
As a result of the INS Human Resources Branch 1995 review of AUO practices at the Florence, Arizona Service Processing Center, INS embarked in a process of reviewing and improving its practices regarding the use of AUO under the provisions of 5 U.S.C. Section 5545(c)(2). INS initiated several actions to address its use of AUO.
AUO Review Board
The INS Commissioner established an AUO Review Board in 1995 to review AUO hours worked at the INS Headquarters. The Board is comprised of two program specialists, an attorney, and a compensation specialist. The review board was tasked to interview all supervisors of Headquarters employees who earn AUO. The board developed a questionnaire and have interviewed 13 supervisors of employees who were earning AUO. The board will report its findings to the INS Executive Resources Board who will determine what action should be taken based on the findings.
Training
The Office of Human Resources and Development and the Office of Field Operations sent representatives to 14 district offices, 9 service processing centers, and 4 facilities from July 22 through September 27, 1996. Phase I of training was scheduled for those district offices and service processing centers in proximity to each other. The representatives trained a total of 435 managers, union representatives, supervisory and non-supervisory employees in Detention and Deportation, Inspections, Investigations, and Administration programs. Phase II of AUO training was scheduled for FY 1997 for Border Patrol Sectors. No training was conducted at Headquarters.
The Office of Field Operations required that subsequent to receiving training each office complete an assessment to determine the appropriateness of the overtime hours charged to AUO and recommend to HQ the appropriate compensation for the overtime work performed at the site. This assessment was to include requests for additional funds for scheduled overtime to replace overtime hours compensated under AUO. All offices submitted the reports as required. Following is a list of the offices receiving the training and the dates of the training.
| Location | Training Completed |
| Phoenix | 07/23/96 |
| San Diego | 07/25/96 |
| Los Angeles | 07/29/96 |
| El Paso | 07/31/96 |
| Harlingen | 08/01/96 |
| New Orleans | 08/02/96 |
| Miami | 08/06/96 |
| San Juan | 08/08/96 |
| New York | 09/15/96 |
| Boston | 09/16/96 |
| Newark | 09/18/96 |
| Chicago | 09/23/96 |
| San Francisco | 09/25/96 |
| Houston | 09/27/96 |
Contract Studies on AUO
In an effort to maximize the efficient and cost-effective use of all forms of compensation within INS, the Office of Human Resources and Development has contracted with a firm experienced in the compensation field. The contractor plans to assist the INS in analyzing the compensation systems administered by the INS, with the objectives of streamlining and simplifying premium pay, such as AUO, for INS employees and improving the administration of pay within the INS. A written report will detail the findings and conclusions and be submitted to INS by early 1997. A final report is to be delivered to INS 10 days after comments are received.
INS Office of Internal Audit
The Office of Internal Audit is charged with responsibility for overseeing that AUO is properly administered throughout INS. According to INS officials, the Office of Internal Audit has initiated the INSpect Program, which will include reviews of field office operations, including AUO.
AUO Record of Hours Worked
In June 1996 the Office of Human Resources and Development prepared a standard format for recording AUO hours worked since HQ, the districts, and sectors use various types of records for recording AUO hours. The format was put on hold as INS had to negotiate this form with union representatives if the form was to be implemented throughout INS.
REVIEW OF EARNED PERCENTAGES
Once employees were certified to be eligible to receive AUO, INS policy and procedures provided for continual review of each employee's AUO reimbursement percentage through the regular biweekly payroll process. These reviews of AUO computations provided the basis for continuing eligibility and percentage of AUO time authorized in future periods. To review this process, we selected one pay period per quarter in FY 1996: pay period 25 in Calendar Year 1995; and pay periods 3, 12 and 18 in Calendar Year 1996. We compared the AUO hours actually worked against total hours to compute the actual paid AUO percentage.
From each selected pay period for each employee we reviewed and compared the total number of hours worked and documented on the time and attendance worksheet by the employee with the number of hours entered into the time and attendance payroll system by the time and attendance clerk. We compared the AUO percentages with the certificates of eligibility (if available) or payroll printouts. The following table provides the frequency of AUO percentages earned for the four pay periods we reviewed.
AUO Percentages By Number of Employees for All Offices Reviewed
| AUO Percentages |
Pay Period | Average | Ratio to Total |
|||
| 25 | 3 | 12 | 18 | |||
| Number of Individuals | ||||||
| Unknown | 37 | 28 | 21 | 12 | 25 | 12% |
| 10 | 6 | 2 | 4 | 3 | 4 | 2% |
| 15 | 2 | 4 | 3 | 11 | 5 | 2% |
| 20 | 15 | 15 | 22 | 14 | 17 | 9% |
| 25 | 142 | 153 | 152 | 162 | 152 | 75% |
| Totals | 202 | 202 | 202 | 202 | 202 | 100% |
INS used payroll data to perform ongoing updates of employees eligibility percentages. The AUO computations consisted of a determination of the average AUO hours used over a predetermined, standard block of 12 pay periods, which established the effective percentage of AUO that the employee would be eligible for during the 4 pay periods starting with the fourth pay period after the computation period. A record of AUO hours, known as the Summary of Administratively Uncontrollable Overtime (Form G-622) or AUO Computation Record, is maintained at INS Headquarters, regions, districts, and Border Patrol sector offices and sub-offices. The AUO record is prepared either by computer program or manually. It consists of (1) the name of the employee, (2) the computation period, (3) the number of excludable days, (4) the number of AUO hours worked per pay period by the employee, (5) the average number of weekly AUO hours over 12 pay periods, (6) the current AUO premium pay percentage, and (7) the revised AUO premium pay percentage for the four pay periods (effective period) starting the fourth pay period from the last pay period of the computation period.
The computation period is the uniform period of overtime experience which serves as the principal basis for determining an employee's continuing eligibility for and rate of premium pay. Each computation period consists of 12 pay periods ending 3 pay periods before the eligibility period for which the determination is made.
An eligibility period is the uniform period of time during which an employee, if determined to be eligible, shall be compensated for AUO at the rate for which he was certified eligible until a subsequent determination is made when weekly averages are computed at the end of every four pay periods.
Weekly averages are computed by totaling all AUO hours during the computation period, and dividing the total by the base workday figure of 120 (12 {pay periods} x 10 {workdays}) and multiplying the result by 5 (average AUO hours per week). The base workday figure of 120 will be adjusted downward in units of a full day for excludable days which include paid leave, holidays, leave without pay, temporary assignments of more than 10 consecutive days, or training periods when AUO was not performed.
The employee's AUO "entitlement" for the effective four pay periods is determined in a formula fashion. If the 1-week average is:
| •less than 3 hours | Ineligible |
| •at least 3, but not over 5 | 10 % |
| •over 5, but not over 7 | 15 % |
| •over 7, but not over 9 | 20 % |
| •over 9 | 25 % |
SCHEDULE OF DOLLAR-RELATED FINDINGS
| QUESTIONED COSTS | AMOUNT | PAGE |
| Lack of Support for Uncontrollable Overtime Hours | $1,524,497 | 9 |
QUESTIONED COSTS are defined as expenses incurred that do not comply with law or other official requirements, or are unsupported by adequate documentation, or are unnecessary or unreasonable for the intended purpose. They can be recoverable or non-recoverable.
Memorandum
Subject DRAFT AUDIT REPORT Date
Use of Administratively Uncontrollable JAN-9-1997
Overtime in the Department of Justice
To Doris Meissner From Office of Management
Commissioner
Following are comments and responses to the findings and recommendations contained in the subject Office of Inspector General (OIG) draft audit report on the use of Administratively Uncontrollable Overtime (AUO) in the Department of Justice. We agree with the OIG's findings that the Immigration and Naturalization Service (INS) can and should do a better job of educating supervisors and employees concerning AUO policies and requirements, and that INS needs to develop and implement a policy to ensure that more specific and complete records are being kept on AUO usage. The Service has initiated actions that address the training issue, and will establish a policy regarding more complete documentation of AUO hours.
Consistent with the statute, INS has elected to authorize AUO on an' annual basis, in lieu of having to cope with recurring hourly overtime authorizations. This is an efficient way of dealing with the situations within the agency that require employees to work a substantial amount of irregular or occasional overtime per week on a continual basis. The work by its very nature involves overtime and, while it can be anticipated that overtime will be worked, its exact schedule and circumstances typically cannot be ascertained beforehand, nor readily predicted, or regulated. Accordingly, INS has in the past determined that such hours cannot be controlled administratively by the agency, e.g., by hiring additional pers9nnel, rescheduling the hours of duty, or using compensatory time.
Determining the appropriateness of AUO or other overtime compensation is critical to the mission of the agency. Considering the "round-the-clock" law enforcement nature of the agency's work, a lack of flexibility can hamper operations and the accomplishment of priorities and other major objectives. This is also a vital employee equity issue among Federal law enforcement agencies, and can significantly impact agency recruitment and employee retention goals.
FINDING I: POLICIES. EXTENT AND COSTS OF AUO
INS policies agreed with established statutory, regulatory and Department policies regarding AUO. In FY 1996 INS spent $57 million on AUO. Sixteen percent of this amount was earned by employees in grades GS-1 3 and above who represented less than 1 0 percent of the individuals receiving AUO. The group accounted for the highest per capita amount of AUO, thus reducing the amount available for employees in lower grades who perform operational field duty. Accordingly, INS should re-evaluate its AUO policy to determine if AUO should continue to be offered to employees in upper grades, and to what extent. in order to maximize AUO at the field employee level.
INS POSITION: Concur in part.
The INS agrees that for FY 1996 the Service spent $57 million in AUO, that 16 percent of the amount was earned by employees in grades GS-1 3 and above, and that this group accounted for the highest per capita amount of AUO. However, the finding that the payment of AUO to this group of employees reduced or reduces the amount available for lower-graded employees is incorrect. The FY 1996 INS appropriation contained sufficient funding for the payment of AUO to all employees eligible to earn AUO and the FY 1997 appropriation is similarly funded. No eligible employee has been excluded from earning AUO because of the payment of AUO to employees in grades GS-13 and above.
RECOMMENDATION 1: Re-evaluate INS AUO policy in order to determine whether employees in upper grades should remain eligible for AUO.
INS RESPONSE: Concur.
The INS initiated, in early 1996, a review of the administration of AUO throughout the Service, not just a reevaluation of the payment of AUO to upper-graded employees. Throughout the summer of 1996 the Service conducted training at 23 District Offices and Service Processing Centers in the appropriate use of AUO. Training at INS Border Patrol Sectors will commence in February 1997, with a scheduled completion date of August 1997. Where training has been conducted, Regional assessments have been completed evaluating whether the overtime work is being charged to the appropriate account. Final review of the Regional assessments is currently pending in the Office of Field Operations. Similar sequential reviews will be conducted for Border Patrol Sectors. A Headquarters INS AUO Review Board has, this week, forwarded its findings to the lNS Executive Resources Board. The Board has these findings under review. Additionally, the Office of Internal Audit incorporated the review of AUO administration into the Service's expanded internal review process of field offices, known as INSpect (INS Program for Excellence and Comprehensive Tracking). Lastly, in an effort to improve the efficiency and cost-effectiveness of all forms of compensation within INS, the Service is conducting a comprehensive review of compensation practices and policies through the efforts of an outside consulting firm. The results of the study conducted by the consulting firm will assist INS in analyzing its compensation system with the objectives of improving the management of all forms of pay within the INS and streamlining and simplifying premium pay, such as AUO, for INS employees.
FINDING II: ELIGIBILITY CRITERIA AND PAYMENT OF AUO
INS could not demonstrate that AUO was used to compensate employees for unscheduled, uncontrollable overtime. INS did not require, or develop procedures for offices to document actual hours of daily AUO against qualifying tasks. As a result, for 95 percent of the employees sampled, we found either no documentation or insufficient documentation to substantiate that overtime worked was uncontrollable, as defined in INS guidance. Further, 36 percent of the employees we sampled did not have AUO eligibility certificates on file although INS policy provided for such. Compounding this weakness, supervisors did not assess the actual duties of the employees to determine if, for each employee supervised, the overtime was uncontrollable. As a result, the Department has no assurance that INS incurred AUO only for uncontrollable events.
INS POSITION: Concur with comments.
The INS agrees with this finding. However, the criteria specified in Appendix I of the report is an abbreviation of the INS policy and does not completely reflect the policy contents and requirements.
RECOMMENDATION 2: Design and implement a review process to ensure that office heads maintain certificates of eligibility at the duty locations for all employees who receive AUO, and that re-certifications are completed each year.
INS RESPONSE: Concur.
The 1992 INS overtime policy requires that AUO certifications be maintained on file with the Administrative Officer or equivalent at the District and Sector levels. Subsequent guidance also instructed that a copy be maintained with each employee's time and attendance records. The 1992 policy also requires that certifications are to be updated at the beginning of each fiscal year, i.e., employees are to be re-certified at the beginning of each fiscal year. The INS will reiterate the current policy in a memorandum to all field and Headquarters managers and supervisors within 45 days. INS has not, until this year, had an internal capacity to review field offices for compliance with procedures. The INSpect system, designed and piloted last year, will provide for annual self-assessment and a cyclical review of operational compliance with procedures in offices. Review of field offices' administration of AUO, including the certification process, has been incorporated into INSpect, as stated above in response to recommendation 1.
RECOMMENDATION 3: Establish and implement procedures to ensure that employees earn AUO only for uncontrollable overtime.
INS RESPONSE: Concur.
INS will establish and implement, after satisfying collective bargaining obligations, a policy and related procedures to ensure that there is complete documentation of the use of AUO. This will include, if necessary, taking steps to develop and issue a form for the use of employees Servicewide who have been certified for AUO, fostering a greater consistency in the reporting of AUO hours.
RECOMMENDATION 4: Require office heads to ensure that supervisors approve time and attendance, and time and effort reports of employees under their supervision.
INS RESPONSE: Concur.
Current INS policy provides that supervisors have knowledge of an employee's performance and attendance and that they are responsible for ensuring that employee time and attendance records are properly completed and accurate. The INS will reiterate this policy in a memorandum to all field and Headquarters managers and supervisors within 45 days and will require that supervisors sign all time and attendance reports and, where applicable, time and effort reports.
If your staff would like to discuss this further or needs clarification on any of the responses provided above, please contact Margaret Aira at 514-0898 or Michael Sheehan at 514-3182.
OFFICE OF THE INSPECTOR GENERAL, AUDIT DIVISION
ANALYSIS AND SUMMARY OF ACTIONS NECESSARY TO CLOSE REPORT
The INS response to the audit (APPENDIX VI) included actions INS intended to take to close the audit recommendations. The following statements are based on our analysis of their responses.
1. Resolved. Please provide us with the results of the Office of Field Operations review of the regional assessments completed by the offices trained to date, the results of the planned assessments by the Border Patrol sectors, and the results of the study of compensation being performed by the outside consulting firm as they pertain to the INS assessment of the extent of AUO for upper grades.
2. Resolved. Please provide us with a copy of the certification policy memorandum that you provide to all field and Headquarters managers and supervisors. Further, advise us when the INSpect system is implemented in INS.
3. Resolved. Subsequent to satisfying the collective bargaining obligations, provide us with the policy and procedures adopted to ensure that employees earn AUO only for uncontrollable overtime.
4. Resolved. Please provide us with a copy of the time and attendance/effort policy enforcement memorandum that you provide to all field and Headquarters managers and supervisors.
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