[Congressional Record Volume 140, Number 148 (Wednesday, November 30, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: November 30, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                    LAW ENFORCEMENT AVAILABILITY PAY

 Mr. DeConcini. Mr. President, in recent weeks I have been 
contacted by numerous Federal law enforcement associations as well as 
Federal law enforcement agencies expressing concerns about regulations 
proposed by the Office of Personnel Management on law enforcement 
availability pay [LEAP], enacted under section 633 of Public Law 103-
329, the fiscal year 1995 Treasury Appropriations Act. As the author of 
this provision, I believe some clarification is in order.
  I understand that OPM regulations which are currently being 
circulated are draft regulations which have not yet been finalized. I 
have been kept abreast of the formulation of these regulations by OPM 
and I commend the conscientious efforts to ensure that the regulations 
accurately reflect the intent of the Congress. Unfortunately, some 
agencies have prematurely issued their own regulations which neither 
reflect the OPM draft regulations nor the intent of Congress. As the 
author of section 633, I want to take this opportunity to express in 
clear terms the intent of the LEAP legislation.
  The LEAP legislation emerged from extensive and cooperative 
discussions and meetings with Federal agency representatives and law 
enforcement organizations. As such, the final LEAP legislation was 
intended to accomplish several objectives:
  First, establish a uniform system of compensation for the unique work 
conditions and excessive hours commonly required of a Federal criminal 
investigator, thus eliminating the varied and disparate compensation 
previously provided under administratively uncontrollable overtime or 
``AUO'' regulations
  Second, eliminate excessive administrative activity and paperwork 
associated with current overtime pay systems in order to achieve cost 
savings to Federal agencies while maximizing investigative time and 
efforts in the field.
  Third, guarantee and uniformly apply compensation which had been 
under constant review, revision, or consideration for reduction, thus 
providing a sense of financial security and consistency to those 
investigators who must frequently relocate themselves and their 
families as a condition of employment.
  Fourth, eliminate other costly forms of compensation [FLSA] which had 
been provided in addition to ``AUO'', thus providing significant 
savings to agencies and departments during times of fiscal restraint.
  Fifth, ensure that supervisors are managing their personnel and 
evaluating performance rather than merely counting hours.
  Section 633 makes clear that all 1811 series criminal investigators 
``shall be paid'' except in those cases where both the agency and 
employee mutually agree that conditions for compensation will not be 
met and, therefore, not provided.
  Perhaps the areas of greatest concern are the interpretation of the 
term ``available,'' the conditions under which the compensation may be 
terminated, and the formula to be applied for scheduled overtime 
compensation.
  The term ``available'' was included in LEAP with several goals in 
mind. It ensures that, in the process of career development, a criminal 
investigator would not be penalized for accepting an administrative 
assignment in positions such as headquarters or training. These 
positions may have precluded the investigator from qualifying for 
premium pay under the AUO guidelines of irregular, uncontrollable hours 
or may not have afforded the investigator the opportunity to routinely 
work the substantial unscheduled duty hours consistently required in 
the field.
  The availability condition also serves to protect a criminal 
investigator from intentionally being precluded from assignments, 
cases, or activities, by a supervisor solely to disqualify the 
investigator from receiving the premium pay. An agent who is performing 
satisfactorily, routinely recognizes and works unscheduled duty, and 
has regularly demonstrated a willingness and availability to work 
unscheduled duty should receive this premium pay.
  It is also important to note those conditions which were not intended 
to serve as criteria for availability status. Availability hours are 
not defined as, all off duty hours during which an investigator is 
reachable or accessible by telephone, radio, or pager. Certainly, in 
those circumstances when an investigator is a duty agent and personal 
activities are restricted, accrual of some unscheduled duty hours 
should be recognized by an agency. Additionally, a reasonable 
application of availability hours should be considered on regular work 
days during which an employee has consistently demonstrated a 
willingness and readiness to perform duties.
  Federal law enforcement agencies and associations have long 
maintained and supported through statistics that the vast majority of 
criminal investigators have always worked unscheduled duty hours far in 
excess of those previously required under AUO. With the exclusion of 
required unscheduled duty hours for annual leave, sick leave, training, 
and other approved status, the required hours necessary for 
compensation are now significantly diminished. I, therefore, believe 
that the vast majority of criminal investigators will continue to work 
any additional hours necessary to successfully complete their mission.
  As stated in the Senate committee report accompanying H.R. 4539, LEAP 
does not provide license for an investigator to refuse legitimate 
unscheduled duty assignments or assume that availability may, solely at 
the investigator's discretion, replace work, when in fact the agent has 
assigned duties or cases. Nor should an investigator refuse extra duty 
hours because the investigator has already met any minimum number of 
hours for compensation solely through an investigator's claim to be 
available.

  The manager should also exercise some responsibility and common 
sense. Investigators should not be directed to report prior to, nor 
remain on duty after a regular work day for the sole purpose of 
ensuring that a 2-hour requirement for unscheduled duty is being met 
absent any other need for the investigator's presence. The 2-hour 
formula refers to an annual average and does not imply that each and 
every workday requires 2 hours of additional work by the criminal 
investigator.
  On the issue of termination of this premium pay, it was not the 
intent of the Congress to provide to management the right to 
arbitrarily remove the compensation from any individual or category of 
investigator without adverse action through the Merit System Protection 
Board. Termination of this compensation should result from an 
investigator's regular refusal or unwillingness to work unscheduled 
duty, poor performance and low productivity together with a deficiency 
in unscheduled duty hours. Again, common sense should apply. Managers 
should be well aware of the performance, attitude and efforts of their 
respective personnel and not base a denied ``certification'' solely on 
the accrual of hours.
  The scheduled overtime provision was absolutely not intended to 
provide agencies the authority to schedule 10 hour workdays to ensure 
that unscheduled LEAP hours are worked. The scheduled overtime 
provision has always been and continues to be a mechanism for 
additional compensation. It should be applied on those occasions when 
an agency intends to provide compensation in addition to LEAP. The 
number of hours for which scheduled overtime compensation is provided 
is determined by the respective agency. The 10-hour rule was intended 
as a reminder that LEAP hours should be provided during the course of 
that workday.
  LEAP has placed more responsibility on managers to manage their 
personnel and emphasizes performance in addition to required 
unscheduled duty hours. The investigators, too, have the responsibility 
of recognizing the need to work the necessary unscheduled hours and 
should not view this legislation as an opportunity to avoid assignments 
or inappropriately decrease their productivity.
  Perhaps, most importantly, common sense and good faith must be 
applied by both agency management and investigators. I have always 
viewed Federal criminal investigators as professionals and have long 
held that their mission will be carried out with due dedication and 
professionalism. I would hope that those managers and investigators who 
may represent the few exceptions do not drive agency regulations and 
requirements which are counter to the intent of the legislation.
  I urge agencies and investigators to work together cooperatively to 
implement this legislation which has been described by law enforcement 
agencies, associations and journalists as a ``win, win'' solution for 
everyone.

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