Bilingual feds demand equal pay

A group of Hispanic Customs agents have filed a class-action lawsuit in a special federal court claiming that the government owes them money.

The special agents, who represent a class of more than 400 current and former bilingual Customs agents, contend the U.S. Customs Service -- and its successor agencies within the Department of Homeland Security (DHS) -- have denied them adequate compensation for their second-language abilities.

The Customs agents, who are fluent in English and Spanish, contend that they have been shortchanged on second-language pay awards despite the fact that their fellow agents in the FBI and DEA are afforded fair reimbursement for their bilingual skills. In addition, the special agents charge that other bilingual Customs employees, such as inspectors and canine enforcement officers, are reimbursed fairly for their second-language skills, yet the government has chosen to create extraordinary barriers for similar compensation to be earned by bilingual special agents.

From the lawsuit:

To be eligible for a foreign language proficiency award, Customs Officers (Customs inspectors and canine enforcement officers) need only speak a foreign language at least 10 percent of his/her basic non-overtime, regularly scheduled duty. In contrast to these simple rules, the rules for awarding foreign language proficiency awards to special agents were unduly burdensome and restrictive.

Special agents were required to meticulously document their daily usage of a foreign language using investigative case numbers, confidential informant (“CI”) identification numbers, duties and narrative report.   Special agents had to document, at least, 208 hours of official duty usage to be eligible for any level of award. No credit was given for partial hours and only hours from the basic workweek (i.e. 9 a.m. to 5 p.m.) counted.  

Overtime and weekend hours were excluded, even if the special agent was working undercover or another assignment which necessitated Spanish language use during those hours. These unduly restrictive rules had the effect of unlawfully reducing the amounts of foreign language proficiency awards paid to Hispanic special agents and discouraging them from subsequently applying for such awards.  

An internal Customs memorandum states that “a conservative estimate of the cost to pay LEOs (law enforcement officers or special agents) Foreign Language Proficiency Awards on a recurring basis, in FY 96 (fiscal year 1996) dollars, would be approximately $2M (million).”  

However, after these unduly restrictive rules were implemented, the Customs Service paid special agents only $211,266.00 in foreign language proficiency awards in 1998, the first year of such awards to special agents.

With the recent creation of DHS, special agents with the former U.S. Customs Service became part of the Bureau of Immigration and Customs Enforcement (ICE). Customs inspectors and canine enforcement officers now fall under the jurisdiction of DHS’ Bureau of Customs and Border Protection.

The language-pay litigation was filed by a group of three bilingual Hispanic agents on behalf of both current and former bilingual agents that Customs employed from 1996 through the present. The lawsuit is pending in the U.S. Court of Federal Claims, a special U.S. court that hears cases related to federal money claims, executive rules and government contracts –- actions that might include patent and copyright infringements, federal-contract bid protests, and civilian and military pay claims.

“Perhaps more than any other federal law enforcement agency, the U.S. Customs Service makes heavy use of Spanish-speaking Hispanic special agents along the Southwest Border, in foreign attaché offices, and in Puerto Rico,” the litigation asserts. “It is no exaggeration to state the Customs Service could not effectively function without its Spanish-speaking Hispanic special agents. Hispanic special agents bear a substantial majority of undercover, wiretap, translation and transcription assignments because of their Spanish language ability and knowledge of Hispanic culture.”

Stiffed

Regardless of the extra burden placed on bilingual agents because of their language skills, the agents assert in the lawsuit that the government has refused to recognize that contribution, or to even follow the law with respect to language-proficiency compensation.

More from the lawsuit:

... Customs instituted foreign language proficiency awards for the Customs Officers (non-agents) in 1996 and provided them with retroactive pay for such awards.      

Despite the clear importance of Spanish-language ability to its law enforcement mission, the Customs Service did not pay foreign language proficiency awards to law enforcement officers (special agents) until 1998. The authorizing statutes for foreign language proficiency awards … contemplated that Customs Officers would only receive such awards to the same extent as provided to law enforcement officers (special agents). The Custom Service unlawfully withheld foreign language proficiency awards from Special Agents while paying such awards to Customs Officers.

... This statutorily imposed mandate requires that Customs use the same set of rules for both Customs Officers and Customs law enforcement officers (special agents) in determining eligibility for foreign language proficiency awards. Yet, the Customs Service used different and more restrictive rules for awarding foreign language proficiency awards to Customs law enforcement officers (special agents) than those for Customs Officers. This too is a violation of the authorizing statutes and (the special agents) are entitled to have their foreign language proficiency awards calculated using the less restrictive standard.

... Special agents were ordered to redo their reports to eliminate any overtime hours that had been included in their reports on foreign language use. When they complained about the unreasonable restrictiveness of the policy, the Customs Service issued a memorandum in April 1998 claiming, “We cannot change the statute to allow overtime hours to be credited for reporting purposes.” This was patently false. The authorizing statutes ... do not forbid the crediting of overtime hours.

Synergy

The agents who brought the language-proficiency lawsuit are also part of class-action discrimination action currently pending in U.S. District Court in Washington, D.C. That litigation alleges that Customs and its successor DHS agency, ICE, has discriminated against Hispanic agents in training, assignments, compensation awards (including second-language pay), discipline and promotions.

Customs officials claim the District Court lawsuit is without merit and filed a motion for summary judgment in February of this year.

“The U.S. Customs Service is proud of its diverse workforce, which includes a significant number of Customs special agents of Hispanic ancestry,” the agency asserted in a prepared statement released at the time the class-action case was filed in the spring of 2002. “The allegations of this lawsuit, that Customs has discriminated against Hispanic Customs agents, are without merit and are not supported by statistical evidence.”

The judge in the D.C. case found against Customs in February and ruled that the agents should have their day in court with respect to most of their discrimination claims. As a result, the case is now proceeding toward a trial.

However, the judge also ruled that the agents failed to meet the legal threshold to proceed with their claim that they were inadequately compensated for their second-language skills. Essentially, without ruling on the merits of that claim, the judge threw it out on a legal technicality.

That led attorneys for the Hispanic agents to file the recent class-action case in the U.S. Court of Federal Claims. In addition to seeking monetary damages in the case, Customs agents are asking the court to prevent the government “from committing further violations of the law” with respect to language-proficiency pay for special agents.

“As a result of these violations of the statute, many Hispanic Special Agents received foreign language proficiency awards that were substantially less than what they should have received,” the agents assert in their lawsuit. “Many others became discouraged by these abusive and illegal requirements and did not apply even though they easily would have qualified for such awards.  

“Plaintiffs have been damaged financially by the Customs Service’s failure to provide foreign language proficiency awards as mandated by law. The exact amount (is) to be determined at trial.”