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Judge: Air Marshals Stiffed on Overtime

For more on air marshals, go to Air Marshals Undercover and Under Arrest. (Credit: Robyn Beck/AFP/Getty Images)Federal air marshals have been unlawfully denied overtime, and as a result the U.S. government could be liable for millions of dollars in back pay, according to a court opinion (PDF) unsealed this week in Washington, D.C.

The lawsuit, filed in 2006, involves 1,805 air marshals who said they haven’t been fully compensated for flight delays, time for writing reports and off-duty fitness and firearms training needed to pass quarterly tests. The judge’s opinion cited a 2004 study by the Air Marshal Service which showed that agents in the Chicago field office averaged about 10.5 hours a day.

Justice Department attorneys, defending the government, argued that air marshals weren’t entitled to overtime pay because they already receive a 25-percent salary bonus intended to compensate law enforcement officers for always being on call.

Officials at the Justice Department and Air Marshal Service declined comment because the case is pending, with both sides arguing about potential damages. The attorney for the air marshals, Stephen Seliger, said damages could reach upwards of $50 million.

Air marshals have long complained about work conditions, which they say put tremendous strain on personal lives. The hours are exacerbated by inconsistent scheduling that might have an air marshal starting work one day at 5 a.m. and the next at 6 p.m. for a red-eye flight overseas, said Frank Terreri, a Los Angeles air marshal and an acting vice president for the Federal Law Enforcement Officers Association, which provides legal help and legislative support for 25,000 federal agents.

The association is not a party to the lawsuit.

“There’s more problems with families in the Federal Air Marshal Service than with any other agency I’ve seen,” Terreri said. “You can’t plan to see your son play baseball or your daughter or anything like that unless you take annual leave. You don’t have regular days off.”

Greg Alter, a spokesman for the Air Marshal Service, said agents fly an average of 15 days per month and spend about five hours a day in a plane. Base salaries range from $37,683 to $86,857.

In the opinion issued Nov. 5, Judge Bohdan Futey of the U.S. Court of Federal Claims said that air marshals are entitled to overtime after 43 hours a week. The 25-percent “availability” pay, which air marshals and other law enforcement officers receive, is intended to compensate them up to 50 hours a week, the judge said. But the bonus is a flat rate, not the time-and-a-half required by the Fair Labor Standards Act.

The Justice Department can appeal, but even if it doesn’t, the case could drag on for years as attorneys debate what tasks constitute work and how many hours each air marshal served. A status hearing is scheduled for mid-December.

Last week, ProPublica reported that dozens of air marshals have been charged with crimes, including 18 felonies, and hundreds more have been accused of misconduct. The investigation raised questions about the adequacy of background checks and found that the Air Marshal Service had loosened some hiring standards.

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