Air Marshals Entitled To Overtime Under FLSA

A group of 1,805 federal air marshals brought a lawsuit against the federal government, alleging that they were not paid overtime as required by the Fair Labor Standards Act (FLSA). The air marshals routinely work specific workweeks of at least 50 hours. If air marshals annually average two unscheduled overtime hours per workday, they are entitled to a 25 percent bonus known as “availability pay.”

The Government’s first defense for the lawsuit was that the FLSA did not apply to air marshals. The Government argued that Transportation Security Agency (TSA) employees’ compensation, including overtime compensation, is governed by a personnel management system set up under federal law and that thus TSA employees such as air marshals are exempt from the FLSA. The Court rejected this argument, concluding that the TSA employees were only exempt from federal “personnel” laws, and that “the FLSA is not a federal personnel law; rather, the FLSA is a universally applicable employment law and the personnel management system is subject to its provisions.”

The Government fared better with its argument that air marshals were subject to the partial overtime exemption found in Section 207(k) of the FLSA. The Court found that the air marshals were in fact engaged in “law enforcement activities” within the scope of the Section 7(k) exemption. The Court noted that the main job responsibility of air marshals is to “travel on commercial aircraft and seek to detect and neutralize security threats. Air marshals are authorized to carry firearms and to make arrests on passenger flights. Air marshals also review intelligence and security reports; perform surveillance and surveillance detection on airport premises, review aircraft seat maps, least-risk bomb location procedures, evacuation procedures and operational tactics; and prepare and file reports on suspicious activity or incidents. There is no question that air marshals serve to protect the lives of individuals, rather than property. They do so through the prevention and detection of criminal acts, response to complaints, violations and emergencies, investigation and evaluation of evidence to locate suspects, and by apprehending and arresting suspects.”

Finding that the Government had established a seven-day work period under Section 7(k), the Court turned to the issue of damages. The key issue was whether the “availability pay” received by air marshals could act as a credit against the Government’s overtime liability. The Court rejected the Government’s argument that such a credit existed. To be a credit or offset, the Court observed, availability pay had to be an “overtime premium.” The Court concluded that “under the clear and unambiguous language of the FLSA in its regulations, availability pay does not constitute overtime compensation. Availability pay is neither a fixed amount per hour nor a multiple of the non-overtime rate. It is a flat 25 percent enhancement to base salary. Furthermore, it is not greater than the regular rate. Finally, it is not pay for certain hours; rather, it is a flat percentage of the employee’s basic pay which remains fixed regardless of the number of hours worked in a particular pay period. Availability pay therefore does not qualify as an exclusion from the regular rate of pay, nor does it qualify as an offset.”

The Court concluded that since the air marshals were compensated for 50-hour weeks, they had “already been partially compensated for seven overtime hours per week. Thus, the air marshals are entitled to additional remuneration for each of those seven hours, such that their total remuneration equals one and one-half times their regular rate. For all additional overtime hours, the air marshals are entitled to remuneration of one and one-half times their regular rate.”

Federal Air Marshals v. United States, 2008 WL 4997346 (Fed.Cl. 2008).

This article appears in the January 2009 issue