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Government finally doles out $106 million settlement to air marshals

By Mike M. Ahlers, CNN
  • Federal air marshals get a $106 million settlement
  • The payout culminates a five-year-old lawsuit
  • The average check is $26,000 after legal fees
  • Air marshals now get overtime pay

Washington (CNN) -- The game of identifying federal air marshals on airplanes may just have gotten a little easier. Look for the smiling person with a fatter wallet or purse.

The government this week deposited $106 million in a fund to compensate air marshals for unpaid overtime, the end result of a lawsuit filed more than five years ago.

On average, each of the more than 3,000 air marshals covered by the lawsuit will get $26,000 after legal fees are deducted. But individual amounts will vary widely because of their lengths of service, salaries and other factors. Some air marshals will get two or three times that amount, and some much less, a participant in the suit said.

A lawyer representing the air marshals notified them this week the trustee in the case will send out individual checks in about three weeks.

The payout is a "great, great outcome," said Stephen G. Seliger, a Chicago attorney who represented the air marshals. It will bring to an end the 2006 lawsuit, he said, although another lawsuit has been filed on behalf of about 450 air marshals who were not part of the original suit.

"I'm satisfied and I'm happy," said one of the 11 original plaintiffs in the case, who asked not to be named because he was not authorized to speak.

"In my case, I was working 16- to 20-hour days and was only being compensated for eight hours," he said. He was furious because senior level officials were making "extraordinarily large salaries and bonuses" while denying rank-and-file air marshals overtime, he added..

The federal government argued the air marshals were exempt from the Fair Labor Standards Act, and therefore were not entitled to overtime pay. It also argued air marshals' "availability pay," a 25 percent bump in pay for being available 24 hours a day, compensated them for the extra hours they work.

But a federal judge ruled that air marshals are not exempt from the labor law, and the availability pay was not intended as overtime pay. Air marshals were entitled to overtime after working 43-hour weeks, the judge said.

The judge's opinion, and the change of leadership at the agency, led to the settlement, the air marshal litigant said.

He said he gives credit to Air Marshal Service Director Robert Bray and Homeland Security Secretary Janet Napolitano because "they truly understand what we do."

"I think this closes a chapter in the mismanagement of the Federal Air Marshal Service in the past. And although it isn't perfect now, it's a hell of a lot better then it was six or seven years ago," he said.

In a letter to the air marshals, the attorneys said they were taking a 22 percent share of the settlement instead of the contracted 33 percent to expedite the settlement. Approximately $3 million of the amount will be used to pay the air marshals' Social Security taxes.

In May of 2010, the Air Marshal Service converted to a pay system that includes overtime pay.

"I have no shame whatsoever being compensated for the hard work that the men and women out here do," the air marshal said.

A second air marshal contacted by CNN also said he is happy with the settlement, but said some problems remain within the agency. A rule requiring managers to give air marshals 10 hours off between shifts is frequently ignored, he said, and air marshals are often required to return to work after only a few hours off.

"How are you supposed to be efficient if something happens," he said. "You can't physically stay awake."

But, he added, "generally, things are better."