TSA Agent Sues Over Being Forced To Go Without Pay During Shutdown

A Transportation Security Administration officer has sued the U.S. government for withholding employees’ pay during the 43-day shutdown, arguing he and other TSA officers are owed damages for the time they worked without receiving paychecks.

Benjamin Rodgers, who screens passengers at Denver International Airport, said in his complaint filed Thursday that the Department of Homeland Security violated federal wage law by paying some agency employees on time but not others. TSA officers and other “exempted” federal workers eventually received lump-sum backpay, but not until after the record-long shutdown ended.

Rodgers told HuffPost in an interview that a lot of his co-workers struggled to make ends meet while working without pay. The situation was so bad that supervisors were telling employees where to get free food from local pantries and how to take out no-interest loans, he said.

“Some of them actually had to quit and find a separate job so they could hold up their household with kids and stuff,” Rodgers said of his co-workers.

The complaint is a collective-action lawsuit that other TSA officers may be able to opt into. If a court were to award them liquidated damages, the government may have to pay the federal minimum wage of $7.25 for each hour the officers worked during the shutdown, as compensation beyond the backpay they received.

Rodgers might not have been able to bring a case at all if not for some political gamesmanship by the Trump administration.

In general, federal employees go without pay during a government shutdown, since Congress has not appropriated money for agencies to operate. But as this shutdown dragged on, DHS officials announced that they had somehow found a way to issue paychecks to select groups of the president’s favorite employees, including the Immigration and Customs Enforcement agents who are carrying out Trump’s deportation campaign.

In an earlier shutdown case, an appeals court ruled that the government doesn’t owe workers damages for late paychecks, because agencies have no choice but to withhold the pay. But by freeing up money for ICE agents, the Trump administration demonstrated it did have a choice in the matter, said Rodgers’ attorney, David Seligman.

“They made a decision to choose between various employees,” said Seligman, whose nonprofit law firm, Towards Justice, is handling the case. “DHS has no excuse because even though they weren’t paying TSA agents, they were paying ICE agents who continue to detain people across the country.”

In other words, the administration made a policy decision based upon ideology.

DHS has not explicitly stated where the money came from to pay ICE and Border Patrol agents and other favored groups during the shutdown. As HuffPost reported at the time, the agency’s chief human resource officer said in a memo that issuing those paychecks despite the lapse in appropriations was “in alignment with the Administration’s commitment to law enforcement officers.”

Homeland Security Secretary Kristi Noem said that 70,000 law enforcement officers, including some at the U.S. Secret Service and the Transportation Security Administration, would be paid “for all hours worked” through the shutdown.

TSA officers were not among them, leaving them in the same position as hundreds of thousands of other exempted federal workers: still clocking in every day but unsure when they would see their next check.

The government shutdown began Oct. 1, when Democrats demanded that any funding deal include an extension of health insurance subsidies through the Affordable Care Act. Republican leadership dug in as the Trump administration inflicted as much pain as possible on Democrats, including by trying to stop food stamp payments to low-income Americans. The lapse in appropriations became the longest on record before Democrats caved in early November.

Whether they were furloughed or working without pay, federal employees across the country felt like pawns in a political game. Seligman said the financial anxiety they experienced was one of the “real costs” that exempted workers bore during the shutdown.

“That’s what liquidated damages are meant to remedy,” he said.

TSA officers generally don’t make a lot of money. Many of the positions listed on the government jobs board, usajobs.gov, start around $40,000, depending on the area. For many years, TSA officers were on a lower pay scale than other federal employees, and haven’t enjoyed the same union rights as workers at other agencies. The Trump administration announced earlier this year that it was ending collective bargaining at the agency on the grounds of national security.

Rodgers, who’s been working for TSA for around 16 months, said a lot of passengers moving through airport security were sympathetic to the agents during the shutdown. Some even handed supervisors grocery-store gift cards to give to their employees.

As the days went by without pay, Rodgers stopped traveling to save money on gas and avoided eating out. He said the uncertainty was much greater for his co-workers with kids, which is a big reason he decided to file the lawsuit.

He said, “I want to help out other people as much as I can, to get their fair wages they deserve.”