In hearings last week, House Oversight Committee Chairman Jason Chaffetz (R-Utah) said that 103 of the TSA’s 48,000 airport screeners quit each week. “They really don’t like working there,” Chaffetz said. “That’s a management problem there.”

To resolve this, there has been much chatter about privatizing security operations; however, security screeners for the Transportation Security Administration (TSA) are already not really “federal employees.” Instead, they are hourly wage earners, getting paid starting salaries of less than $15 per hour, who get all of the bad management and red tape of working for a federal agency without any of the perks.

The TSA was created as part of the Aviation and Transportation Security Act of 2001 (ATSA). While TSA was originally part of the Federal Aviation Administration (FAA), it was moved under the Homeland Security Department in 2013. Under the ATSA, TSA screeners are covered by the personnel management system applicable to employees of the FAA, except to the extent that the administrator for TSA modifies that system. This stayed true even after TSA was no longer under the FAA (because of Congress’ wacky language in ATSA).

Now, here’s where it gets weirder: In 2000, legislation was passed allowing FAA employees to have the usual rights enjoyed by federal employees, such as the right to appeal adverse actions (e.g., removals, demotions, etc.) to the Merit Systems Protection Board (MSPB). So, logic would follow that since the ATSA states that TSA screeners are covered by the same personnel system as FAA employees, TSA screeners would thus have the same rights as FAA employees, right?

Wrong.

Instead, another provision of ATSA exempts TSA screeners from the entitlements FAA employees are provided under the law. The result is that TSA screeners are so-called “covered” by the FAA’s personnel system even though they are no longer FAA employees and even though they never got any of the benefits provided for under the FAA’s personnel system.

In the years since that was hashed out, there has been decision after decision holding that what this means is that TSA screeners are not entitled to the rights of federal employees, nor even the rights enjoyed by private sector employees.

For example:

• In Conyers v. Merit Sys. Prot. Bd., 388 F.3d 1380 (Fed.Cir.2004), the U.S. Court of Appeals for the Federal Circuit found that because the ATSA preempts general federal employment statutes (such as the right to appeal a termination to the MSPB), it also precludes screeners bringing complaints under the Uniformed Service Employment and Reemployment Rights Act of 1994 (USERRA) (which prohibits discrimination on the basis of military service).

• In Jones v. United States, 88 Fed. Cl. 789, 790-91 (2009), the U.S. Court of Federal Claims held that security screeners are not entitled to overtime pay in accordance with the overtime compensation scheme set forth in the Fair Labor Standards Act (FLSA), nor that TSA need comply with the FLSA at all.

• In Castro v. Sec’y of Homeland Security, 472 F.3d 1334, 1337 (11th Cir.2006), the U.S. Court of Appeals for the 11th Circuit held that the ATSA exempts TSA from complying with hiring standards set forth in the Rehabilitation Act, 29 U.S.C. § 701 et seq., a statute generally prohibiting discrimination on the basis of disability. Screeners are also precluded from bringing claims of failure to reasonably accommodate disabilities. Of course, in addition to having little pay and few rights, screeners must also suffer the disdain of the traveling public, who tire of being asked to remove their shoes and measure out their liquids into 3-ounce bottles, and the notorious leadership failures of their management. From the rotating door of TSA administrators at the very top, who engage in a never ending game of shuffle with the incompetent and/or misbehaving executives below them, nothing ever seems to get fixed at this very broken agency. They might start with showing some respect to the screeners who are the face of TSA to the public, as well as those carrying the brunt of keeping the traveling public safe every day.

I’m sure Chaffetz would rather resign than suggest screeners be paid more or be afforded the rights their management entitled themselves to receive, but people are people, and what would motivate a contract screener is no different than what would motivate those serving in the role today.

Debra D’Agostino is a founding partner with the Federal Practice Group.

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