CHARLESTON – The state auditor’s office has been served a notice of a pending lawsuit alleging failure to properly calculate and pay the wages of public employees from at least three state agencies.
The Notice of Claim was sent to state Attorney General Patrick Morrisey on April 10 on behalf of at least 8,400 salaried and hourly public employees who were not fully paid in the 2017 calendar year because of the state’s switch from twice monthly pay to biweekly. The letter says those identified so far include employees of the state Supreme Court, the Department of Health and Human Resources and the State Police.
“We intend, in 30 days or more, pursuant to statute, to file suit against the auditor (John B. McCuskey) … to seek recovery for all employees who were underpaid,” the letter states. “We will make claims under the West Virginia Wage Payment and Collection Act, which applies to state government the same as it applies to private industry. Additionally, West Virginia law does not allow state employees to be paid in arrears beyond one pay period, which is the only arrears authorized by the state.”
The letter, written by Wheeling attorneys Teresa Toriseva and Robert McCoid, says class representatives will be identified from different agencies and departments. Currently, the group is represented by Jacob Polverini, a law clerk to First Circuit Judge Jason Cuomo, who works in Ohio, Brooke and Hancock counties.
“The allegation is straightforward,” the letter states. “By changing the pay period in which the salaried employees are paid, an underpayment to each salaried employee was created in 2017 that has not been remedied as of the date of this letter.
“This problem is so well known that hotlines were created and countless hours of time has been spent by the auditor’s office trying to convince employees that the underpayment is allowed and proper.”
The auditor's office stands behind how it has handled the situation.
“Although it is our general policy to not publicly comment regarding potential or ongoing litigation, we have received notice from media sources of a potential claim concerning the State’s conversion to biweekly pay," said Lisa A. Hopkins, general counsel and Senior Deputy Commisioner of Securities in the office. "We are confident that the conversion was executed in compliance with statutory requirements and in accordance with agency directives and the law and that all State employees were paid for every hour worked."
The letter says the changeover in pay periods has been “a fiasco” and was halted, changed and criticized for failing to properly anticipate problems.
It says the changeover happened in three waves. “Wave 3” occurred in Spring 2017 and included court employees, DHHR employees and State Police employees.
This arrearage “was widely known, understood and admitted to in writing by state employees working on the problem,” the notice states. “For example, court employees were advised they would receive the arrearage (about 1.6 percent of each employee’s wages) at the end of calendar year 2017. That did not occur. The arrearage was never paid (or made up).”
In short, the affected employees received their regular salary in 2016, but received about 1.6 percent less in 2017 because of the changeover. And they’ll receive their regular salary again in 2018. The notice says about 1,400 court employees, 6,000 DHHR workers and 1,000 State Police employees might have these issues.
It says the shortages range from about $500 to several thousand, depending on base pay. It also says agencies involved in Wave 1 and Wave 2 did pay the arrearage created by the changeover to all elected officials.
“In other words, elected officials got a one-time payment to correct their arrearage,” the notice states. “Public employees got told they will get it back over time. This is illegal and improper.
“Wages are due when earned, except that public employees are allowed one pay in arrears (which occurs at the beginning of employment). To be clear, the payment to elected officials was proper. What is illegal is the failure to pay the public employees for the same arrearage created in their pay.”
A Sept. 13, 2015, letter from Legislative Auditor and Legislative Manager Aaron Allred addressed some “areas of concern,” including the governor’s salary.
“Code … sets the governor’s calendar year salary at $150,000,” Allred wrote. “With the conversion to a bi-weekly pay period the governor earned $150,206.04 during FY (Fiscal Year) 2015, however he would have received less than $150,000. The governor’s office verbally informed me that they forced an increase to the governor’s final paycheck in FY 2015 for the difference between his annual salary and the actual amounts paid during FY 2015. Conversely, other state employees did not receive the same consideration.”
Allred’s letter also mentions that about every 11 years, there would be a year that would have 27 pay periods instead of 26. And that in 2023, the next such year, the state would need an additional $33 million for that extra pay period.
The notice filed April 10 says the desired relief is full payment to all affected salaried employees plus interest from the date the funds should have been paid along with attorney fees.
“There are only a few universal truths in life, but one of them is you don't mess with people's paychecks,” Toriseva said. “The West Virginia Auditor created an arrearage in pay for many, and maybe all, public employees, when payroll switched from twice monthly to every two weeks. However, a one-time payment to clear the arrearage was made to elected officials only. Public employees want what they have earned, too.”