MARTINSBURG – More than three dozen current and retired Martinsburg firefighters have sued the city for allegedly failing to pay holiday pay.
Mark Stroop is a lieutenant with the Martinsburg Fire Department and is president of the I.A.F.F. Local 805. He is the named plaintiff, and all 37 plaintiffs are members of the local. Three of the plaintiffs are listed as captains, six as lieutenants, 26 are firefighters and two are retired.
“The City of Martinsburg appears to pay its police officers correctly as to holiday pay, and this lawsuit simply seeks to have the firefighters also paid correctly as to holiday pay,” plaintiffs Teresa Toriseva said.
According to the complaint, none of the plaintiffs could waive any statutory holiday pay requirements for firefighters who actually worked the holiday.
State code says that if any member of a paid fire department is required to work during a legal holiday or if the holiday falls on the firefighter’s regularly scheduled day off, he or she shall be allowed equal time off at such time as may be approved by the chief or shall be paid at least time and a half.
According to the complaint, the firefighters – whether they worked a holiday or not – may have been paid additional pay for each holiday, such pay was “in addition to their regular pay.” They say Martinsburg didn’t pay them properly for the holidays.
They also claim that because they have a 56-hour work week, there is an established “regular rate of pay.” The firefighters say they are owed wages for “numerous holidays … some over a period of many years,” but they say they were not paid at the rate of at least time and a half. They also say when they worked overtime on holidays, they were not paid double time for the overtime hours worked.
In the complaint, the firefighters say Martinsburg police officers are paid properly when they work holidays and holiday overtime.
The firefighters claim the city violated the state Wage Payment and Collection Act and negligently failed to properly pay the statutory holiday premium. They seek a motion for the appointment of a special commissioner “to calculate the holiday pay wages due each of the firefighters from their date of hire … to assess the costs” against the city. They also want the commissioner to “calculate the additional benefits due each firefighter.”
They seek compensatory damages, attorney fees, court costs and other relief.
Wheeling attorney Teresa Toriseva of Toriseva Law is representing the firefighters. The case has been assigned to Circuit Judge Laura Faircloth.
Berkeley Circuit Court case number 18-C-209