Morgantown firefighters claim city doesn't properly pay them for holiday work

By Chris Dickerson | Jun 7, 2019

MORGANTOWN – Members of the Morgantown Fire Department have filed a lawsuit alleging the city hasn’t properly compensated them for working on holidays.

The complaint, filed June 7 in Monongalia Circuit Court, lists Lieutenant Jayson Nicewarner as the named plaintiff. He also is president of IAFF Local 313, and the other 57 plaintiffs are Morgantown firefighters and members of the union.

“The West Virginia Legislature has set a holiday pay enhancement for firefighters statewide. Police, too,” Wheeling attorney Teresa Toriseva, who is representing the firefighters, told The West Virginia Record.  “But there is a big problem in the way the holiday pay is being calculated for firefighters in numerous cities across West Virginia.

“The miscalculation of pay by municipalities, including Morgantown, is causing firefighters to be paid less than what is actually owed, year after year, for each firefighter. This lawsuit seeks lost wages and asks the court to stop the ongoing problem.”


Toriseva  

According to the complaint, state code says any member of a paid fire department required to work a legal holiday, he shall be allowed equal time off as approved by the chief of the department or shall be paid at a rate not less than one and a half times his regular pay.

The complaint also cites a case where there was no written contract between Bluefield and its firefighters in which the court said “holiday pay statues are designed to provide enhanced benefits to those employees who are required to work on a holiday when most employees are off.”

The complaint says that even though the firefighters may have been paid additional pay for each holiday whether they worked or not, such pay was “in addition to their regular pay.”

“Such ‘regular pay’ for holidays for firefighters under state law is to be ‘at a rate not less than one and one-half times his or her regular rate of pay,’ but plaintiff was not so paid by the City of Morgantown in direct violation of the statute,” the complaint states. “Additionally, because plaintiff firefighter works a 56-hour work week, there is an established ‘regular rate of pay.’

 “Morgantown firefighters should be compensated at a rate of one and one-half times their normal pay for a holiday whether on duty or not and such compensation should factor in that firefighters work a 24-hour shift.”

The plaintiffs allege they are owed wages for “numerous holidays … over a period of many years.”

In the complaint, Toriseva says she tried to resolve this matter in mediation with a qualified mediator before filing the suit.

“That mediation was unsuccessful as the city did not grasp the severity and seriousness of the improper wage payment,” she writes. “Necessary decision makers regarding these issues are not fully informed about the issues preventing proper assessment of seriousness of these claims.”

The plaintiffs accuse the city of negligent failure to properly pay statutory holiday premium and of failing to follow the West Virginia Wage Payment and Collection Act. They ask for the appointment of a special commissioner to calculate individual damages for each of the plaintiffs.

The firefighters seek compensatory damages as well as interest, attorney fees and court costs.

The case is similar to one Toriseva filed last year in Martinsburg.

Monongalia Circuit Court case number 19-C-67.

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