HUNTINGTON – Members of the Huntington Fire Department have filed a lawsuit claiming the city hasn’t paid them properly for time worked on holidays.
With 83 members, Huntington has the third largest fire department in the state. The complaint, filed Aug. 5 in Cabell Circuit Court, lists all 83 members of the department as plaintiffs. The City of Huntington is listed as the defendant. Lieutenant Steve McCormick is the president of International Association of Fire Fighters (IAFF) local 289 and the first listed plaintiff.
“The West Virginia Legislature has set a holiday pay enhancement for firefighters statewide. Police, too,” attorney Teresa Toriseva, who is representing the firefighters, previously has told The West Virginia Record when she filed similar lawsuits in other cities. “But there is a big problem in the way the holiday pay is being calculated for firefighters in numerous cities across West Virginia.
Toriseva
“The miscalculation of pay by municipalities ... 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 said she sent correspondence to Huntington City Manager Hank Dial in March indicating the city was wrongfully withholding holiday pay from the firefighters. Although discussion took place about resolving the matter, no movement toward resolution has occurred since March.
Bryan Chambers, spokesman for Huntington Mayor Steve Williams’ office, said the city would not have a statement until officials have ample time to review the complaint.
"Firefighters are part of the core response to human tragedy in our community," Toriseva told The Record. "They help us all, without exception, in our times of greatest need.
We must at least pay them properly and according to what the law requires."
According to the complaint, state code says every West Virginia firefighter, whether on duty or off duty, should get either time and a half pay or 24 hours paid time off equal to the shift for every legal holiday.
"The right cannot be waived," Toriseva told The Record. "The cities that have collective bargaining agreements must still comply with the pay enhancement set out in statute and the CBA is the basis for the 'regular rate of pay' which is paid at time and a half."
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.”
The plaintiffs allege they are owed wages for numerous holidays over a period of many years.
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.
Toriseva’s firm has represented firefighters in similar cases across the state, having filed similar lawsuits in Morgantown, Martinsburg and Weirton, which settled with the firefighters. Last week, Charleston and its firefighters reached a $1.7 million agreement. Toriseva represented the Charleston firefighters as well.
The existence of a collectively bargained labor agreement which addresses holiday pay does not preclude the City of Huntington from mandatory adherence to the West Virginia state wage payment acts. In support, refer to the ruling of Ohio County Circuit Court Judge David Sims in a case with similar facts where the paid members of the Weirton Fire Department brought a claim against the City of Weirton regarding unpaid holiday pay.
The Weirton firefighter’s case was a companion case to the action brought by the Weirton police officer alleging almost identical claims as to unpaid holiday pay. Ultimately, Judge Sims consolidated these cases in the interest of judicial economy and granted the Police Department’s Motion for Partial Summary Judgment. Judge Sims found that the enhanced pay provided in the police department collective bargaining agreement did not ensure compliance with the Holiday Pay Statute and further, that the Holiday Pay Statute Provisions cannot be waived.
Judge Sims ordered payment enhancements in the collective bargaining agreement and the Holiday Pay enhancements could be added together for members who worked the holiday and made clear that members who did not work the holiday are entitled to the same benefits of the statute as if they worked the holiday.
This means every WV fire fighter, whether on duty or off duty gets either time and a half pay or 24 hours paid time off equal to the shift for every legal holiday. The right cannot be waived. The cities who have collective bargaining agreements must still comply with the pay enhancement set out in statute and the CBA is the basis for the “regular rate of pay” which is paid at time and a half. The issue was resolved many years ago by Judge Sims in an opinion involving Weirton Police and Fire who both had collective bargaining agreements.
Toriseva and her firm have represented firefighters across the state in similar lawsuits in recent months.
In February, Berkeley Circuit Judge Laura Faircloth ruled that Martinsburg firefighters were not being properly paid for holidays. She specifically ruled from the bench the statute says that whether the firefighters work or not, they are to be paid 1.5 times their hourly rate for their entire shift; if they do not work the holiday, the city has the option to pay the 1.5 times the hourly rate of pay or give them paid time off equal to their 24-hour shift.
In January, Charleston City Council unanimously approved a $1.7 million settlement between the city and its firefighters' union to correct a pay inequity that has been taking place since 2012.
Mayor Amy Shuler Goodwin and Myron Boggess, president of the Charleston Professional Firefighters Local 317, announced the agreement at a Jan. 13 press conference. City Council voted on it Jan. 21 and also had the first reading of the resolution to fix the situation going forward. The settlement includes $1.5 million in back pay wages and $200,000 in attorney fees.
In short, every Charleston firefighter now will get 36 hours of holiday pay whether working or not because a firefighter is to be compensated time and a half for his shift whether working or not. Essentially, it’s time and a half for 24 hours.
In February, Morgantown officials passed a “temporary fix” to partially address the current failure of the city to pay the firefighters correctly. The ordinance states “each firefighter who regularly works a 56-hour per week shift paid leave hours equivalent to the total about of 24 hours for each legal holiday during calendar year 2020.” The temporary fix did not address any back pay, and it expires at the end of 2020.
Last January, Toriseva filed the complaint on behalf of the Parkersburg firefighters alleging violations of the Holiday Pay statute and the Wage Payment Collection Act.
And, Weirton resolved a similar situation with its firefighters last year.
"The City of Charleston, with the largest fire department in the state, fixed the problem without a lawsuit being filed, paid lost back wages and implemented a forward fix on pay," Toriseva told The Record. "These lawsuits in Martinsburg, Morgantown, Parkersburg and now Huntington similarly seek to require those cities to pay firefighters properly on holidays, per state code, and back pay for lost firefighter wages.
"When a wage matter cannot be resolved, a firefighter, who is prohibited from collective bargaining in West Virginia, has no remedy except to go to court.
"We are pleased that Judge Faircloth in Martinsburg has agreed with our legal interpretation and granted summary judgment and that Morgantown City Council has implemented a temporary one-year fix for firefighter holiday pay there.
"We seek to solve this problem statewide so that all firefighters are paid according to law."
The Huntington plaintiffs seek compensatory damages, double damages as allowed by statute, interest, attorney fees, court costs and other relief. They are being represented by Toriseva and Joshua D. Miller of Toriseva Law in Wheeling. The case has been assigned to Circuit Judge Chris Chiles.
Cabell Circuit Court case number 20-C-245
