CHARLESTON – The state Supreme Court will consider an appeal by members of the Morgantown Fire Department regarding holiday pay and additional time off.
In a March 14 scheduling order, the court set deadlines in the case of the firefighters, who also are members of the International Association of Firefighters Local 313. After gathering more information on the appeal, the justices will decide whether to hear the appeal and set a date for oral arguments.
The firefighters petitioned the court March 9 to appeal an order issued February 9 by Monongalia Circuit Judge Philip Gaujot, who granted judgment for the city in the case. That followed a September ruling for the city that was objected to by Teresa Toriseva, representing the firefighters, who said the judge should have conducted the hearing in person rather than virtual. In December, Gaujot agreed. He later heard oral arguments in his courtroom.
Toriseva
Originally filed the complaint in 2019, the complaint says the city didn’t pay firefighters properly for holiday pay. The court ruled the city has no obligation to pay premium pay.
Gaujot did say a special commissioner could consider evidence for entitled time off for each of the 54 firefighters. He said any firefighter that didn’t received the time off owed to him or her for since 2017, the firefighter can receive the owed time off.
Toriseva could not be reached for comment on the case.
In their Supreme Court petition, the firefighters maintain the Firefighter Holiday Pay statute, which is in state code, establishes enhanced benefits to firefighters who are required to work a holiday when most other workers are off.
“If any member of a paid fire department is required to work during a legal holiday … or if a legal holiday falls on the member’s regular scheduled day off, he or she shall be allowed equal time off at such time as may be approved by the chief executive officer of the department under whom he or she serves or, in the alternative, shall be paid at a rate not less than one and one-half times his or her regular rate of pay,” the statute says.
“This benefit appears in the firefighter paychecks as compensation for holiday pay of paid time off,” the petition states. The plaintiffs “did not waive nor could they lawfully waive any statutory holiday pay requirements for firefighters who actually worked the subject holiday.
“Although the plaintiff/firefighters – whether they worked a holiday or not – may have been paid additional pay for each holiday, the city did not pay enough to comply with the statute. The city compensated the firefighters by providing them with 12 hours of paid time off whether the firefighter worked or not; the city should have compensated each firefighter with 24 hours of paid time off.
“Additionally, because plaintiff firefighters work a 56 hour work week, there is an established ‘regular rate of pay.’ As such … 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.”
In February 2020, the city acknowledged it was not paying firefighters correctly but doubling the amount of paid time off, from 12 hours to 24 hours per shift whether he or she work or not.
The plaintiffs claim Morgantown only paid firefighters for 12 hours of work on holiday shifts when they actually worked 24 hours. In an amended complaint filed in September, the firefighters added more claims of past lost wages that total more than $1 million. It would add additional claims from when the original complaint was filed until Morgantown’s City Council passed a resolution addressing the incorrect payment method for holiday pay. That time frame is June 7, 2019, to February 18, 2020. It also adds seven firefighters hired after the original filing but before the resolution was passed. The total of the claim is a little more than $6 million.
According to calculations by plaintiff’s expert witness Roger A. Griffith, the total damages due the 57 firefighters when the original complaint was filed was just over $5.25 million dollars. Adding in that eight-month window, the total comes to almost $6.46 million. Griffith is a certified public accountant with Gray Griffith & Mays in Charleston.
The firefighters are being represented by Toriseva and Joshua Miller of Toriseva Law in Wheeling. The city is being represented by Ryan P. Simonton, Matt Elshiaty and Erin Webb of Kay Casto & Chaney's Morgantown office.
West Virginia Supreme Court of Appeals case number 22-0185 (Monongalia Circuit Court case number 19-C-167)
