CHARLESTON – The cases of six Northern Panhandle substitute school employees who sued WorkForce West Virginia to stop the agency from recouping any allegedly owed overpayment of unemployment compensation related to the COVID-19 pandemic have been consolidated.
The plaintiffs – Paula Esposito, Stacey Cecil, Beth McLaughlin, Anna Cross, Heather Williams and Stacie Lemmon – filed their individual complaints August 3 in Kanawha Circuit Court against WorkForce West Virginia, a division of the state Department of Commerce, and Commissioner Scott A. Adkins.
On May 26, Kanawha Circuit Judge Carrie Webster issued an agreed order granting the plaintiffs’ motion to consolidate.
Toriseva
According to the complaints, all six plaintiffs are substitute employees for the Marshall County Board of Education, and one of them also did some work for the Ohio County BOE. They are aides, teachers and cooks.
The complaints arise out of the interpretation and application of an executive order issued by Gov. Jim Justice on March 29, 2021. The plaintiffs allege they became unemployed because of the COVID-19 pandemic, but each was informed later that an overpayment of unemployment compensation benefits had occurred.
The plaintiffs say the overpayment was received without fault on their part, and that the recoupment of the overpayment would be against the equity and good conscience.
“The Marshall County substitutes suffered job and wage loss much like much of our state’s workforce has because of the COVID-19 pandemic,” attorney Teresa Toriseva told The West Virginia Record when the complaints originally were filed. “They were never sure when, or if ever, they would be called back to work. The unemployment benefits they received during this time were designed to assist them in just this sort of situation.
“WorkForce West Virginia and Commissioner Adkins are now attempting to claw back those funds when there is an executive order signed by Governor Justice specifically directing those funds are not to be taken back from these workers. The Marshall County substitutes are asserting their rights to enforce the governor’s executive order and protect the funds that were paid to them during the pandemic.”
When the 2019-20 school year ended prematurely because of the COVID pandemic, each of them filed unemployment compensation claims as permitted by law. Each claim was approved, and each woman received payment.
Later, each plaintiff received a notice via mail from WorkForce West Virginia claiming they had incorrectly received unemployment compensation benefits from May 24, 2020, to August 22, 2020. The notice also informed the plaintiffs they had to repay the overpayment.
The amounts owed range from $4,314 to $5,760. Some of the women have had parts of their totals deducted from their ongoing unemployment compensation.
All of the plaintiffs except for one have appealed the overpayment decision but were denied relief, according to the complaints.
On March 29, 2021, Justice issued an executive order regarding WorkForce West Virginia police and procedures related to the COVID pandemic. It also requires the commissioner to suspend collection of non-fraudulent unemployment overpayment.
“Workforce West Virginia shall not recover or attempt to recover unemployment benefits that were incorrectly but non-fraudulently distributed to claimants,” the complaints say of Justice’s executive order. “No allegations of unemployment compensation fraud have been made against the plaintiffs. In fact, no such allegations could be made as plaintiffs are without fault.
“The overpayment received by plaintiffs were received without fault on their part as it was not necessarily assured that their employment would begin the following school year. Recoupment of this overpayment, considering the circumstances, would be against the equity and good conscience considering the sacrifices and difficulty of all employed in the field of education.”
Still, the complaints say WorkForce West Virginia continues to try to recovery the overpayments to the six plaintiffs. Attorneys for the plaintiffs talk to Adkins to try to resolve the issues without success.
“Plaintiffs therefore have the right to have this court determine how their rights, specifically, their rights to not have funds clawed back from them that were paid to them through no fault of their own during the COVID-19 pandemic, are affected by (the executive order),” the complaints state.
The plaintiffs seek injunctive relief in asking the court to declare the executive order carries the force of law and that the order in question protects them from any obligation to repay the overpayment. They also seek to have the plaintiffs who have had money withheld from ongoing unemployment benefits be paid back.
The plaintiffs are being represented by Toriseva and Joshua Miller of Toriseva Law in Wheeling. The defendants are being represented by Caleb B. David of Shuman McCuskey Slicer in Charleston.
Kanawha Circuit Court case number 21-C-641
