HUNTINGTON – Huntington City Council has voted to approve the final settlement regarding holiday pay issues with a group of current and former firefighters.
Council previously gave preliminary approval to the settlement in August. It voted November 28 to approve the final settlement. Members of the International Association of Fire Fighters Local 289 approved the settlement in June following mediation between the parties earlier in the month.
Teresa Toriseva, a Wheeling attorney who represented the firefighters, said the settlement includes a backpay award to be paid to the firefighters by the city and also an increase in the amount of paid time off provided to the firefighters, which is controlled by West Virginia law. The settlement also provides the city will pay an agreed amount for the firefighters’ attorneys’ fees, which is also authorized by West Virginia law.
Toriseva
“The professional firefighters of Local 289 are confident this resolution will enhance the safety of the citizens of Huntington because it will help in the recruitment of new firefighters and will help keep the experienced and trained ones,” Toriseva told The West Virginia Record.
“After we reached an agreement at the mediation on June 1, the IAFF Local 289 members that are plaintiffs in the suit have voted to approve the settlement," Steve McCormick, president of International Association of Fire Fighters Local 289, told The Record in August. "I am pleased and grateful, and I know the local members are too, that the Mayor and the city administration came to the table to address our Holiday Pay issues. We love this city and protecting its people is our number one priority.”
According to the mediation term sheet, the city will make a backpay award of $415,000 to the plaintiff firefighters. The plaintiffs will determine the disbursement amounts, and the city will pay the amounts with the normal payroll deductions and pension contributions.
Going forward, firefighters who have no duty hours on the relevant holidays will be provided an additional 12 hours of paid time off over and above what they now receive under the current Collective Bargaining Agreement. A firefighter who ends his shift at 7 a.m. on the holiday will receive an additional 5 hours of paid time off over and above what they now receive under the current CBA. Those who start their shift at 7 a.m. on a holiday will be paid according to the CBA.
It says the city also will calculate and “bank” applicable holiday hours for the period between the filing of the lawsuit and the settlement date. In addition, it says the city also will provide time off for firefighters based on a pending similar state Supreme Court case involving Morgantown firefighters.
The term sheet also says the firefighters are not waiving claims from the complaint date forward and are only releasing claims from the complaint back five years in exchange for the backpay award. The city also will pay attorney fees and court costs.
"For the last two years, the city has been engaged in litigation with each of the firefighters individually concerning the interpretation of specific arcane language of a statute defining how civil service firefighters are to be paid for holidays," City Attorney Scott Damron previously told The Record. "After lengthy negotiations, the parties have reached a tentative compromise that involves the payment of money and the allowance of additional time off.
"The settlement also takes into account the fact that an identical issue is pending before the West Virginia Supreme Court of Appeals. The computation of holiday pay after the Supreme Court’s decision will be based on the guidance of the court."
This spring, the sides sparred over motions related to the Morgantown case before the Supreme Court. The city wanted to stay the case until the Supreme Court ruled on the Morgantown case, but the firefighters said the cases weren’t similar enough to warrant the stay because, among other things, Morgantown and its firefighters don’t have a CBA.
Days earlier, the firefighters had filed a Motion for Sanctions against the city alleging it failed to properly negotiate after Chiles ordered the sides to do so.
During an April 14 pre-trial hearing in this case, Chiles ordered the parties to try to resolve the issues. But, the motion says the city would not mediate without the plaintiffs’ expert report being provided.
“The defendant certainly must have known the plaintiffs’ expert report is and was always going to be a money computation not a time computation,” the motion states.
The week before, the expert report was finalized and mediations took place in Huntington. On April 21, mediator James Lamp met with plaintiff attorneys Toriseva and Michael Kuhn as well as McCormick and five other members of IAFF Local 289. Then, Lamp went to discuss the matter with the city.
When Lamp returned to the plaintiffs, he said the city was not prepared to discuss the “forward fix” aspect of the case.
“This was the first time since the lawsuit was filed on August 5, 2020, that there was any indication the city would not discuss the ‘forward fix,’” the motion states. “The mediator indicated the city’s position now was that it is a CBA issue and nobody at the mediation on behalf of the city had authority to negotiate that issue. This is contrary to the previous assertions that the lawsuit was delaying the CBA.
“The mediator then indicated the city was not willing to pay cash for the past missed holiday pay and would discuss paying it only in the form of additional time off.”
Attorneys for the firefighters told Lamp these positions seemed to not be in the spirit of mediation and said they’d remain at the mediation until it was clear there was no hope of resolution. Lamp returned 30 minutes later repeating the same position of the city, according to the motion.
The motion says the city isn’t required to settle the case at mediation, but it required to participate meaningfully. The plaintiffs say the city did not hold up their end of the bargain.
It also says when one party failed to participate meaningfully, trial court rules provide the court with authority to act. The firefighters call the city’s conduct “egregious,” and list examples of how other cities took part in similar negotiations.
The firefighters say simply showing up for a mandatory mediation with no authority or intention to resolve the issues is a violation of state code.
The original complaint, listed 83 members of Local 289 as plaintiffs. The City of Huntington is listed as the defendant.
“The West Virginia Legislature has set a holiday pay enhancement for firefighters statewide. Police, too,” Toriseva, previously told The 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.
“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.
"Firefighters are part of the core response to human tragedy in our community. 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 previously 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 alleged they are owed wages for numerous holidays over a period of many years.
The plaintiffs accused 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 asked for the appointment of a special commissioner to calculate individual damages for each of the plaintiffs.
The firefighters sought compensatory damages as well as interest, attorney fees and court costs. They were represented by Toriseva, Kuhn and Joshua Miller of Toriseva Law in Wheeling. The city was represented by Joseph Leonoro of Steptoe & Johnson’s Charleston office.
Cabell Circuit Court case number 20-C-245