PARKERSBURG – A circuit judge has ruled in favor of Parkersburg firefighters who said they hadn’t properly been paid holiday pay.
Wood Circuit Judge J.D. Beane issued a Summary Judgment Order on December 12 saying the city shall pay the firefighters based on their 24-hour shift, meaning 36 hours of pay or 24 hours equal time off for each legal holiday. That ruling is for holidays moving forward as well as back pay for previous holidays. In addition, Beane said firefighters who worked overtime during previous holidays are owed wages for two times their regular rate of pay.
“West Virginia professional firefighters and their IAFF affiliates in cities statewide, from Martinsburg to Huntington, Morgantown to Charleston, and Weirton to Parkersburg, have been fighting for their correct holiday pay for over a decade,” attorney Teresa Toriseva told The West Virginia Record. “This is a win for public safety, for the citizens of Parkersburg and for working people who live on their wages.”
Toriseva
In January 2020, Lt. Wayne White of the Parkersburg Fire Department was the name plaintiff in a case filed against the City of Parkersburg alleging negligent failure to properly pay statutory holiday premium, violations of the state Wage Payment and Collection Act and a request for appointment of a special commissioner to calculate individual damages.
The December 12 order says White and 55 other firefighters, who also are members of the International Association of Fire Fighters Local 91, are the plaintiffs. White was the president of the local at the time of the original filing. Brandon Brown now is president of Local 91.
According to court documents, Parkersburg firefighters work a 54-hour work week and 24-hour shifts, but the 24-hour shift never is worked on one calendar day. They have two shifts. A firefighter who works from midnight to 8 a.m. on a calendar day of a holiday only receives eight hours of holiday equal time while a firefighter who works the 8 a.m. to 8 a.m. the following day only receives 16 hours of equal time off.
But other city employees who work a holiday receive equal time in lieu of holiday pay. For firefighters, holiday pay was the only type of payment or benefit that was based on the number different from the hours worked on a holiday.
In addition, holiday equal time off earned from June 1 to November 30 had to be used within that period or cash payment was made on any excess over 100 total accrued holiday hours. The same for the period of December 1 to May 31.
Also, some firefighters worked holidays and overtime but were not paid overtime.
Beane’s order remedies all of that.
“This court finds the length of the firefighter’s shift should be controlling on payment of holiday pay wages or holiday equal time off,” Beane wrote. “In addition, this court finds the holiday pay statute was passed in order to give all firefighters a benefit, an equal benefit, by paying all firefighters, whether working or scheduled to be off work, this holiday pay compensation. …
“Whether the city pays the benefit by one and one-half pay, a wage, or by banking equal time that is later used as leave or cashed in, a fringe benefit, the collection of nonpaid wages and/or fringe benefits defined as a ‘wage,’ both are covered by the Wage and Payment Collection Act.”
Beane did say more testimony will be needed to determine the exact amount of damages and other issues, such as attorney fees. He also denied both sides’ Motions for Summary Judgment and the appointment of a special commissioner to calculate damages.
“The West Virginia Legislature has set a holiday pay enhancement for firefighters statewide. Police, too,” Toriseva previously told The 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 Parkersburg, 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’s firm has represented firefighters in similar cases across the state, having filed similar lawsuits in Huntington, Morgantown, Martinsburg and Weirton. Some cities have resolved the issues without litigation.
Wood Circuit Court case number 20-C-10