PARKERSBURG – A circuit judge has denied the City of Parkersburg’s motion to stay an order in a lawsuit regarding holiday pay for firefighters.
Judge J.D. Beane made his ruling from the bench December 20 following a hearing in the case. His decision means the city is bound to implement his December 12 order fixing pay immediately for 56 city firefighters who are members of the International Association of Fire Fighters Local 91.
“Last week, the court ruled in favor of the Parkersburg firefighters and found the city underpaid them for years,” attorney Teresa Toriseva, who is representing the firefighters, told The West Virginia Record. “Today, the court denied the city’s efforts to pause that order. This means the Parkersburg firefighters will finally be paid according to West Virginia law.
Toriseva
Last week, Beane issued a Summary Judgment Order 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.
The city had asked for the stay pending appeal as it plans to appeal the ruling to the state Supreme Court. A damages trial in the case currently is scheduled for January 20.
In their response to the city’s motion to stay, the firefighters say the city simply doesn’t want to pay them the holiday pay for the upcoming trio of holidays.
“That is the only reason they are asking permission from this court to ignore its order,” that response states. “The city states there is no method for it to get the money back from the firefighters should it pay the wages going forward but win on appeal.
“But it has the option of filing a lawsuit to recover those wages, much like the firefighters have been forced to do because the city refuses to pay them.”
Toriseva said Beane’s latest ruling is important to firefighters across the state.
“This decision has statewide impact for all professional firefighters who seek to be paid correctly,” she told The Record. “Every professional firefighter in West Virginia is harmed when this holiday pay law is misinterpreted.
“Harming firefighter pay harms public safety. They risk their lives to save the rest of us and our property. At a minimum, they deserve to be paid properly for their work and they shouldn’t have to fight for years in court to make that happen.”
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 IAFF 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 would remedy 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. Parkersburg is being represented by Johnnie E. Brown and Donovan M. Powell of Pullin Fowler Flanagan Brown & Poe in Charleston.
Wood Circuit Court case number 20-C-10