MORGANTOWN – Nearly 60 members of the Morgantown Fire Department claim the city hasn’t paid them properly for at least two years.
The 56 firefighters filed their complaint July 1 in Monongalia Circuit Court against the City of Morgantown. Lt. Charles D. Campbell is the named plaintiff, and he also is president of the IAFF Local 313. They also filed another complaint in federal court regarding the same issues.
According to the complaints, the plaintiffs are scheduled to work about 2,912 hours per year. Based on city policy, firefighters are nonexempt employees who should be paid overtime at a rate of 1.5 times. But, the complaint says the city “has incorrectly calculated the plaintiffs’ regular rate of pay,” which also makes their overtime pay rate incorrect.
Toriseva
“The Morgantown firefighters through their IAFF Local 313 will not back down until the city follows the law on their wages and compensation,” attorney Teresa Toriseva told The West Virginia Record. “Because firefighters cannot strike or collectively bargain, they have only one remedy when they are cheated in pay – to go to court.”
Toriseva, whose Wheeling firm has represented firefighters and police officers across the state numerous times in recent years regarding pay issues, said the miscalculations have cost each Morgantown firefighter thousands of dollars in wages per year.
“There is no stated policy or mathematical calculation for how the city calculates a firefighter’s regular rate of hourly pay from the stated annual salary,” the complaint states. “The City’s Handbook contains no such policy or mathematical calculation.”
According to the complaint, the city calculates firefighters’ base pay rate on the average of 56 hours per week or 2,912 hours per year. From that, the city deducts the 40 hours each week – or 2,080 per year – as regular pay. That leaves 832 hours per year for scheduled overtime hours.
Then, the city reduces 240 hours of paid time off from that amount, leaving 592 hours. It then multiplies that 592 hour by 1.5, which equals 888 hours. The city then adds the 2,080 regular pay hours to the 240 PTO hours and the 888 hours for overtime pay to get 3,208 hours. It then divides the employee’s annual salary by 3,208 hours to arrive at the regular hourly pay rate.
But during testimony in another action earlier this year, Assistant City Manager Emily Muzzarelli said the hourly pay rate was based on 3,328 hours, meaning the firefighters’ regularly hour rate would be lower than it should be, according to the complaint.
“Furthermore, the plaintiffs have not and do not agree to the city’s calculation of the plaintiffs’ regular rate of pay,” the complaint states. “The city’s miscalculation of a firefighter’s regular rate of pay has resulted in the plaintiffs being underpaid.
“The city’s miscalculation of a fire fighter’s regular rate of pay has resulted in the plaintiffs not being paid overtime compensation correctly.”
In the state court case, the firefighters accuse the city of violating the state Minimum Wage and Maximum Hours Standards and the state Wage Payment and Collection Act for failure to properly calculate their regular rate of pay and for failure to promptly pay wages when due. They also accuse the city of breach of employment agreement. In the federal case, they accuse the city of violating the Fair Labor Standards Act.
They seek judgment, injunctive relief, declaratory relief, compensatory damages, statutory interest, liquidated damages, court costs, attorney fees and other relief.
In addition to Campbell, the complete list of firefighter plaintiffs includes Mitchell Beall, Brandon Bailey, Michael Benson, Hunter Bishop, John Borzik, Joseph R. Bragg, George Calvert, Matthew Chisler, Michael Close, Klint Connery, Tanner Dalton, Thadius Dalton, Douglas A. Daniels Jr., Bryan Davis, Christopher DeBerry, Gary Freshour, Jason Ganoe, Aaron Giles, Larry Hagedorn, Jason Hatfield, Dan Horbachewski, Brian Izzo, Ashley Jenkins, Chad Laskody, William Lyons, Anthony Martin, Bailey McClain, Brent Mergenthaler, John Moore, Joshua Morgan, Nicholas L. Morris, Jayson Nicewarner, Eric Nickelson, Joshua Nypaver, Roman Olszewski, Marco Pantalo, Brett Paugh, Matt Peery, Trevor Pickenpaugh, Derek Porter, David Ross, Douglas Sharpe, Travis Smith, Anthony Stake, Mark Thalman, Travis Thomas, Lucas Turner, Coby Ware, Keith Watson, Andrew Waxman, Sean R. Whiten, Robert Wolfe, Nicholas Wright, Devon J. Zaroda and Robert Zimmerman.
The firefighters are being represented by Toriseva and Joshua D. Miller of Toriseva Law. Last week, the firm filed similar lawsuits on behalf of Clarksburg firefighters. And suspended Clarksburg Fire Chief Stephen McIntire says he has been a victim of retaliation because of questions regarding the alleged pay issues.