October 19, 2021


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High Court dismisses firefighter holiday pay ruling appeal, other litigation continues | Journal-news

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MARTINSBURG — An appeal to the West Virginia Supreme Court was dismissed Friday after the plaintiffs contested a Berkeley County judge’s previous ruling in favor of 36 current and retired firefighters.

The 2018 suit alleges firefighters from IAFF Local 805 were not properly compensated for holiday pay or overtime over a period of years and received retaliation from the City of Martinsburg for their claims.

Previously, in February 2020, Judicial Circuit Court Judge Laura Faircloth ruled in favor of the firefighters on one claim of the suit, stating firefighters must be paid the time and a half for the hours worked or be given 24 hours off in the future.

Two additional hearings were held in front of Judge Faircloth on the matter, and she issued a written decision before the city appealed. The decision can be found in Berkeley County Circuit Court records.

According to the dismissal order from the High Court, the City of Martinsburg, represented by counsel Floyd M. Sayre III, filed an appeal in January on that written order. On Feb. 4, the respondents, by counsel Teresa C Toriseva and Joshua D. Miller, filed to dismiss the appeal.

According to the W.Va. Supreme Court order, the respondents argued the appeal was interlocutory — meaning the order was given between the commencement and conclusion of the case and, therefore, it is not able to be appealed. The court agreed and dismissed the case.

In a press release, Toriseva praised the court’s decision. In addition to the Martinsburg firefighters, she represents others statewide.

“West Virginia’s professional firefighters make our cities safer,” she said. “They deserve to be paid according to the law. Retaining veteran firefighters and recruiting new ones relies on accurate and fair pay. It’s about fairness and public safety.”

On the other hand, Sayre said he was was “very disappointed” in the dismissal.

“The Court did not look at the substantive issues, but denied the appeal on a technical issue,” he said in a statement to The Journal.

“I am also surprised that the plaintiffs’ counsel did not want to get the final answer on the appropriate way for all municipalities within the state to pay their first responders during a holiday,” Sayre continued.

According to Sayre, the counsel for the plaintiffs is currently suing or threatening to sue several municipalities throughout the state over the interpretation of this portion of West Virginia Code — 8-15-10a.

“To have allowed the West Virginia Supreme Court to provide guidance would have saved tens of thousands of dollars in litigation expenses and countless wasted hours, not only for Martinsburg but other cities that are currently or soon to face the same question,” Sayre said.

“All of the cities within West Virginia want to make sure that they are properly paying our employees and the appeal to the Supreme Court would have ensured that all parties are treated fairly. The dismissal has kicked the can down the road and will result in the continued litigation in courts throughout the state until the Supreme Court provides the final answer to this issue.”

According to the Toriseva Law Firm, there remains three issues as the case heads toward trial. They are the amount of backpay wages due to the firefighters based upon judge’s orders; the salary adjustment claims, where the city was allegedly deducting earned wages from firefighter paychecks and never totally repaying it to them; and the retaliation claims, where it is alleged the city took adverse employment action against the firefighters, only in response to the firefighters filing this lawsuit.

According to previous court proceedings, the plaintiff has begun working with an accountant out of Charleston to help calculate the holiday and overtime pay wages due to each of the firefighters.

According to the lawsuit, the regular rate of pay for firefighters for holidays under state law is to be “at a rate not less than one and one-half times his or her regular rate of pay,” to which the city allegedly did not comply.

The lawsuit also alleged the city treats its firefighters differently than other city employees — specifically citing firefighters receive less compensation for holiday pay, stating for every 24 “person-hours” worked by the city’s police officers on a legal holiday, the city is paying double time.

In comparison, the lawsuit states any firefighter covering the same holiday is only being paid time and a half.

According to the law firm’s press release, Judge Faircloth’s ruling matched the method the City of Charleston applied without litigation and the method used statewide in cities large and small.

“The decades old Holiday Pay statute applies to every professional firefighter in the State and this dismissal clarifies how the cases will proceed,” the release said. “While some West Virginia cities have resolved firefighter holiday pay without litigation, Morgantown, Parkersburg and Huntington IAFF members are also in court with their cities.

“Everyone involved has been waiting for this outcome, and in all four remaining cities, the parties can now plainly calculate how much backpay firefighters are owed on a 24-hour shift.”

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