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PARKERSBURG -- West Virginia's Intermediate Court of Appeals partially reversed a ruling by a Wood County Circuit Court judge in a lawsuit over how portions of Parkersburg firefighters' pay are calculated.
The three-judge panel issued a memorandum decision last week in the lawsuit filed in 2018 over a change made a year earlier reducing firefighters' pay for longevity and emergency medical technician certification.
City officials made the change based on firefighters transitioning from a 48- to a 54-hour work week, arguing the increases were meant to boost pay by a lump sum rather than the hourly rate. Three firefighters and the International Association of Fire Fighters Local 91 filed suit, claiming the change was a violation of state wage law.
Wood County Circuit Judge Robert Waters ruled in the firefighters' favor in the fall of 2021, then issued an order in September 2022 telling the city to restore the pay to the original rates; calculate back pay, with legal interest, owed; and correct the retirement pay rate of affected firefighters. The order also told the city to stop using a pair of pre-2008 ordinances to justify the change.
The Intermediate Court ruling, signed by all three judges, says the ruling was incorrect in regard to longevity pay and sent the question of EMT pay back to the local court. It also ruled that the IAFF, a fraternal organization that is not an official bargaining unit, does not have standing to sue on behalf of its members in this case, so individual firefighters would have to take action.
Attorney Johnnie Brown, who is representing the city, said he was pleased with the portions of the ruling in the city's favor.
"The city had always felt that we had interpreted the law correctly," he said.
Plaintiffs' attorney Walt Auvil disagreed.
"The Intermediate Court is wrong," he said. "And I haven't gotten directions from the client yet, but my recommendation is we appeal."
That appeal would go to the West Virginia Supreme Court.
The memorandum decision says a 2008 city ordinance established longevity pay that gave employees an additional $624 a year for each year they worked for the city. That equated to 30 cents an hour for employees working a 40-hour week, 25 cents an hour for those working a 48-hour week and 22.22 cents an hour for those working 54.
Longevity pay was eliminated in 2011, but employees who had earned it continued receiving it, though it no longer increased.
Also in 2008, Parkersburg City Council approved an ordinance increasing the pay of firefighters who earned and maintained their EMT certification. The rates were 50 cents an hour for those working 40 hours a week and 48 cents an hour for those doing 48.
In the fall of 2011, a city ordinance moved all firefighters from 48- to 54-hour work weeks but the rates paid for longevity and EMT certification remained at the 48-hour level. City officials changed the rates to reflect the same amount based on 54-hour weeks in 2017, saying the employees had been overpaid prior to that.
Waters had ruled the changes constituted a reduction in pay without proper written notice.
The intermediate court decision said that was not accurate in the case of longevity pay, since the ordinance specifically spelled out a rate for employees working 54 hours.
Auvil said the decision did not address the plaintiffs' main argument, which is that the longevity pay accrued and was frozen before the firefighters moved to 54-hour shifts.
The decision notes the EMT pay ordinance does not make reference to a 54-hour-week rate, nor a total of $1,040 a year, even though the 40- and 48-hour rates add up to that amount. The decision says that while the city has the authority and arguably a duty "to correct an outdated pay rate," compliance with the notice provisions of West Virginia's Wage Payment and Collection Act is still required.
However, records submitted to the court do not make clear whether the city provided such notice, the decision says, so the case was remanded to the circuit court to make that determination.
"The court felt that the record wasn't as complete as they would have liked it," Brown said.
Auvil said he believed the necessary information was provided but it can be done again. However, further action in the circuit court would likely be postponed until after an appeal, if one is made.
The intermediate court also ruled that, while the IAFF does represent the interests of the named plaintiffs and other affected firefighters, nothing in the WCPA addresses claims brought by such an organization. As such, the decision says each individual firefighter who claims damages from the EMT pay issue must be an individual party to the suit.
Auvil said the IAFF only got involved to obtain an injunction forcing the city to pay firefighters at the correct rates going forward and should have standing to do that.