Fred F. Holroyd
R. Thomas Czarnik
Scott Evans Princeton, West Virginia
Holroyd, Yost & Evans Attorney for Appellee
Charleston, West Virginia
Attorneys for Appellant
Dennis R. Vaughan, Jr.
April Robertson Boughton
Vaughan Law Firm
Charleston, West Virginia
Attorneys for Amicus Curiae,
West Virginia Municipal League, Inc.
The Opinion of the Court was delivered Per Curiam.
JUSTICES STARCHER AND MCGRAW concur in part, dissent in part, and reserve
the right to file separate opinions.
2. The West Virginia Wage Payment and Collection Act is remedial
legislation designed to protect [all] working people and assist them in the collection of
compensation wrongly withheld. Syllabus, Mullins v. Venable, 171 W. Va. 92, 297 S.E.2d
3. Terms of employment concerning the payment of unused fringe
benefits to employees must be express and specific so that employees understand the amount
of unused fringe benefit pay, if any, owed to them upon separation from employment.
Accordingly, this Court will construe any ambiguity in the terms of employment in favor of
employees. Syllabus point 6, Meadows v. Wal-Mart Stores, Inc., ___ W. Va. ___, ___
S.E.2d. ___ (No. 25325 June 9, 1999).
The City of Princeton, appellant/defendant (hereinafter referred to as City), appeals an adverse jury verdict rendered in the Circuit Court of Mercer County. The City was sued by a former employee, Donald E. Ingram, Jr., appellee/plaintiff (hereinafter referred to as Mr. Ingram), for unused sick leave pay that accrued during his employment with the City. The City assigns as error that: (1) the Wage Payment and Collection Act does not apply to a government employer, (2) the City had an unwritten policy of not paying unused sick leave to police officers, (3) the circuit court committed error in refusing to give two of the City's proffered jury instructions, and (4) the circuit court committed error in awarding attorney's fees and costs.See footnote 1 1 Based upon the parties' arguments on appeal, the record designated for appellate review, and the pertinent authorities, we reverse the decision of the Circuit Court of Mercer County.
Thereafter, Mr. Ingram filed the instant suit against the City under the West
Virginia Wage Payment and Collection Act, W. Va. Code § 21-5-1, et seq. (hereinafter
referred to as the Act). In his complaint, Mr. Ingram alleged that the Act required the City
to pay him for all accrued unused sick leave upon his resignation. The City's primary
defense was that because it had not agreed, either expressly or impliedly, to pay unused sick
leave as separation pay the Act did not require such payment. Following a trial of the matter,
the case was submitted to a jury, and a verdict was returned in favor of Mr. Ingram.See footnote 3
City then filed post-trial motions which the circuit court denied. From these adverse rulings,
the City now appeals.
The crux of the City's argument is that, under the wage payment and collection
provisions of the Act, the term employer is not defined to mean a government employer.
W. Va. Code § 21-5-1(m) (1996) states that [t]he term 'employer' means any person, firm
or corporation employing any employee. Thus, the City contends that since this definition
does not expressly state that a government entity is included in the definition of employer,
the wage payment and collection provisions of the Act do not apply to the City.
In support of its argument, the City cites to the definition of employer used in
the polygraph section of the ActSee footnote 5
. Under W. Va. Code § 21-5-5a(1) (1996) employer is
defined as follows:
Employer means any individual, person, corporation, department, board, agency, commission, division, office, company, firm, partnership, council, or committee of the state government; public benefit corporation, public authority or political subdivision of the State, or other business entity, which employs or seeks to employ an individual or individuals.
Thus, the City argues that because the wage payment and collection definition
of employer does not include within its scope governmental entities as does the polygraph
definition of this term, the Legislature did not intend the wage payment and collection
provisions to apply to government employers.
We are unpersuaded by the City's argument that the expansive definition of
employer provided in the polygraph section of the Act indicates a legislative intent to limit
the definition of employer under the wage payment and collection provisions of the Act. A
review of the legislative history of W. Va. Code § 21-5-1 reveals the following facts. The
Legislature originally enacted this statute in 1917 and made it applicable only to railroad
companies. See 1917 Acts of the West Virginia Legislature, ch. 50, § 1. A subsequent
amendment to the statute in 1923 continued the statute's limited applicability to railroad
companies. See 1923 Acts of the West Virginia Legislature, ch. 54, § 71n. In 1975, the
Legislature substantially amended this provision and expanded its application to include the
term firm, which was broadly defined to include any partnership, association, joint-stock
company, trust, division of a corporation . . . or officer thereof, employing any person. See
1975 Acts of the West Virginia Legislature, ch. 147; The term employer did not appear
in the statute until amendments thereto enacted in 1981. See 1981 Acts of the West Virginia
Legislature, ch. 212. At that time, the term employer was defined, as it is under the current
statute, to mean any person, firm or corporation employing any employee. We find it
relevant that the definition of employer added by the Legislature in 1981, actually added only
one new matter, which was the undefined term person at the beginning of the definitional
language. Thus, the true issue is whether the State and its subdivisions were intended by the
Legislature to come within the meaning of the term person.See footnote 6
While many cases decided under the wage payment and collection provisions
of the Act have primarily involved nongovernmental employers, we nevertheless have had
occasion to construe these provisions in cases involving government employers. In
Lipscomb v. Tucker County Commission (I), 197 W. Va. 84, 475 S.E.2d. 84 (1996)
(hereinafter referred to as Lipscomb I), we applied the wage payment and collection
provisions of the Act against the Tucker County Commission. In Lipscomb (I) the Tucker
County Commission, which attempted to circumvent the Act by using the statute of
limitations as a bar to the plaintiff's claim. We rejected the defense, holding, in Syllabus
point 4, that [a] claim for unpaid wages under the West Virginia Wage and Payment
Collection Act is a continuing claim, and, therefore, a separate cause of action accrues each
payday that the employer refuses to pay the wages claimed. 197 W. Va. 84, 475 S.E.2d 84.
See Lipscomb v. Tucker County Com'n (II), ___ W. Va. ___, ___ S.E.2d. ___ (No. 25847
Dec. 14, 1999) (hereinafter referred to as Lipscomb II); Lawson v. County Com'n of
Mercer County, 199 W. Va. 77, 483 S.E.2d. 77 (1996) (per curiam) (implicitly recognizing
application of Act to county).
Moreover, we have previously indicated that courts may venture beyond the
plain meaning of a statute in the rare instances . . . in which a literal application would defeat
or thwart the statutory purpose; or in which a literal application of the statute would produce
an absurd or unconstitutional result. State ex rel. Frazier v. Meadows, 193 W. Va. 20, 24,
454 S.E.2d. 65, 69 (1994) (citations omitted). To accept the City's limitation on the meaning
of employer under the wage payment and collection provisions of the Act would lead to such
a prohibited result and such would invoke constitutional equal protection concerns. In the
final analysis, [t]he West Virginia Wage Payment and Collection Act is remedial legislation
designed to protect [all] working people and assist them in the collection of compensation
wrongly withheld. Syllabus, Mullins v. Venable, 171 W. Va. 92, 297 S.E.2d. 866 (1982).See footnote 7
Accordingly, we do not hesitate to find that the Legislature did not intend to bind private
employers to certain wage payment and collection guidelines designed to protect workers,
yet exclude State and political subdivision workers from such protections. Rather, we
conclude that the Legislature intended its statutory wage payment and collection guidelines
to apply to both governmental and nongovernmental employers alike.
In contrast, Mr. Ingram argues that the Act is applicable because the employee
handbook issued by the City is silent on the issue of the payment of unused sick leave. He
further contends that there must be an express written statement indicating unused sick leave
is not to be paid as a fringe benefit. Since no such statement exists, he is entitled to the
payment of this benefit.
This Court recently addressed the issue of payment of unused fringe benefits
in Meadows v. Wal-Mart Stores, Inc., ___ W. Va. ___, ___ S.E.2d. ___ ( No. 25325, June
9, 1999). We indicated in Meadows that the Act did not make payment of fringe benefits
mandatory, and that the terms and conditions of fringe benefits were controlled by the
agreement between the employer and employee. Meadows specifically held that the terms
of employment may . . . provide that unused fringe benefits will not be paid to employees
upon separation from employment. Syl. pt. 5, in part, id. In Syllabus point 6 of Meadows
Terms of employment concerning the payment of unused fringe benefits to employees must be express and specific so that employees understand the amount of unused fringe benefit pay, if any, owed to them upon separation from employment. Accordingly, this Court will construe any ambiguity in the terms of employment in favor of employees. [See footnote 8 8 ]
___ W. Va. ___, ___ S.E.2d ___ (No. 25325 June 9, 1999) (footnote added).
During the proceedings before the trial court, the evidence was undisputed that
the City did not have a written statement on the issue of the payment of unused sick leave.
Furthermore, the facts developed during the trial indicated that the City had an unwritten
policy of never paying unused sick leave to separated police officers. Thus, no ambiguity
was shown to exit regarding the existence and terms of this unwritten policy. In fact, Mr.
Ingram acknowledged during the trial that he was fully aware of the unwritten policy. There
was no evidence of any police officer ever having been paid unused sick leave upon his/her
separation of employment with the City. During the direct examination of Mr. Ingram, by
his own counsel, the following exchange occurred:
Q. Now were you aware during the time that you were employed by the City of Princeton that upon retirement by other officers or by practice of the City that they were not getting paid sick leave when they quit or retired?
Q. And did you protest to anybody because over the ten years or so you worked that say, this policy isn't right?
A. It was discussed, we always discussed ways it could be changed but until someone actually ended their employment or retired to press the issue we didn't have--
Q. Were there other officers who retired or quit the force while you were still employed there?
A. Yes sir.
Q. And do you know what happened in so far as those officers accumulated sick pay?
A. One in particular decided to just take his sick days as they were given to him. He'd call in sick pretty regular for some period of time making sure he didn't loose [sic] out on his sick days.
In view of the uncontroverted evidence on this issue, we believe the terms of employment between the City and Mr. Ingram did not obligate the City to pay him unused sick leave upon his separation from employment. Stated simply, there was no ambiguity in the terms of his employment. Therefore, the Act could not be used to enforce the payment of Mr. Ingram's unused sick leave. Thus, it was reversible error for the trial court to deny the City's post-trial motion for judgment as a matter of law. See footnote 9 9
In view of the foregoing, we reverse the decision of the Circuit Court of Mercer
County and order judgment be entered for the City.