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No. 31110    Joyce Gress, individually and as class representative v. Advantage Food Products, Inc., a West Virginia limited liability company; Perdue Farms, Inc., a Maryland corporation

Starcher, C. J., dissenting:

        I dissent from both of the majority's holdings on the issues of vacation pay and yield bonus pay. As I have stated previously in my dissents in Ingram v. City of Princeton, 208 W.Va. 352, 540 S.E.2d 569 (2000) (per curiam)and Howell v. City of Princeton, 210 W.Va. 735, 559 S.E.2d 424 (2001) (per curiam), the Legislature designed the Wage Payment and Collection Act to help working people in the collection of compensation for services rendered. “The West Virginia Wage Payment and Collection Act is remedial legislation designed to protect working people and assist them in the collection of compensation wrongly withheld.” Mullins v. Venable, 171 W.Va. 92, 94, 297 S.E.2d 866, 869 (1982). Through the WPCA, the “legislature has attempted to prevent employers from abusing their positions by compromising the wages of employees.” Britner v. Medical Security Card, Inc., 200 W.Va. 352, 355, 489 S.E.2d 734, 737 (1997) (per curiam).

        W.Va. Code, 21-5-9 [1975] requires that an employer's “employment practices and policies” be “in writing,” so as “to spare workers from trying to hit an ever-moving target.” Robertson v. Opequon Motors, Inc., 205 W.Va. 560, 566, 519 S.E.2d 843, 849 (1999) (per curiam). This Court further held, in Syllabus Point 6 of Meadows v. Wal-Mart

Stores, Inc., 207 W.Va. 203, 530 S.E.2d 676 (1999), that we would construe “any ambiguity in the terms of employment in favor of employees.”

         Yet, in Ingram, we created a loophole to allow employers to escape their obligation to document all employment polices and practices in writing. In Ingram, the majority created law by holding that when there is an “express” but unwritten understanding between an employee and an employer regarding the payment or nonpayment of unused fringe benefits, then such an understanding is essentially an enforceable contract between the parties and satisfies the requirements of the WPCA. This “express understanding” language is contained nowhere in the WPCA and represents judicial activism at its very best.

        The ruling in Ingram and its progeny suggests a balancing of interests between employers and employees. Nothing in the WPCA requires such a “goose-gander” rule of fairness. When setting the terms and conditions of employment, employers usually have the upper hand and the WPCA in its undiluted form acknowledges this inequity in power. To have employers comply with the language of the WPCA should be no hardship from which we have to create exceptions.

        It is undisputed in the instant case that the appellant's actual policy for vacation days was silent about what would happen to any earned but unused vacation days when an employee concluded her employment with the appellant and the appellant's policy was also silent as to whether and how vacation days would accrue in years two, three, and four of employment. The silence of the appellant's policy should have been construed against the appellant and the appellee should have been granted 2.5 days of vacation pay.

        Applying the “express but unwritten” language of Ingram to this case serves to only compound our initial error.

        I also dissent to stripping the appellee of her rightfully earned bonus pay.

        As quoted in the majority's opinion, “ the WPCA does not create a right to fringe benefits. Rather, it reserves the question of fringe benefits to the bargaining process between employers and employees.” Meadows v. Wal-Mart Stores, Inc., 207 W.Va. at 216, 530 S.E.2d at 689. The WPCA allows employers to decide when fringe benefits vest, as long as their policies do “not contradict the provisions of this article.” W.Va. Code, 21-5-1 [1987].

         Allowing an employer to decide when a fringe benefit accrues without any leavening from the WPCA results in a worker not receiving pay that she earned simply because she was not employed by the appellant on the exact date that the appellant distributed the yield bonus checks. According to the appellant's own representatives, even if an employee had worked an entire month, and is not present, for whatever reason, on the day that the appellant distributes the bonus checks, the employee's check is voided.

        I doubt that the Legislature intended the WPCA to allow an employer to void an employee's earned wages simply because that employee is not present when wages are distributed.   (See footnote 1)  Such a policy is draconian and medieval and for this Court to approve of such a policy flies in the face of the remedial nature of the Wage Payment and Collection Act.

        To argue that the appellant's policy of voiding yield bonus checks is the result of an agreement between the appellant and the appellant's workers defies common sense and what most individuals face in the job market. We do not live in a world of equal bargaining power between employers and employees. Most of us cannot bargain for the terms and conditions of our employment. Instead, most workers have to take their jobs where they can find them and they should not have to work under pre-New Deal conditions.     
        I therefore dissent to the majority's decision to deny Ms. Gress her hard-earned wages.

Footnote: 1
    According to the appellant's own representatives' deposition testimony, an employee's yield bonus check was voided if the employee were absent for any reason - out sick or on vacation - on the day that yield bonus checks were distributed, even if that employee had worked the entire prior accounting period.