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West Virginia Supreme Court

The West Virginia Supreme Court hears arguments in a case in which state employees claim they were shorted pay in 2017 on March 16.

The West Virginia Supreme Court ruled against a group of state employees who had claimed the transition to a bi-weekly payment schedule had resulted in them and others losing about five days’ worth of pay in 2017.

In a 5-0 decision, the court ruled the employees hadn’t provided any substantial evidence to prove they had lost pay, or that elected officials had received “bonus payments” as the state transitioned from a semi-monthly payment schedule to the bi-weekly schedule from 2015 to 2017.

The court affirmed a decision handed down by Senior Status Judge Thomas Evans III in 2018.

Evans presided in Kanawha Circuit Court on a temporary basis when Judge Jim Stucky stepped away from the bench due to illness and eventually retired. Kanawha residents elected Judge Tera Salango to complete what had been Stucky’s term in November 2018. Stucky died in March 2019.

The justices heard arguments in the case on March 16.

The employees filed a lawsuit in 2018 against the offices of five of the state’s seven constitutional officers — governor, auditor, treasurer, secretary of state and attorney general — as well as the Supreme Court, representing the offices the employees worked in at the time the lawsuit was filed.

State employees were paid twice a month prior to 2014, when the Legislature adopted a bill that moved the pay schedule to every two weeks.

The transition took place in three waves in 2015, 2016 and 2017, respectively.

The switch to a bi-weekly pay schedule took place along with the transition to the wvOASIS payroll system, but wvOASIS was not at-issue in the case.

The employees who filed the lawsuit were part of the third wave in 2017, according to the court opinion.

The transition in 2017 took place during the course of pay periods in May and June of that year. Because of the calendar structure, the state had to compensate state employees for three days of work that fell between the old twice-a-month pay period and new bi-weekly schedule.

Since then, state employees have received the same regular payments every two weeks based on their annual salary, according to the court’s opinion.

The state employees claimed that for the calendar year of 2017, they did not receive the entirety of their salaries.

Justice Bill Wooton, who wrote the court’s opinion, said the employees’ claims largely appear to be based in confusion about how the new system worked.

Under the twice-monthly pay schedule, employees received their paychecks on or near the 15th of each month and on the last day of each month. That meant that they received the last paycheck that included their salary in a given year on the last day of December.

Under the bi-weekly schedule, employees may not receive their pay for a given calendar year until the first week of January, depending on when the payday lands on the calendar.

“Under the new system, which as noted is uncoupled from the calendar, the same result obtained, although it looked different because the pay cycles were no longer fixed from the 1st to the 15th of the month and the 16th to the final day of the month,” Wooton said.

That confusion was compounded in 2017, when half of the calendar year was under the old payment schedule and the other half under the new schedule.

Wooton also said the employees didn’t provide any evidence, or petition the circuit court for time to collect evidence, supporting their claim beyond an affidavit from an accountant who the court said provided “no specific facts, only a few totally unsupported generalities.”

Adding up their paystubs from 2017 may have come up with a number less than their salaries, but adding in the payment from early January 2018 would have come up with the correct salary, with at least one of the employees getting paid around $76 more than their listed salary, based on evidence state officials presented, Wooton said.

He also said paychecks under the new bi-weekly payment system would be smaller because there are more pay periods in a year under the system.

The employees also claimed elected officials had received a “bonus payment” amid the switch, but Wooton said that amounted to a make-up payment to officials for that same lapse in pay during the transition to bi-weekly pay periods.

Elected officials’ pay is handled different from state employees since officials’ salaries are set by the Legislature and are paid in present. State employees are paid in arrears, meaning they’re paid after work is completed.

Elected officials’ pay also doesn’t fluctuate based on education, experience and other factors relevant to state employees’ salaries, Wooton wrote.

“The critical fact here — an undisputed material fact — is that both elected officials and state employees received every penny of salary they earned in 2017,” Wooton said in the opinion.” To quote the circuit court once more, ‘Everyone is being paid. It is just a question of timing – a few days difference.’”

Justice Tim Armstead disqualified himself from presiding in the case as he was a member of the House of Delegates when the Legislature adopted the 2014 bill changing the pay schedules.

Mason Circuit Judge Craig Tatterson presided in Armstead’s place.

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