Kucera v. City of Wheeling, 13352

• Citation: 158 W.Va. 860,215 S.E.2d 216
• Decision Date: 18 March 1975
• Docket Number: No. 13352,13352
• Court: Supreme Court of West Virginia
• Parties: , 22 Wage & Hour Cas. (BNA) 303, 77 Lab.Cas. P 53,759 Robert KUCERA, etc., et al. v. The CITY OF WHEELING, etc.

Page 216

215 S.E.2d 216

158 W.Va. 860, 22 Wage & Hour Cas. (BNA) 303,

77 Lab.Cas. P 53,759

Robert KUCERA, etc., et al. v. The CITY OF WHEELING, etc.

No. 13352.

Supreme Court of Appeals of West Virginia.

March 18, 1975.

Rehearing Denied June 13, 1975.

Syllabus by the Court

1. A release prepared by an employer which provides that for a consideration an employee will release and discharge his employer from any and all claims for wages relating to overtime compensation is against public policy, as specifically provided in W.Va.Code, 1931, 21--5C--8, as amended, and is unenforceable.

2. A pay schedule for firemen formulated by a city manager pursuant to authority specifically granted to him in a special legislative charter is lawful so long as such schedule reflects compliance with the minimum wage and maximum hours requirements of W.Va.Code, 1931, 21--5C--2 and 3, as amended.

Hostler, Logsdon & Shinaberry, Stanley M. Hostler, Charleston, for appellants.

John Marshall, III, and George B. Vieweg, III, Wheeling, for appellee.

CAPLAN, Justice:

Robert Kucera, individually and on behalf of all other persons similarly situate as paid fire fighters employed by the City of Wheeling, plaintiffs, instituted an action in the Circuit Court of Ohio County against the City of Wheeling, a municipal corporation, defendant, seeking a judgment declaring their rights to certain sums of money alleged to be due and owing them as salary. That action was instituted on December 28, 1967 and, having been extended by an appeal and a mandamus action in this Court, final judgment was entered on May 15, 1972. It is from that judgment that this appeal is prosecuted.

The minimum wage law, prescribing minimum wage and maximum hours standards for employees, was enacted by Chapter 39, Acts of the Legislature, Regular Session, 1966, now designated W.Va.Code, 1931, 21--5C, as amended. This act, effective January 1, 1967, requires the payment of a designated minimum hourly wage by employers and the payment of overtime compensation for hours worked in excess of firty-eight during a work week.

Upon the enactment of the aforesaid legislation the City of Wheeling refused to pay such firemen pursuant to the overtime provisions of the statute. The ground for its refusal to pay such compensation was that the plaintiffs were paid fire fighters of an agency of the state and were, therefore, exempt from the provisions of the statute by reason of W.Va.Code, 1931, 21--5C--1(f)(12), as amended. As a result of such refusal the plaintiffs instituted the aforesaid action seeking a declaration of their rights to the benefits of the recently enacted minimum wage law.

The Circuit Court of Ohio County entered judgment for the defendant city and the plaintiffs appealed to this Court. In Kucera et al. v. City of Wheeling, 153 W.Va. 531, 170 S.E.2d 217 (1969), the Court reversed the judgment of the Circuit Court of Ohio County, holding that the City of Wheeling was not an agency of the state and was, therefore, subject to the requirements of the said minimum wage law in relation to wages of firemen. Upon remand the Circuit Court of Ohio County entered an order, dated April 27, 1970, declaring the method for computing overtime pay due the plaintiffs.

In the interim the City of Wheeling had passed an ordinance granting all of its employees a wage increase but withholding such raise from the firemen, pending the outcome of the case then before the Supreme Court of Appeals. That case was decided by this Court on July 15, 1969 and on December 2, 1969 the defendant city, by William S. McFadden, Chief of the Wheeling Fire Department, distributed to all personnel of the fire department a SPECIAL NOTICE, the subject of which was 'Back

Wages, Retroactive to July 1, 1969'. Therein the chief advised the firemen as follows: 'The Back pay is available to each as an individual in accordance with the attached release. If you, as an individual, desire to obtain your Back wages in accordance with the attached release, you can make your desire known to Mrs. Mary Warden, Secretary to the Chief . . . You Must appear at the office to sign the release and have it notarized.' (Emphasis supplied) The release referred to in said notice is in the following form:

RELEASE

That for and in consideration of the sum of _ _ Dollars ($ ), the receipt of which is hereby acknowledged, I, _ _, an employee of the Fire Department of The City of Wheeling, do hereby release and discharge The City of Wheeling from any and all claims relating to overtime compensation under West Virginia Code 21--5C--3 for that period of time from July 1, 1969 to November 1, 1969.

(Acknowledgment)

On an accompanying Statement of Earnings and Deductions, included in the record as plaintiffs' Exhibit #2, is the following notation: 'Back pay raise: for the period 7--1--69 to 10--31--69 inclusive.' Most of the fire fighters employed by the City of Wheeling, desiring to receive the wage increase granted by the city, effective July 1, 1969, executed the aforesaid release. Included in this group was Robert Kucera. These firefighters did receive their back wages in the amount set forth in the release agreement. The release agreement sought to 'release and discharge The City of Wheeling from any and all claims relating to overtime compensation under West Virginia Code 21--5C--3 for that period of time from July 1, 1969 to November 1, 1969.' It is the contention of Kucera and the other appellants that this release from overtime pay was null and void as being contrary to the public policy of the State of West Virginia as specifically provided in W.Va.Code, 1931, 21--5C--8, as amended.

By a memorandum dated October 31, 1969, the City Manager of the City of Wheeling notified the members of the fire department that they would be paid on the basis of a sixty hour week; that for the first forty-eight hours they would receive regular hourly pay; and for the remaining twelve hours the rate would be one and one-half times the regular hourly rate. Attached to the memorandum was a pay schedule for the department which revealed an hourly rate in excess of that required by the statute. Also revealed was the overtime rate which was one and one-half times the regular hourly rate.

It is the contention of the appellants that the method used by the city in computing overtime pay for the firemen was contrary to the requirements of W.Va.Code, 1931, 21--5C as amended. Implicit in this contention is the assertion that the city erroneously established the regular hourly rate.

Two questions are presented. First, whether the release of overtime pay for the period of July 1, 1969 to November 1, 1969 is null and void; and, second, whether the pay schedule for the firemen, formulated by the City, is contrary to the provisions of W.Va.Code, 1931, 21--5C as amended.

The circuit court held that the release was not null and void as a violation of W.Va.Code, 1931, 21--5C--8, as amended. That court further held that the city manager had the authority under the city charter to determine and set the rate of pay for city employees; that he did so act; and, that since the hourly rate designated was in excess of that required by statute and the wage schedule did provide for the payment of time and one-half for overtime hours worked, the court had no authority to interfere. The appellants excepted to these findings and prosecuted this appeal.

Considering first the validity of the release executed by the firemen relative to overtime pay for the period of July 1, 1969 to November 1, 1969, it is pertinent to examine W.Va.Code, 1931, 21--5C--8, as amended. That statute reads:

Any employer who pays an employee less than the Applicable wage rate to which such employee is entitled under or by virtue of this article shall be liable to such employee for the unpaid wages; an agreement by an employee to work for less than the applicable wage rate is hereby declared by the legislature of West Virginia to be Against public policy and unenforceable. (Emphasis supplied)

In addition to the public policy consideration, the appellants contend that they executed the release under duress.

Upon examination of the Special Notice alluded to above and quoted in part, it is clear that the firemen were mandated to execute a release, giving up all claim to any overtime compensation, if they desired to receive the back pay raise for the period between July 1, 1969 and November 1, 1969. If they signed the release they received the pay raise; if they did not sign, thereby refusing to relinquish their claim to overtime pay for the applicable period, they simply would not receive the pay in the amount to which they were entitled. The increase in pay for city employees was provided for by the city. It was not required to increase such wages, but when it did, the firemen were entitled to payment of wages in accordance with the requirements of the wage and hour law, in the same manner as all other city employees. Therefore, it cannot be questioned that requiring the firemen to sign the release, in the circumstances herein described, constitutes duress.

Reasoning that W.Va.Code, 1931, 21--5C--8, as amended, was not intended to cover this situation, the circuit court held that the release, whereby the firemen gave up their claim to overtime pay, was valid. We disagree. We also reject as clearly untenable the contention that because the hours for which the raise was to be paid had already been worked, the amount to be received was in the nature of a gratuity.

While the City of Wheeling was under no compulsion to grant its employees a raise in pay, State ex rel. Kucera v. The City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969), it chose to do so. When it was decided by this Court, Kucera et al. v. City of Wheeling, Supra, that the firemen were covered by the state wage and hour law, they became entitled to the pay raise on the same basis as were other city employees. Admittedly,...