McCarty v. Harless
| Decision Date | 28 July 1989 |
| Docket Number | No. CC989,CC989 |
| Citation | 181 W.Va. 719,384 S.E.2d 164 |
| Court | West Virginia Supreme Court |
| Parties | , 29 Wage & Hour Cas. (BNA) 753, 114 Lab.Cas. P 56,196 Jack McCARTY, President of the Boone County Deputy Sheriff's Association, et al. v. Vernon F. HARLESS, Sheriff of Boone County, and the County Commission of Boone County, et al. |
Syllabus by the Court
1. Deputy sheriffs are entitled to overtime under the provisions of W.Va.Code § 21-5C-1 et seq. (1985) if they can prove the sheriff or county commission had actual or constructive knowledge of the overtime worked, and thus suffered or permitted them to work, although the right to recover is limited by the two year statute of limitations found in W.Va.Code § 21-5C-8(d) (1985).
2. Deputy sheriffs are entitled to include meal periods in the overtime calculation if the deputy is required to stay on site or at a particular location for the meal period.
3. Syl. pt. 2, Amoroso v. Marion County Comm'n, 172 W.Va. 342, 305 S.E.2d 299 (1983).
4. Since the sheriff and county commission have a clear legal duty to pay overtime properly performed and reported, any monies owed should be paid first from the sheriff's budget until exhausted. Once the sheriff's budget is depleted, the county commission is responsible for amounts legally owed.
Francis M. Curnutte, III, Madison, for Jack McCarty, et al.
J. David Cecil, Cecil, Barth & Thompson, Charleston, for Vernon F. Harless, Sheriff and the Co. Comm. of Boone Co. et al.
This case relates to seven questions certified to this Court from the Circuit Court of Boone County. The petitioners, present and former Boone County deputy sheriffs, filed a petition for a writ of mandamus with the Circuit Court of Boone County regarding overtime pay. Following that petition, the Boone County Circuit Court certified seven questions to this Court for assistance in resolving the dispute.
The Boone County sheriff at the time this action was instituted assumed his office on January 1, 1981. At that time, there had been one civil action filed by the deputy sheriffs of Boone County for overtime compensation. That claim was settled by the deputy sheriffs. On September 10, 1981, the respondent sheriff notified all Boone County deputy sheriff employees, by memorandum, that any overtime must be approved personally by the sheriff before such overtime would be permitted. Thereafter, on November 10, 1982, the sheriff issued a second memorandum/order reiterating his position that no deputy would be permitted to work overtime hours without the specific prior approval of the sheriff or the chief deputy.
The respondent Boone County Commission issued a memorandum dated July 31, 1981, to all employees of Boone County, including the deputy sheriffs. That memorandum stated that all employees who claimed overtime hours during any month must submit such claim at the end of the month to the sheriff for submission to the county commission for payment. The memorandum further stated that if, at the end of the pay period, the deputy sheriff determined that his or her overtime compensation was not included in the paycheck, the deputy was to notify the sheriff in writing, specifying the amount of hours for which the overtime pay was due and the date of the overtime worked. A copy of that letter was to be sent to the sheriff and to the county commission.
On October 30, 1984, the petitioners, all deputy sheriffs of Boone County, filed a petition for a writ of mandamus in the Circuit Court of Boone County, seeking an order from the court requiring the sheriff and the county commission to pay such overtime compensation which the petitioners alleged they were due, based upon hours maintained or estimated by the petitioners. The action was filed after the petitioners requested an audit to be done by the West Virginia Department of Labor.
Upon agreement of the parties, the petitioners individually submitted their alleged hours of overtime during the period based upon their own records. On July 1, 1985, the parties submitted for the court's consideration certain stipulated issues of law for the court's decision. On November 7, 1986, the Circuit Court of Boone County issued an order, presented by counsel for the petitioners, which stated that:
1. Pursuant to agreement between the parties, counsel for the petitioners will, within a reasonable time, submit to respective counsel for review and consideration information concerning when the work week for each deputy sheriff started and ended during the relevant time period pursuant to the court's prior ruling that the work week may start on any day during the week.
2. A thirty minute period for lunch shall not be considered in overtime calculations for field deputies but shall be considered for jail personnel and shall not be deducted from overtime claimed for the said jail personnel.
3. The only means by which deputies may be compensated for work performed on a holiday is a compensatory day off.
4. Any claim for overtime while a deputy was enrolled at the West Virginia State Police Academy shall not be allowed.
5. Petitioners shall be allowed to claim any overtime within a two year period prior to the filing of this case up to and including the date a final order is entered.
6. The term "overtime" shall mean hours which were actually worked and shall not include annual leave, days off, sick leave, or any type of absence during which the deputy did not actually perform his duties.
7. The sheriff and the county commission may not prevent any overtime claim by any of the petitioners due to the petitioners' failure to follow a particular proceeding for reporting overtime hours to the sheriff. Any claim for overtime which shall be proven shall be considered a valid claim for which the deputies may be compensated.
This order was entered on February 3, 1987. 1
Thereafter, on May 18, 1987, the petitioners filed an amended petition for a writ of mandamus in the Circuit Court of Boone County. The petitioners requested that the respondent sheriff and County Commission of Boone County be directed to act in their official capacities in order to pay or cause to be paid to the petitioners such overtime as they are entitled under the evidence of the case. They also asked that the court conduct a hearing to ascertain such overtime salaries due the petitioners, that the court further award interest to the petitioners from the time such wages were owed even in excess of two years, and grant such other and further relief as shall be deemed appropriate under the facts and circumstances of the case. Specifically, the petitioners argue that although W.Va.Code § 21-5C-8 (1985) provides for a two year period of limitations in which money recoverable under W.Va.Code § 21-5C-1 et seq. can be paid, they assert that they have accumulated arrearages in overtime payments for a period of time which exceeds the foregoing two year statute of limitations. Therefore, they assert that the two year period of limitations has no application and should not be applied to them because they have taken all steps short of filing a legal action to affect recovery of their overtime wages, including, but not limited to, causing an investigation by the West Virginia Department of Labor, Wage and Hour Division. 2
Rather than rule on the mandamus petition, the Circuit Court of Boone County certified the following seven questions to this Court:
1. May county employees receive overtime hour compensation for hours beyond the forty-two hour work week when there are specific direct orders from the appointing authority or his designee requiring pre-overtime hours approval, when the employees have ignored or refused to comply with the advance permission requirements, and when no notice of any kind is provided to the appointing authority that overtime hours are worked? (The circuit court answered this question in the negative.)
2. Are directives or memoranda promulgated by the funding authority and the appointing authority in county government and considering procedures for authority to work overtime and for claiming overtime sufficient to bar a claim for overtime if these procedures were not followed? (The circuit court answered this question in the negative.)
3. a. May a county employee receive overtime compensation for hours worked beyond the forty-two hour work week when such employee has failed/refused to submit monthly statements for payment of such overtime hours in violation of the specific directive of the financing authority of the county, namely, the county commission? (The circuit court answers this question in the negative.)
b. May a county employee be barred from the recovery of overtime, assuming that overtime hours were actually worked, by failure to follow any specific procedure set forth by the employer for claiming overtime, or is an employee entitled to overtime compensation merely by allegations that the overtime hours have been worked? (The circuit court would answer this question in the negative.)
4. Where county employees have worked overtime hours without prior authorization as required by the appointing authority and have further refused to submit monthly statements for overtime hours compensation in violation of the county commission's directive, and where the overtime compensation sought is not contemplated within the appointing authority's fiscal budget, which entity is responsible for such compensation for such overtime hours, if compensation is awarded, i.e., the appointing authority, the financial authority, or both? (The circuit court would answer that the responsibility is joint, the sheriff to pay from his funds designated for overtime pay, and that any amounts beyond the amount so designated are to be paid by the county...
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