American Federation of State v. Civil Service Commission of West Virginia

380 S.E.2d 43, 181 W. Va. 8, 29 Wage & Hour Cas. (BNA) 593, 1989 W. Va. LEXIS 39
CourtWest Virginia Supreme Court
DecidedMarch 28, 1989
Docket17929
StatusPublished
Cited by13 cases

This text of 380 S.E.2d 43 (American Federation of State v. Civil Service Commission of West Virginia) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Federation of State v. Civil Service Commission of West Virginia, 380 S.E.2d 43, 181 W. Va. 8, 29 Wage & Hour Cas. (BNA) 593, 1989 W. Va. LEXIS 39 (W. Va. 1989).

Opinions

MILLER, Justice:

This is the fourth time that the American Federation of State, County, and Municipal Employees (AFSCME) has appeared before this Court in essentially the same case. AFSCME represents over one hundred state employees who seek back pay for work performed outside of their civil service classifications.1 We concluded in AFSCME v. Civil Serv. Comm’n, 174 W.Va. 221, 324 S.E.2d 363 (1984) (AFSCME I), that work performed “out of classification” was compensable. In AFSCME v. Civil Serv. Comm’n, 176 W.Va. 73, 341 S.E.2d 693 (1985) (AFSCME II), we settled the back pay question. In a per curiam order (AFSCME III) dated May 20, 1988, we directed the Civil Service Commission (CSC) to submit a plan for implementing our prior decisions. AFSCME now challenges the sufficiency of that plan by way of a motion for contempt, contending there has been a contumacious failure to comply.

Three basic questions are presented: (1) whether the plan for back pay determinations submitted by the CSC is consistent with our directives of May 20, 1988, (2) whether the CSC is guilty of contumacious conduct, and (3) whether the jurisdiction of the CSC in “out of classification” cases is superseded by the new state employee grievance procedure contained in W.Va. Code, 29-6A-1, et seq. (1988).

I.

These cases are traceable to the early 1980s, when certain state employees [10]*10claimed they were required to work out of classification. Most of these employees worked in the Department of Human Services (DHS) and were classified as Economic Service Workers. They claimed that they performed duties associated with a higher classification level.2 In grievances filed with DHS, these employees asserted that they were entitled to be reclassified at the higher level and to receive back pay commensurate with that level.

On July 1, 1984, the CSC approved a new classification plan for all DHS employees, and most of the grievants received promotions. Ultimately, the CSC concluded that the grievants had performed work “out of classification” prior to their promotions, but denied their claims for back pay. Applying the principle of “equal pay for equal work,” as set forth W.Va.Code, 29-6-10(2),3 we held on appeal that the employees were entitled to the difference in compensation between the higher and lower classification levels. AFSCME I, 174 W.Va. at 225, 324 S.E.2d at 367. We remanded the case to allow the CSC to make individual determinations of back pay.

In reliance on W.Va.Code, 29-6-15,4 which requires most grievances to be filed within thirty days, the CSC limited back pay to the equivalent of thirty days pay. The employees immediately petitioned this Court for a writ of mandamus to require full back pay. We concluded that the filing requirements of W.Va.Code, 29-6-15, were inapplicable to “out of classification” cases, and that the employees were entitled to back pay “for the entire period during which they worked out of classification.” AFSCME II, 176 W.Va. at 79, 341 S.E.2d at 698-99.

The CSC failed to make timely back pay determinations as required, and the employees again petitioned for relief in mandamus. We issued a supplemental writ by per curiam order in AFSCME III. This writ directed the CSC to fully implement, within thirty days, a grievance procedure to resolve “out of classification” disputes.5 In addition, the CSC was to submit, within sixty days, a plan setting forth how and when it would comply with AFSCME I and AFSCME II.

On July 20,1988, in an attempt to comply with our supplemental writ, the CSC amended its administrative rules6 applicable to misclassification cases.7 Under the procedures now in effect, the CSC must determine at the threshold whether an employee is, in fact, misclassified. If the employee successfully proves misclassification, he is entitled to back pay. Claims for back pay are to be processed in accordance with a “Back Wage Computation Policy,” submitted by the CSC on the same day.

Under this back pay policy, employees are required to formally request back pay within fifteen days of the determination that they worked “out of classification.”8 [11]*11The back pay request must include the date of onset of the misclassification. A response by the employer is to be provided within fifteen days. If the onset date is undisputed, the claim is forwarded to the CSC for audit and payment. If the employer contests the onset date, the employee is required to file a grievance pursuant to W.Va.Code, 29-6A-1, et seq., to resolve the back pay dispute. The outcome of the grievance is subject to CSC review.

AFSCME filed this motion for contempt on October 27, 1988, to challenge the sufficiency of the back pay policy. Rules to show cause were issued against the CSC and the various state employers on November 1, 1988, and made returnable on December 6, 1988.

II.

AFSCME contends in its contempt motion that the back pay policy is unfaithful to the directives set out in our order of May 20, 1988. The policy is objected to for two reasons. First, AFSCME states that it improperly seeks to establish retroactive filing requirements for certain back pay claims. AFSCME also claims that the procedure outlined in the policy is unnecessarily protracted and cumbersome. We shall consider these objections in sequence.9

A.

Two classes of employees who are subject to the back pay policy have already received promotions for work performed “out of classification.” These classes include: (1) all employees of DHS who were reclassified on July 1, 1984; and (2) all other employees who were reclassified under the CSC administrative grievance procedure. For each of these classes, the July 20, 1988, back pay policy imposes retroactive filing deadlines for back pay claims. For DHS employees who were reclassified on July 1, 1984, claims for back pay were required to be filed on or before July 1, 1985. Other back pay claims subject to the policy were to be filed within six months of the date of promotion.

AFSCME asserts that the deadlines violate our prior AFSCME cases. We rejected in AFSCME II attempts by the CSC to limit artificially the recovery of back pay by employees who worked “out of classification.” There, we announced the rule that all such employees were “entitled to the salary differential ... for the entire period during which they worked out of classification.” 176 W.Va. at 80, 341 S.E.2d at 699. (Emphasis added).

We repeated this concern in AFSCME III and stressed that full back pay was recoverable not only for future, but also for past misclassifications.

“[T]he CSC has a mandatory duty to enforce promptly and effectively the ‘equal pay for equal work’ principle by operating the Grievance and Classification Review Procedure so that all employees are properly classified and receive full’ back pay or retroactive pay for the period in which they were misclassified.” (Emphasis added). 176 W.Va. at 80, 341 S.E.2d at 699.

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American Federation of State v. Civil Service Commission of West Virginia
380 S.E.2d 43 (West Virginia Supreme Court, 1989)

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Bluebook (online)
380 S.E.2d 43, 181 W. Va. 8, 29 Wage & Hour Cas. (BNA) 593, 1989 W. Va. LEXIS 39, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-federation-of-state-v-civil-service-commission-of-west-virginia-wva-1989.