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W.Va. SC rules in favor of county on sick leave

By Jessica M. Karmasek | Oct 3, 2011


CHARLESTON, W.Va. (Legal Newsline) - The West Virginia Supreme Court of Appeals ruled last week that a circuit court order awarding more than $400,000 to former Cabell County Jail employees be reversed.

Cabell County Sheriff Kim Wolfe, the Cabell County Sheriff's Office, the Cabell County Commission and the Cabell County Civil Service Commission appealed a June 24, 2010 order by the Cabell County Circuit Court.

In the order, the County's motion for a new trial was denied and judgment was entered in favor of Nathaniel Adkins, former correctional officers and other former employees of the Cabell County Jail in the amount of $406,932.26. The amount represents unpaid, accumulated sick leave, liquidated damages, prejudgment interest, costs and attorney fees.

The jail employees' positions were terminated in December 2003 when the Cabell County Jail closed, and its prisoners were transferred to the new Western Regional Jail under the direction of the Regional Jail Authority.

Although many jail employees obtained employment at the new facility, the Regional Jail Authority refused to recognize their accumulated sick leave at the county jail.

The County contends it should have been granted judgment as a matter of law based on the following written provision of its sick leave policy: "When the services of an employee have been terminated, all sick leave credited shall be canceled as of the last working day with the department."

The state's high court, in an opinion filed Thursday, said the jail employees' accumulated sick leave as of the date they were terminated with the County did not constitute unpaid wages to which they were entitled within the meaning of the West Virginia Wage Payment and Collection Act.

The Court reversed the June order and ruled that the case be remanded to the circuit court with directions to enter judgment as a matter of law in favor of the County.

"In this action, even without considering the written policy of cancelling accumulated sick leave upon termination, the evidence demonstrates that the jail employees were aware that sick leave could only be used for 'bona fide personal illness absences,' subject to other provisions in the case of maternity or retirement," Justice Menis Ketchum wrote in the Court's 19-page ruling.

The Court said it was "plainly stated" in the attachment to a memo log file given to the jail employees.

The evidence also demonstrates that no representations of any kind were ever made to the jail employees that they would receive compensation for accumulated sick leave upon termination from employment, the Court said.

"During the trial, the testimony revealed that no employee, including jail employees, had ever been paid sick leave benefits upon termination. Thus, although the terms of employment between the County and the jail employees consisted of various documents and memoranda, nothing in the terms of employment provided the benefit the jail employees now seek," Ketchum wrote.

The Court held that "where there is no provision in a written employment agreement, personnel handbook, personnel policy materials or employer documents granting employees payment for unused, accumulated sick leave upon termination from employment," the unused sick leave, upon termination from employment, is not a vested, nonforfeitable fringe benefit under the Wage Payment and Collection Act.

Therefore, it is not payable to the employees, it said.

"No representations of any kind were ever made to the jail employees that they would receive compensation for accumulated sick leave upon termination from employment. It was never part of the terms of employment," Ketchum wrote.

"Whether unpaid, accumulated sick leave is payable to an employee upon termination is determined by the terms of employment and not by the provisions of W.Va. Code, 215-1 [1987]."

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