*1 530 S.E.2d MEADOWS,
Kay Plaintiff K.
Below, Appellant,
v. INC., STORES, Defendant
WAL-MART
Below, Appellee. Austin,
Beverly Judy Individ- and Karen Representatives,
ually and as Class Below, Appellants,
Plaintiffs
v. Corporation, Defendant
Sheetz
Below, Appellee. al., Remsberg, Plaintiffs et
Christine
Below, Appellants,
v. Corporation, Defendant
Kmart
Below, Appellee. Hutzler Contessa
Elizabeth Besaw Vanorsdale, Plaintiffs
Besaw
Below, Appellants,
v. Molding Corporation, a West
Easton Corporation,
Virginia Defendant
Below, Appellee. Stewart, Plaintiff
H. Vance
Below, Appellee, Co., Equipment dba Waco Scaf-
Waco Equipment,
folding Defendant &
Below, Appellant.
Nos. 25325-25329. Appeals
Supreme Court Virginia.
West 26, 1999.
Submitted Jan. 9, 1999. June
Decided Opinion of Justice
Dissenting Chief 16, 2000. Feb.
Stareher
Concurring Opinion of Justice 9, 2000.
Davis June
205 *4 Jr., Steptoe, M. Esq., Rodney
Robert L. Bean, Esq., Johnson, Steptoe & Virgi- West Commerce, nia Chamber of for Amicus Brief. MAYNARD, Justice: These five cases have been consolidated to determine the issue whether the West Virginia Wage Payment Act, and Collection (hereinaf- §§ W.Va.Code 21-5-1 to 21-5-18 Act”), ter “the requires WPCA” “the em- ployers pay employees unused sick leave or vacation in the same manner as wages, regardless of applica- the terms of the employment policy, ble upon separation from consideration, After careful we Instead, conclude that it does not. spe- cific concerning fringe benefits of *5 Gregory Sproles, Esq., Breckinridge, W. applicable employment policy determine Summersville, Virgi- Sproles, Davis & West whether the benefits at issue are in- nia, Attorney for Meadows. “wages” cluded the term under Wolfe, WPCA. Esq., Sopranik, A. Roger Victoria J. Charleston,
Esq., Kelly, Jackson & West Vir- Stores, Attorneys ginia, for Inc. Wal-Mart I. FACTS Sehiavoni, Esq., Robert J. David M. Ham- The salient facts each of the cases be- mer, Hammer, Sehiavoni, Esq., Ferretti & us fore follows. Martinsburg, Virginia, Attorneys West for Kay No. K. Meadows v. 25325— Austin, al., Judy, Remsberg, et Hutzler and Stores, Wal-Mart Inc. Vanorsdale. Meadows, appellant, Kay K. was em- Geffert, Garry Martinsburg, Virgi- G. West ployed by Stores; appellee, Wal-Mart nia, Attorney Judy and Austin. Inc., September resigna- 1990 until her Owen, Fenwick, D. Esq., Richard J. David tion in October 1996. Meadows’ sick leave Goodwin, Charleston, Esq., & Goodwin West governed by was Wal-Mart’s “Illness Protec- Virginia, Attorneys Corporation. for Sheetz Policy.” portions The relevant of that policy state: Blalock,
Larry Esq., Kelly, W. Jackson & Illness Protection Hours Accrual Martinsville, Attorney Virginia, New West Corporation. for Kmart Regular Hourly begin full-time Associates to accrue Illness Protection Hours immedi- Martin, III, Esq., Clarence E. Susan R. ately upon employment. Accrued hours Snowden, Seibert, Esq., Martin Martins- & may are not “available” not be used burg, Virginia, Attorneys for West Easton until the Associate has six worked con- Molding Corporation. tinuous months. Arnold, Esq., Parkersburg, Barbara G. (cid:127) Rate of Accumulation —Illness Protec- Virginia, Attorney West for Stewart. tion Hours accrue at the rate .023077 Mannion, Esq., Thomas P. Brian D. Sulli- rate, hours for each service hour. At this van, Cleveland, Esq., Reminger Reminger, & average Associates accumulate of one- Ohio, Attorneys Equipment for Waco Co. flé) month, day per half work or a total of (6) average days year.... per six work Snowden, Esq., Susan R. Martin & Sei- (cid:127) bert, Virginia West Manufacturer’s Associa- Maximum Accumulation —Illness Pro- Association, Virginia may up tion and West Retailer’s tection Hours to a accumulate Amici Brief. maximum of 192 hours. (cid:127) sick is not provide can that unused Time —Accrued to Personal Conversion employee’s separation payable upon an beyond maxi- Protection Hours Illness auto- of 192 hours will mum accumulation
matically may Protection Benefit conversion rate sence (cid:127) son/daughter who is Qualifying The H H [*] [*] Providing be used from work is due to: Associate’s convert to Personal Time :I: [*] without restriction.... Illness/Injury care of 50%. Personal Time [*] [*] ill/injured. illness/injury. ‡ [*] be used when —The [*] [*] Associate’s Illness [*] [*] at a ab- tives, Austin, individually benefit Inc.1, It is from this order that Meadows Sheetz al No. 25326 — tin, days sentatives were for less than a appellants, individually and as class provides its package that includes sick or Beverly Judy and Karen Aus- vacation time. Beverly Judy Sheetz and as class year before termination. Corporation appellee, Sheetz’s representa- and Karen repre- appeals. person- Sheetz, regarding days part: sick states Termination employees may eligible to one All earn will not Protection Hours Unused Illness every personal day four sick or after to Associates termination employment with the months of continuous required by employment except where company. state law. periods month are: four resignation, At of her Meadows the time through April 30, May 1 —January 1 — horn's of sick leave for had accumulated 192 through through August 31, September 1 — paid for paid. She was which she was December 31 which had been converted to the sick leave *6 diming Eligibility is on hours worked based un- personal Meadows instituted the time. period. employees All who the four month of Nich- derlying action in the Court Circuit (sic) average of 32 or hours work and more County alleging olas that Wal-Mart failed per during period will earn one week separa- sick pay her accumulated leave day. paid sick/personal employment from violation days may Siek/personal accumulate WPCA. beyond days, which no further twelve total By circuit October will occur until the total falls accumulations granted motion for sum- court Wal-Mart’s employee If not below twelve. an does mary circuit court judgment. The held any personal sick or have accumulated part: any wage days, he or she will not receive § enacting Virginia 21-5- West Code payment any day days in which he or seq. legislature 1 et. did not intend for work, report or did not unless other- she every employee paid for unused sick to be approved the Vice President of wise they their em- leave at the time terminate employee Human Resources. Should an ployment, it to ensure that but intended personal days and with accumulated sick wages. paid would To de- be company, payment no will be leave the employers in a might leave cide otherwise days. these made for they may not to position wherein decide pro- policy pertaining to vacation time The employees, pay offer sick benefits them vided: require employers Act not since the does Hourly employees and assistant man- store employees fringe to offer their benefits agers may up to three weeks vacation earn Consequently, employ- first instance. following schedule: under the can, policy through an or ers (1) anniversary 1st date. week after One means, employee’s entitle- other limit an (2) anniversary 3rd exclusively Two weeks after pay to instances ment to sick and, therefore, employee is ill date. when the stores. Sheetz,
1. Inc. convenience operates anniversary agreed Three weeks after 10th in writing “[a]ny Plaintiffs personal days date. during employ- accumulated day ment and not taken before the last Hourly Employee a. Vacation paid.” work not w[ould] Consistent Hourly employees will earn vacation on Agreement, with that policy pro- Sheetz’s anniversary By their date. this we mean vides: “Should an with accumu- vacation, hourly employee that to earn a an personal days lated and sick leave the com- employed by must be for 52 Sheetz consec- pany, payment no will be made for these utive weeks. days.” Agreement policy The are un- termination, At appellants not were ambiguous providing that accumulated unused vacation time because had personal days sick or compen- will employed by not been for 52 Sheetz consecu- upon separation sated employment, from tive weeks. whatever surrounding the circumstances result, As a appellants filed a com- separation. plaint against Sheetz the Circuit Court of Agreement 4. The does contradict the Berkeley County alleging that Sheetz’s fail- provisions of the WVWPCA. pay ure to unused vacation time constitutes appellants appeal now both orders to violation of appellants the WPCA. The sub- this Court. sequently complaint allege amended their pay that Sheetz failed to them for unused Remsberg, No. 25327—Christine siek/personal days upon By termination. or- Corporation et al. v. Kmart 20,1997, May granted der the circuit court appellants unperfeeted are an class of summary judgment on behalf of Sheetz former Kmart all of whom re- that, pay, concluding issue vacation signed discharged appellee were from the Virginia Wage Payment 2. The West They Kmart. fall into two subclasses: those (W-Va.Code § Collection Act 21-5-1 et separated employment who before their seq.) requires employer an em- dates, year anniversary one and those who ployee wages accrued benefits separated after those employee’s within 72 hours of that dis- appellants employed dates. The were 21-5-4(b) (1996). charge. W.Va.Code Kmart under a vacation contained in a Act, however, require does not posted policy handbook and notices. The pay wages provides, “Kmart Associates Handbook” *7 not have accrued. part, following: policy 3. Sheetz’s employees is that are according Paid vacations are earned to an paid entitled to only vacation after length associate’s of service. employed
have been at Sheetz for 52 con- work Associates whose schedules are less secutive weeks. week, per including than 40 hours part- associates, 4. eligible Because Plaintiffs had not been em- time receive ployed paid pro-rate at for 52 vacation on a Sheetz consecutive basis at rate weeks equivalent average weekly to their of respective separa- the times of hours their tions, period prior work for an 8-week to their any Plaintiffs had not earned vaca- following vacation in accordance with the tion and compensa- thus are not entitled to schedule: tion for unused vacation under the Act. Company Service Total Fiscal Vacation Earned By order December the circuit granted summary judgment court on behalf (5 days) 1 of service, 1 week year 2 but less than years on siek/personal pay Sheetz the issue of pertinent part, and held in (10 days) 2 service, weeks years but less than 5 years Act ... “require fringe does not ben- contrary efits to be any calculated (15 days) of service, 3 weeks years but less than 15 years agreement between an and his employees which does not contradict the (20 days) service, weeks years but less than 25 years provisions of [the Id. 21- WVWPCA].” 1(e). 5— (25 days) and over 5 weeks years summary judgment Kmart one on behalf of con- time carried from
Vacation Company part: year cluding, into the fiscal next. The time that is not will vacation opinion is of that there is no This court taken. requires in the “accru- provision Act which * * Hi * * Hs as the vacation al” of benefits such actually Act herein and that benefit description policy posted A of this is on the recognizes and authorizes nonaecrual of Company bulletin board. provid- through specifically such benefits policy accompanying An in effect Janu- contained ing “nothing that: herein shall 31,19952 ary through January elaborat- require to be calculated ed, contrary any agreement between em- provision of Associates who retire under his which does not ployer employees paid Company’s Pension Plan will be of this contradict article.” year, vacation due for all the current fiscal any paid previously less vacation taken appeal appellants this order. addition, year. fiscal those the current associates who elect and their retire Besaw Hutzler and No. 25328—Elizabeth January payroll on termination date Besaw Easton Contessa Vanorsdale eligible paid all vacation will be Molding Corporation benefit. Those who were rated from Kmart tuted ing employment Pursuant anniversary Associates who ment month of service ceived current ply- No taken. from the ates must be associate On October cal death, due to the }Í2 year, a [******] [******] for the next fiscal sick/personal for unused class the same to this year In the less Company upon discharge. after notice date were not formula. after one action in 25, 1994, any paid vacation due for each policy, resign sick/personal policy provisions completed during event prior time will be year Berkeley payroll year. vacation to their one or are terminated will be were resignation appellants insti- separated paid To receive December any vacation paid accord- time, County }Í2 associate’s previously who paid any will the fis- associ- is re- sepa- their from year pay- Cir- full ap- worked for the Molding Corporation. are former saw taken two must be propriate tion. ployment, 40.2 After employment, 40.3 After three changes to be made. 40.1 employees are not Elizabeth applicable Vanorsdale, week required *8 (2) reasons, During together. weeks paid given changes Besaw Hutzler and Contessa Be- provides: portion effect appellee vacation. One these paid first successive first One to be made. employee is your supervisor eligible (3) years of appellants vacation. during of the two weeks cannot be for less year month Both is entitled appellee, for a appellee’s months employment, in this prior than a For appropriate year entitled appellants’ successive paid appellants produc- for Easton notice notice vaca- vaca- year. ease, em- one ap- paid maximum cuit Court on former 40.4 Two weeks is the va- behalf of employee can separated employment from Kmart cation time that an take. with (4) By years employment, four an years within After five that date. granted court can a third week vacation November the circuit take company policy copies posted 2. on Feb- The record contains of annual above was instituted as time, dating February ruary vacation notices 1993. Prior to that time from January year pro through rated on a The listed for the current fiscal was half substantially throughout year change This material are this basis. is not above the same pro period. The set forth of this case. time rata formula decision vaca- require employer to offer does not count as an excused paid. This will not Moreover, employees. tion benefits its absence. leave of Payment Act does Wage and Collection in the vacations must be taken 40.5 The requiring its from prohibit vacations will following year earned. year employ- complete one employees to to accumulate. not be allowed eligible to receive before ment for no reimbursements 40.6 There will be vacation benefits. vacations, days, or sick good attendance days not taken. 25329—H. Vance Stewart Case No. ap- employment, from Upon separation Scaffolding and v. Waco any vacation time. paid
pellants were Company Equipment result, appellants suit in the filed As Berkeley County alleging a Court Circuit us, appellee, H. In the last case before appellee’s for the violation of the WPCA Stewart, employed appel- was Vance fringe benefits ca- pay all accrued failure lant, Equipment Scaffolding and Com- Waco upon separation from pable of calculation eight and half pany, approximately one for originally appellants employment. on Novem- years he was terminated3 before summary judgment on October moved for subsequently appellee 1995. The ber issue had basis that the same against underlying action brought appellee in litigated against been alleging appellant that the failed appellant Corp. In that Molding Simpson v. Easton days compensate him for unused sick within ease, Betty Simpson, sued for plaintiff, seventy-two separation from em- hours appel- pay which the recovery of vacation applicable provisions of the ployment. The upon separation pay had failed to her lee policy stated: appellant’s sick leave appellants, from Like illnesses, physical refers to Sick Leave appellee for less Simpson worked for the off-the-job injuries which conditions year. In accordance with W.Va. than a employee to miss time require the appellee made an offer of R.Civ.P work. Simpson accepted. Conse- judgment which of six are allocated a total Employees judgment quently, the circuit court entered days year per sick calendar company pursuant to Rule 68. Simpson favor of days completed 90 of ser- they have after par- originally court denied the The circuit vice. summary judgment. ties’ cross-motions Manager, at valid. parties again filed cross-motions Illness must be his/her discretion, may certifi- appel- ask for a doctor’s summary judgment on the issue day of ab- pay vaca- third consecutive obligation under the WPCA cate on the lee’s employ- upon termination sence. tion benefits
ment. On
court
granted
November
summary judgment on behalf
24, 1997, the circuit
[*]
[*]
#
v
[*]
court concluded
rele-
appellee. The
of an immediate
of illness
In the case
part:
vant
member,
in accordance
family
Family and Medical
provisions of the
benefit
Vacation
Act,
use
employees during the
Leave
his/her
Easton offered
its
days available. Addition-
sick
company.
own unused
with the
Plaintiffs’
out of vaca-
however,
required can be taken
benefit,
days
al
only provided
This
was
*9
available,
unpaid at the dis-
days
completed at
one
employees who
least
to
subject
our
Manager
to
company....
cretion of
year
of
Policy.
Family
Leave
Act
Personal
Wage Payment and Collection
29, 1990),
(March
Court,
according
5-2.10
appellant
to 42 C.S.R.
states
3.
In its brief to this
paid
be
all
laid off shall
who is
"[a]n
final
appellee was "laid-off.” In its
that
order,
regular payday
however,
wages
next
later than the
court states that the
the circuit
channels,
by
if re-
through regular pay
or mail
finding
appellee
This
of fact
was "terminated.”
any
quested.”
challenged by
appellant.
In
is not
case.
days
(1994).
Any
during
Also,
unused sick
allocated
ployment
Plaintiff was terminat-
—whether
really
ed or laid off is not
“wages”
issue for this
The term
compensation
means
ruling
employee is entitled to
com-
for labor
or services rendered
an em-
—an
pensated for that
controlling pro-
ployee,
absent a
whether the amount is determined
vision of
says
time, task,
a contract
he is not
on
piece,
commission or other
entitled to it.
basis of calculation. As used in sections
four, five, eight-a, ten and
[§§
twelve
21-
The circuit court
appellee
awarded the
5-4, 21-5-5, 21-5-8a, 21-5-10 and 21-5-
$7,642.56for accrued sick
leave
addition to
12],
article,
of this
“wages”
the term
shall
thirty days
liquidated
damages in the
also include
then accrued
$6,033.60.
amount of
capable of
payable
calculation and
directly
II. STANDARD
employee: Provided,
to an
OF REVIEW
nothing
That
require
herein contained shall
fringe bene-
Four of the cases herein were dis
fits to
contrary
be calculated
any
posed
summary
of below on
judgment. The
agreement
between an
and his
case,
25329,
record
the fifth
No.
indicates
employees which does not contradict
it also
disposed
was
summary
provisions of this article.
judgment.4 “A
entry
circuit court’s
of sum
”
mary judgment
Sylla
is reviewed de novo.
“fringe
The term
benefits” is defined
1,
189,
bus Point
Peavy,
(í)
Painter v.
192W.Va.
mean,
W.Va.Code
“any
21-5-1
bene-
In
case number
appar-
judgment
the circuit
adequate
court
opportunity
have had an
ently granted summary judgment
sponte
sua
develop
probative
all of the
facts which relate
that,
appellees.
This Court has stated
claims,
"[o]r-
respective
to their
grant
the court
dinarily, in the absence of a written motion for
summary
judgment under Rule
W.VA.
summary judgment by
parties,
one
R.C.P,
sponte.
sua
sponte
grant
court is not authorized sua
case,
granted
judgment
the instant
the court
summary
judgment” Syllabus Point Gavitt v.
hearing
after a
in which it determined that all
Swiger,
(1978).
162 W.Va.
provide fringe applied by benefits and the amount of be the courts construed or fringe interpreted.” provide, Carper Banking benefits to contend that v. Kanawha Co., 477, offered, 517, & Trust 157 once benefits are these benefits en- W.Va. 207 S.E.2d (citation 897, omitted). joy protection wages 921 the same as so that the statutory obligation them cannot be dispute provi Few would that the Citing abandoned “forfeiture schemes.” fact, ambiguous. sion before us is In (1975). § employ- 21-5-10 W.Va.Code The long attorneys WPCA has confounded conclude, therefore, that, according ees Perhaps courts confusing alike. the most 21-5-l(c), fringe § W.Va.Code all benefits part of the is the that WPCA one confronts capable payable which are of calculation and us in concerning pay the instant cases directly to an are included fringe employee’s ment benefits “wages.” term separation employment. specific from The hand, employers, argue on the other difficulty guidance lack of provided by is the just vigorously § that W .Va.Code 21-5- both regulations clarify the statute and its 1(e) plainly unambiguously allows em- ing what constitutes “accrued” leave ployers employees’ to limit entitlement separation must at be fringe by specific provisions con- It open is well that “[a] established statute is applicable employment policy. tained in the only language construction where the used clear, say employers, by This is made requires interpretation ambiguity because of only fringe fact that benefits which meet the susceptible which renders it of two or more specific § criteria set forth 21- W.Va.Code constructions or of such doubtful or obscure 5-l(c) “wages.” are included in the term meaning that might reasonable minds be un employers define term “accrued” to disagree meaning.” certain or as to its Here “vested, presently payable.” mean or due and Meek, v. 132 W.Va. 52 S.E.2d ford Therefore, “wages” (1949). be included as 740, certainly 747 This is true 21-5-l(c), § fringe under W.Va.Code find, bene- therefore, provision before us. We only capable fits must 21-5-l(e) be calculation § ambiguous W.Va.Code is in that payable directly employee, to an but also fringe susceptible “then accrued benefits” is provisions employ- vested under the Further, differing constructions. we have agreement. employers emphasize ment stated that ambiguous “[a] statute that require grant- that the WPCA does not applied.” must be construed it can before ing prescribe vesting benefits or or 1, Buckalew, Syllabus Farley Point v. 186 calculation pro- (1992). rules benefits which are 693, W.Va. 454 S.E.2d Accord They vided. conclude from this that ingly, step our first is to construe the mean specific applicable employment terms of the 21-5-l(c). ing § of W.Va.Code must determine whether bene- long This Court has that “[i]n held “wages” fits are included the term under statute, interpretation legislative of a 21-5-l(c). § following W.Va.Code For the factor; intention controlling is the and the reasons, agree employers. we with the legislature intention of the is ascertained provisions
The issue before us demands that
of the statute
apply
application
we either
construe the
of sound and well established can
21-5-l(c).
preliminary
W.Va.Code
As a
ons of construction.”
v.
State General Dan
matter,
548,
necessary
Morgan
V.F.W.,
we deem it
to review the
iel
Post No.
144 W.Va.
statutory
(1959) (citation
time-honored tools of
construction
107 S.E.2d
omitted).
deciding
that will assist us in this
In
parsing
language
task.
of a stat
statute,
meaning
begins
of a
this Court
meaning,
ute for its
we are mindful that “a
principle
“[j]udieial
interpreta
statutory
cardinal rule of
construction is that
must,
only
significance
statute is warranted
if the
possible,
and effect
if
ambiguous[.]” Syllabus
section, clause,
given
every
statute
Point
part
word or
Manchin,
part,
County
v.
Ohio
Com’n
the statute.”
State General Daniel Mor
(1983).
5^8, V.F.W.,
gan
W.Va.
tains no conditions such hourly wage prospec- will only gov- can rate it offer its payment fringe benefits Obviously employees. if bene- employment found in tive by the terms of erned promulgated employ- fits such as vacation and sick were employment policies compensation package, According- from the by employees. absent agreed ers and wages higher. would applicable employment ly, the terms *13 WPCA, policy, and not the determine wheth- Farley Zapata Corp., 167 W.Va. Coal fringe in term er benefits are included (1981). 238, 242 It 281 S.E.2d is clear 5—1(e). § “wages” under W.Va.Code 21— employer that an is free to terms and set the this construction furnishes the employment compensation, We believe conditions of and ordinary meaning benefits, its and including fringe term “accrued” and are gives every reject word in W.Va.Code accept effect free to or these conditions. As 21-5-l(c). above, recognizes § that in draft- It also noted the WPCA does not contain ing provision, Legislature was not eligibility vesting requirements governing this concerning eligibility requirements silent payment fringe Accordingly, of benefits. commonly fringe set forth fringe part compensa- benefits are of a when benefits employment policies, but rather acknowl- they governed by package, are the terms edged requirements by stating Further, that these employment. nothing of in the be, alia, fringe inter benefits must “then prevents employers conditioning from WPCA accrued” be included the term vesting fringe right of a benefit on some interpretation “wages.” The of W.Va.Code requirement in eligibility per- addition to the (c) employees, § 21-5-1 advanced providing, formance of services or from such hand, presumes cases, Legisla- other that the fringe inas the instant that unused implicitly nullify provi- all ture intended employees upon will not be benefits employment relating policies sions in to the separation empha- from We vesting fringe only size, however, Not this of benefits. employment the terms interpretation language inconsistent with the express specific concerning must be and 21-5-l(e), § of W.Va.Code it is also at odds vesting fringe Generally, benefits. em- statutory pro- of which that ployers policies scheme draft the which are relied part. Therefore, vision is a upon by employees. any ambigui- ty employment con- the terms will be right a The WPCA does create employees. According- strued in favor of the Rather, fringe ques- it benefits. reserves the 21-5-l(c) ly, § we conclude W.Va.Code pro- fringe bargaining tion of to the benefits simply if under means the terms employers employees. cess between employment is entitled This Court has stated: benefits, payment fringe payment pay and similar Vacation other unpaid benefits has the same status as these gratuities employers which are not benevo- wages.7 lently employees. bestow their Finally, support integral components Rather of a we find further for our 21-5-l(c) compensation package bargained § for and construction W.Va.Code analogous statutory agreed upon by parties. expects provisions contained in One Employee Security employers that both strive Retirement Income (ERISA), §§ exchange employment Act of 1974 29 1001- fair U.S.C. (1994). protects only place. A factor un- 1461 ERISA those market pension doubtedly gauging the fair- benefits which are both accumulated considers when Elec., Inc., employment Royal Berard v. ness of an offer is the value vested. See (D.R.I.1992) (“ERISA F.Supp. employer in addition to 795 526 benefits the offers Conversely, protect employees’ pay. [sic] was enacted to take home benefits.”). accrued, fringe pension also into account the cost of vested takes differently, significant providing above in we would be addition to the reasons set forth employers § support 21- disincentive for to continue to offer of our construction of W.Va.Code 1(c), we are concerned that if we were to hold benefits. 5— However, synon- terms “accrued” and “vested” are not employment ment. the terms of Berard, ymous. “An id. accrued benefit is express specific must be so that employ- participant annually the benefit a earns amount, if any, ees understand the according specified calculated formula upon separation benefits owed them Berard, plan.” P.Supp. [benefit] employment. Accordingly, this Court (citations omitted); also, at See U.S.C. any ambiguity will construe the terms 1002(23)(A)(1994). § Vesting, on the other employees. in favor of hand, participant gained “means that a has ‘a law, Having applicable stated the we now right to [or nonforfeitable receive his her] proceed to decide the eases before us accord- ” Id., F.Supp. entire accrued benefit.’ ing specific to the facts of each. (citation omitted); also, See U.S.C. Kay No. K. Meadows v. 1002(19)(1994). 25325— Accordingly, only benefits Stores, Wal-Mart Inc. which have both accumulated and vested sur- *14 employee’s separation an employ- vive from According language to the clear ment under ERISA.8 Policy,” Wal-Mart’s “Illness Protection “[u]nused Illness Protection Hours will not Similarly, protects “wages” the WPCA as paid upon be to Associates termination of only fringe those benefits which have both employment except required by where state accumulated and In to vested. ensure above, law.” As noted Wal-Mart is free to that the amount of accumulated benefits place conditions and restrictions determined, em only those benefits which are ployees’ eligibility fringe to receive benefits. “capable of calculation” under the terms of The restriction at issue does not applicable violate the employment policy pro- are Also, Accordingly, WPCA. we find that fringe the circuit tected. benefits must have correctly granted court summary judgment according eligibility require- vested to the Wal-Mart and we affirm. employment.9 By ments the terms of arguing that all accumulated benefits are Beverly Judy No.
protected wages upon separation Austin from 25326 — Austin, Karen employment regardless et al. v. vesting re- Corporation quirements employment, Sheetz the terms employees disregard language of W.Va. appellants complain The that 21-5-l(c), § employment Code historical they paid should have been both sick and operates, context which the WPCA as well pay upon separation employ vacation from purpose of as the that statute. states, policy plainly ment. Sheetz’s howev er, an “[s]hould that with accu that, summary, pursu In hold we personal days mulated and sick leave the 21-5-l(c) (1987), § ant to W.Va.Code wheth company, payment no will be made for accrued, fringe er benefits have then are Therefore, days.” appellants these capable payable directly calculation and pay no were owed sick termination. so as to be included the term Also, appellants they claim wrong were “wages” are determined the terms of em ly pay. vacation is ployment denied There no dis and not of W.Va. however, 21-5-l(e). Further, pute, appellants that § were em Code the terms of ployed by year. for less than a employment may vesting condition Sheetz of a policy provides “[hjourly that right eligibility benefit on some Sheetz’s em re quirement performance ployees will earn vacation addition to the on their anniver services, may provide sary By that these terms that date. this we mean to earn a vacation, hourly employee unused benefits will not be must em employees upon separation employ- ployed by from Sheetz for 52 consecutive weeks.” ERISA, pension plan specify important employ- 8. Under a note must 9. It is that terms of schedule, vesting subject vesting 21-5-9(3) to the minimum required § ment W.Va.Code 1053(a) (1994 requirements of 29 U.S.C. to be made available to Supp.). employ- which determine when an writing. right ee's to receive his accrued benefit becomes nonforfeitable. provide not that policy does employed fifty- service. The appellants were if days vacation are forfeited owed no vacation unused two weeks and so were these employ prior separation that circuit pay. Accordingly, we find not taken addition, summary judgment policy while the describes properly granted court ment. Sheetz, upon separation from and we affirm. in effect on behalf of formula ]/12 concerning un employment, it is silent Remsberg, No. 25327—Christine days already in the vacation earned used Corporation v. Kmart et al. policy year of previous indicate, therefore, language appears to separated appellants who were example should employee in above employment prior to their one from Kmart’s already days pay five of vacation receive the allege year anniversary that Kmart’s date February 1996 in addition earned any con pay failure to them vacation benefit ]/i2 days on March vacation earned of the five Kmart’s of the WPCA. stitutes violation states, part, “[p]aid policy- in relevant according to an associ
vacations are earned Kmart to institute the course free Of year length [as follows:] ate’s of service like- by Mr. Kobs. Kmart policy described (5 service, years but less than Week —1 employ- provide in its free to wise days).” appellants these were Because receive separate who ees year, employed for one failed earn must vacation at all. Kmart no unused any according express *15 vacation time so, however, plain specific in terms. do policy. Accordingly, provisions of Kmart’s written, currently ambigu- policy, The as court’s award of sum we affirm the circuit above, this will con- ous. As noted Court mary judgment of Kmart as to the on behalf employees. policy in favor of strue appellants employed at Kmart for who were Therefore, interpret Kmart’s we year. less than separate from employees who mean that separated appellants who Those fiscal employment within the same Kmart’s employment with Kmart after them one anniversary employment year an annual year anniversary paid vacation date were earned, yet they but not on which have date forth according to the formula set % used, days, shall be those vacation They that were not above. contend any vacation days in addition to time vacation upon separa paid all vacation time due them in formula subsequently under the earned H2 agree. tion from We year.10 Accordingly, we re- fiscal the same record, in transcript deposition of a there is a summary judgment circuit court’s verse by explained was which Kmart’s formula l/iz Kmart to those former order as Kobs, Kmart’s W.Va.R.Civ.P. William their separated employment after who 30(b)(6) Kobs, According to Mr. designee. date, anniversary year and we remand one 1, begins February who work on this proceedings consistent with this ease for eligible days of vacation on 1995 is for five opinion. 2, However, February employ if that Hutzler and Besaw No. 25328—Elizabeth 2, February resigns on ee or is terminated v. Easton Besaw Vanorsdale Contessa pay. If that no vacation he receives Molding Corporation employed until March time, he would and had used no vacation in this case is whether The first issue eligibility for the receive of his vacation appel- estoppel operates to bar the collateral %2 year. this is current We do not believe payment litigating the issue of the lee from policy. reading a fair of Kmart’s accord with appellants argue benefits. estoppel articu- conditions collateral According policy, employees all the to Kmart’s Big Arm Bar in Haba v. this Court days upon annual lated earn vacation Inc., Grill; S.E.2d years W.Va. anniversary according to their dates forfeited.” was due or will be policy provides that vacation "[a]ll 10. Kmart’s year during in which it must be taken the fiscal appellants suc believe the According to We present here. estoppel is ap- cessfully preserved the collateral issue of whether appellants, the general appeal benefits to to this Court. “Our required pellee is sue employed by nonjurisdietional questions have employees who been is that rule year level, than a is identical appellee for less but raised for at the circuit court raised Simpson11 II of the raised Count the issue appeal, not be consid will the first time Second, judgment order was a there Anvil, 733, 741, case. Barney v. 195 W.Va. ered.” Simpson I and II as to Counts omitted). entered (1995) (citations 801, 809 466 S.E.2d adjudication on the a final that constitutes Here, obviously was raised below. the issue par- requirement, that the third merits. The reveals, appellee, as noted The record action, is satis- prior ty involved was of collat appellants raised issue that the named appellee was the because the fied summary estoppel in motion for eral their Finally, the fourth Simpson. defendant dat judgment supporting memorandum party against whom requirement, 24,1996, reply to the their ed October and fair estoppel is had a full used collateral summary judgment motion dated appellee’s prior litigate the issue opportunity to 9,1996. Also, “[i]n the exercise December rep- action, appellee was is met because jurisdiction,.this Court will appellate its opportu- ample by counsel who had resented questions nonjurisdietional which have decide litiga- to the nity develop all facts relevant the court from which not been decided tion. Syllabus Point appealed.” has been case first, ap- that the appellee responds, 493,142 Rogerson, 149 S.E.2d W.Va. Work preserve their collateral pellants overruled, failed (1965), Pear grounds, on other appeal to Court. estoppel argument for this Dodd, 159 W.Va. S.E.2d son v. appellants ad- appellee *16 argument appellee’s a to the and in rebuttal summary judg appellee’s motions for summary judgment. Both for cross-motion con circuit court’s order is ment. While summary judgment were motions for parties’ specify issues on elusory does not Subsequent to a status at this time. denied ruled, appel clearly it it denied which stipulated parties in which both conference estoppel in which the collateral lants’ motions issues, parties factual that there were no Therefore, we find raised. issue was judg- summary motions for filed renewed circuit court’s atten brought to the issue was motion and appellants’ renewed ment. The it and tion, circuit court considered and the appellee’s motion for response to the them on it. ruled col- summary judgment did not address the appellee con- estoppel issue. Further, appellants’ lateral disagree that the we that, by failing to renew the collateral cludes in their renewed the issue failure to restate and, issue, it appellants waived estoppel in this for review motions waived issue therefore, appeal. it on now raise cannot rejection of court’s After the circuit Court. estoppel argument its Janu- the collateral Alternatively, appellee avers that the order, 8, appellants should ary 1997 circuit to the appellants faded to demonstrate again. In failing to raise it for be faulted permitted to use court that should us addition, cited to not find the cases we do Also, offensively. ap- estoppel collateral argument support of its appellee in by the estoppel in the pellee argues that collateral specific facts applicable to the waiver for improper as a matter of law instant ease is that the Accordingly, conclude we before us. 68 judgment a under W.Va.R.Civ.P. because properly estoppel is question of collateral parties between the is akin to a settlement us. judgment merits. before not a on the and is recovery pay which Corp. part of vacation Molding Corp. Simpson referred to Easton 11. v. upon Molding Corp. pay her did not opinion, in which Easton previously is the case in this Molding separation Betty plaintiff, Simpson Easton sued 220 Co., 560, 564, 907,
This Court has never
the issue of
110 W.Va.
decided
Coal
158 S.E.
(1931) (citation omitted).
909
judgment pursuant
a
whether
W.Va.
adjudication
68 constitutes a
on
R.Civ.P.
final
light
similarity
consent
between
purposes.
estoppel
merits
collateral
judgments
judgments
pursuant
to Rule
courts, however,
considered this
Other
have
68,
determining
judg
whether a Rule 68
question.
Appeals
The Court
New
judicial
a
ment constitutes
determination
great length
discussed this issue at
Mexico
liability,
New Mexico court
to case
looked
Inc.,
Gap,
v.
Pope
analyzing
125 N.M.
961 P.2d
judgments
law
whether consent
(1998).'
judicata
Specifically,
court
to res
1288
was
are entitled
and collateral
estoppel effect. The court found that
judgment pur-
“[m]ost
asked
determine whether a
judgment
courts
in accord that a
are
consent
1-068 of
suant Rule
the New Mexico Rules
judgment
a
final
for res
merits
Procedure
a determina-
of Civil
constitutes
judicata
thus,
purposes parties
liability.12
or admission of
relitigating
barred from
claims
settled
Because New Mexico’s Rule 1-068 is iden-
judgment.” Pope,
consent
125 N.M. at
counterpart,
tical to its federal
the court
(citations omitted).
1289
961 P.2d at
This is
guidance.
looked
federal law for
W.Va.
true of this Court which has
in this
held
68,13 likewise,
R.Civ.P.
is based
context,
judgment by
or a court
“[a]
consent
identical to
of the Federal
almost
Rule 68
recording compromise
has
settlement
Pope
Civil
court in
Rules
Procedure. The
judgment
the same force and effect as a
“[ujnder
law,
noted that
courts
first
federal
entered after full contest of
in
the issues
ordinary
apply
principles
Virginia
contract
deter-
volved.”
ex rel. Prince v.
State
West
ept.
Hwys.,
mining what
D
195
was intended in
offer of
W.Va.
(1972) (citations
omitted),
S.E.2d
see
judgment
...
under Federal Rule
Civil
Oil, Inc.,
also Hustead Ashland
Pope,
at
W.Va.
Procedure 68.”
125 N.M.
(1996).14
(citations omitted).
221
734,
judgments
bankrupt-
(N.Y.App.Div.1967); Pub
effect of consent
N.Y.S.2d
736
Waldroup,
384,
cy
v.
38
Pope,
lic
Elec. & Gas Co.
policy handbook escaped agree not our that in an notice. We pay if or she retires is entitled to sick he ee employees all ideal world would receive sick years age sixty-five of and has ten after the pay and vacation benefits. We are con however, provision, is not of This service. strained, however, by our constitutional role. employees seeking to learn what helpful to upon separation from are owed them benefits powers provision the division of Under employment. Appearing the handbook State, authority of this Constitution Retirement,” titled “Normal the section prov- to a law is within make the exclusive upon by appellant states provision relied legislative govern- ince of branch of the in full: ment. This Court exists and functions as a Waco, judicial part govern- normal from em- of the branch of the
On retirement ment, empowered paid and is ployee will be at the then current rate construe law, interpret salary days sick not tak- but not enact it. for cumulative up during employment en the course Sims, Graney ex rel. & Ford v. State (90) days. Payment ninety maximum of (1958). 72, 83, W.Va. S.E.2d days will be out on the of unused sick Further, province is not the “[i]t usual, customary, biweekly pay schedule. supervise legislation, courts to make and a is defined Waco Normal retirement not, may guise interpre statute under employees years age or older least 65 tation, modified, revised, amended, dis (10) years of having a minimum of ten torted, remodeled, or rewritten[.]” State company. with the service Morgan Daniel Post No. General arguable While it V.F.W., W.Va. S.E.2d “only” employ- provision this infer from (1959) (citation omitted). simply It is not separated who are ees what law this Court’s function decide paid any upon will be normal retirement be, apply ought to but rather to construe and pay, it is no clear. As unused sick means Legislature it law as the has enacted noted, provision appears in the the above Legislature facts us. The has not before concerning handbook retire- section payment of benefits to mandated the ment, days.” “sick in the section on pay has it mandated the all nor Also, specifically it concerns retirement employ ment of all unused purport to be an exhaustive treat- does separation ees We remains, fact pay sick benefits. The ment of therefore, confident, con are we have therefore, is silent that the handbook 21-5-l(e) in accord with strued W.Va.Code sick concerning payment unused Legislature’s intent. than normal retirees. employees, other inference from will not draw the This Court IV. CONCLUSION appellant. urged on us this silence above, dis- For set forth we the reasons addition, find no reason for the we pose instant consolidated eases present below appellant further evidence following manner: policy handbook is to demonstrate that the No. 25325—Affirmed. pay. sick not silent on the issue unused trial record. policy handbook is No. 25326—Affirmed. of un- on the issue Its are silent part, 25327—Affirmed Reversed separated employees who No. pay to used sick artic- vVithdirections. According part to the rule and Remanded not retirees. *20 25328—Affirmed. “fringe things No. A benefit” includes such as vacation, leave, holidays, production sick or No. 25329—Affirmed. 5—1(1).2 W.Va.Code, Hence, bonuses. 21— statute, employer under the an and an em- STARCHER, Justice, dissenting: Chief ployee “agree” way can also on a to calcu- (Filed 2000) Feb. just fringe payable late benefits that are (ie., wages days like majority I 1.5 of sick leave for opinion’s dissent to the subver- worked). State, Again, each month once the em- sion of the laws of this ployee performs provides and services or la- century and its reversion to 19th fictional bor, employer respond then the must and concepts employee days contracts. In the compensate employee fringe with the Age, of the Industrial courts invented the pursuant benefit to the of calculation means fantasy every employer every and em- forth in set the “contract.” table, ployee sits down across a and after a days negotiations bargaining, they few and says wages fringe The statute include employment. hammer out a contract of “capable benefits of calculation” “payable and Virginia Legislature West had to the sense directly employee.” to an “Calculate” means recognize in 1917 that railroad workers were beforehand, esp. to or “ascertain determine getting the short end of “bar- the fictional arithmetic,” by “payable” while means “due gain,” Wage Payment and enacted the and owed, ... owing, outstanding, unpaid, receiv- Act, require employers Collection railroad Dictionary able.” Desk and Thesau- Oxford timely pay employees wages their rus, (1997). American Edition per- had work earned after has been Hence, W.Va.Code, “wages” term Legislature expanded formed. The has since (c) 21-5-1 includes vacation and sick leave apply every employment the Act to con- arithmetically that can be determined before Virginia. tract created the State of West by services are employee, rendered and due, Act, W.Va.Code, 21-5-l(c), owing, yet which specifically unpaid and as to an employee provided “wages” who has “compensation defines services. These for labor fringe part plaintiff- benefits became by employee, or an services rendered wheth- employees’ compensation time, task, overall earned dur- er the amount is determined on ing periods their piece, commission or other basis of calcula- statute, employer tion.” Under this and nothing Wage Payment There “agree” way can aon to calculate requires Act that employer Collection an (ie., worked). wages per in cash hour $5.25 fringe Nothing offer benefits. in the Act employee performs provides Once the compels employer give an his labor, employer or services then the must vacation, holidays, time off for or for or for respond compensate employee pur- Employers sick fringe leave. offer benefits suant the “contract.” appeals employees, it because and makes job enticing. more W.Va.Code, 21-5-l(c) specifically says that However, “wages” the term “shall also include then once an makes the fringe benefit, capable accrued benefits of calcula- choice to offer then W.Va. 21-5-l(c) Code, payable directly tion and employee[.]” to an takes over and ensures that W.Va.Code, (c) "wages” 1. 21—5—1 defines er and his which does not contra- way: following dict the of this article. (c) "wages” W.Va.Code, compensation The term 21-1-5(1) means "fringe defines benefits” employee, for labor or services rendered an following in the manner: time, whether the amount is determined on a "fringe any The term benefits” means task, piece, commission or other basis of calcu- provided group benefit of em- “wages” [T]he
lation. ... term shall also in- ployees employer, required or which is capable law, clude vacation, then accrued benefits regular graduat- and includes directly payable employ- vacation, vacation, calculation to an floating holidays, ed leave, sick Provided, leave, nothing ee: That herein contained personal production incentive bo- nuses, require fringe shall to be calculated sickness and accident benefits and bene- any contrary agreement relating employ- pension coverage. between an fits to medical and
225
date,
employee
specified
versary
requested
performs
pro
if
the
work
and he
rata
benefit,
fringe
expectation
receiving
pay.
employer
in
of
of his
share
vacation
The
(like
employer may
argued
employers
not make the
then
earned
the instant
case)
illusory. Specifically,
employer
employment
anniversary
benefit
on the
receipt
fringe
precedent
cannot condition the
of the
date was a condition
to the “vest-
ing”
rights,
on the occurrence of some
of
pay
benefit
uncertain
vacation
and refused to
employee any portion
future event.
of his
pay.
vacation
majority opinion
employ
The
holds that an
rejected
The
court
employ-
California
fringe
illusory
er can make
and con
position
employee
er’s
and held that the
was
occurrences,
tingent upon
stating
uncertain
pro
fringe
entitled to a
rata
share
his
Syllabus
fringe
at
Point 5 that “whether
ben
fringe
benefits. The court
that a
stated
ben-
accrued,
capable
efits have then
are
calcu
pay
gratuity
efit like vacation
“is not a
or a
payable directly
employee
lation and
to an
so
is,
effect,
gift,
wages
but
additional
for
“wages’
as to be included
the term
are
performed.”
849,
Cal.Rptr.
services
183
at
employ
determined
the terms of [the]
words,
All involved companies. Had the
non-union unions, represented by the terms and
been package un-
conditions benefit
doubtedly fully set would been forth have agreement. bargaining
the collective Accordingly, Sejman v. Raven was followed in Tobin the court in v. Warner- man decision Co., Inc., (4th Corp., F.Supp. swoodAluminum Lambert 889 F.2d 1348-49 ERISA, (S.D.W.Va.1993), Cir.1989), “[b]ecause, Judge ruled that where Haden held under unaccrued, may unilaterally contingent employer “an terminate are severance benefits unilaterally plan, because sever amend or amend an ERISA severance eliminate contingent Sej- plan[.]” and unaccrued." ance benefits a severance notes (1975). this Again, the circuit court decided estoppel argument in vanced them collateral January By order of issue. summary judgment original motion for their appellants’ and both the circuit court denied