No. 14-0058 - Citynet, LLC v. Ray Toney
                                                                        FILED
                                                                   February 6, 2015
                                                                     released at 3:00 p.m.
                                                                     RORY L. PERRY II, CLERK
                                                                   SUPREME COURT OF APPEALS
Justice Ketchum, dissenting:                                           OF WEST VIRGINIA




              I disagree with the majority decision. As I read Citynet’s Employee

Incentive Plan, the plaintiff was not entitled to redeem the entire balance of his vested

fringe benefits when he quit.

              In Syllabus Point 5 of Adkins v. American Mine Research, Inc., 765 S.E.2d

217 (W.Va. 2014), this Court reaffirmed the principle that the determination of whether a

fringe benefit is a “wage” payable under the Wage Payment and Collection Act “is

governed by the terms of the employment agreement, whether written or in the form of a

consistently applied unwritten policy.” According to § 5.7(b) of the written Incentive

Plan, the plaintiff was only entitled to redeem up to a maximum of 20% of his vested

balance each calendar year. Citynet appears to have structured the plan to maintain the

stability of its investments in the Incentive Plan, and to only allow employees to make

withdrawals at limited times, in limited amounts. I am not wholly convinced that the

majority opinion’s interpretation of the Incentive Plan is correct, because it interprets the

written language in a way that destabilizes the Incentive Plan for employees other than the

plaintiff.

              Put simply, I would have reversed the circuit court and entered judgment in

favor of the employer.
