No. 13-1133 -           Gregory Grim, et al. v. Eastern Electric, LLC

                                                                             FILED
                                                                         November 7, 2014

                                                                        RORY L. PERRY II, CLERK

                                                                      SUPREME COURT OF APPEALS

                                                                          OF WEST VIRGINIA





Davis, Chief Justice, concurring, in part, and dissenting, in part:

              While I agree with the majority’s resolution of the issues in the case sub judice

pertaining to the West Virginia Prevailing Wage Act,1 I disagree with the majority’s final

conclusion that the petitioners herein are foreclosed from pursuing their claims seeking

damages under the West Virginia Wage Payment and Collection Act.2 The Prevailing Wage

Act and the Wage Payment and Collection Act serve two distinct purposes. Therefore,

because each of these Acts provides a prescribed measure of damages for a violation of its

provisions, it is clear that the petitioners are entitled to, and should have been permitted to,

seek recovery of both of these independent statutory remedies. From the majority’s contrary

conclusion, I respectfully dissent.



              In its decision of this case, the majority correctly concluded that the petitioners

may pursue their claim for damages provided by the Prevailing Wage Act. The Legislature

has stated the purpose of the Prevailing Wage Act to be as follows:


              1
                  W. Va. Code § 21-5A-1 et seq.

              2
                  W. Va. Code § 21-5-1 et seq.


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                     It is hereby declared to be the policy of the State of West
              Virginia that a wage of no less than the prevailing hourly rate of
              wages for work of a similar character in the locality in this State
              in which the construction is performed, shall be paid to all
              workmen employed by or on behalf of any public authority
              engaged in the construction of public improvements.

W. Va. Code § 21-5A-2 (1961) (Repl. Vol. 2013). This Court also has recognized that

“W. Va. Code § 21-5A-2 (1961) (Repl. Vol. 2002) requires the prevailing wage to be paid

to all workmen who are employed ‘on behalf of any public authority’ and who are ‘engaged

in the construction of public improvements.’” Syl. pt. 9, in part, State ex rel. Tucker Cnty.

Solid Waste Auth. v. West Virginia Div. of Labor, 222 W. Va. 588, 668 S.E.2d 217 (2008).

Accord Syl. pt. 4, Majority op.3 To achieve this goal, the Prevailing Wage Act permits an

aggrieved employee to pursue an action for damages occasioned by the employer’s failure

to pay the prevailing wage:

                     Any skilled laborer, workman or mechanic who is
              engaged in construction on a public improvement let to contract,
              who is paid less than the posted fair minimum rate of wages
              applicable thereto, may recover from such contractor or
              subcontractor the difference between the same and the posted
              fair minimum rate of wages, and in addition thereto, a penalty
              equal in amount to such difference, and reasonable attorney fees.
              The venue of said action shall be in the county where the work
              is performed: Provided, however, That an honest mistake or
              error shall not be construed as a basis for recovery under this
              subsection.



              3
               See also Thomas v. A.G. Elec., Inc., 304 S.W.3d 179, 183 (Mo. Ct. App. 2009)
(acknowledging that the prevailing wage act “is intended to ensure that workers on public
projects be paid reasonable wages” (internal quotations and citations omitted)).

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W. Va. Code § 21-5A-9(b) (1961) (Repl. Vol. 2013). In rendering its ruling, the majority

correctly determined that the petitioners may pursue these remedies afforded by the

Prevailing Wage Act.



              Despite this decision, the majority then forbade the petitioners from seeking

recompense for the income they lost as a result of Eastern Electric’s alleged violation of the

Wage Payment and Collection Act. This result is patently unjust because the two Acts serve

different legislative purposes and provide separate remedies for the distinct injuries

recognized by each statutory scheme. Unlike the Prevailing Wage Act, which requires

employers of employees constructing public improvements to pay a specific minimum wage,

W. Va. Code § 21-5A-2, the Wage Payment and Collection Act requires employers to pay

their employees by a date certain for the work the employees have performed, W. Va. Code

§ 21-5-3(a) (2008) (Repl. Vol. 2013). Pursuant to W. Va. Code § 21-5-3(a),

                      [e]very person, firm or corporation doing business in this
              State, except railroad companies as provided in section one of
              this article, shall settle with its employees at least once in every
              two weeks, unless otherwise provided by special agreement, and
              pay them the wages due, less authorized deductions and
              authorized wage assignments, for their work or services.

In recognition of the purpose of this Act, this Court has stated that “[t]he West Virginia

Wage Payment and Collection Act is remedial legislation designed to protect working people

and assist them in the collection of compensation wrongly withheld.” Mullins v. Venable,

171 W. Va. 92, 94, 297 S.E.2d 866, 869 (1982) (emphasis added; citation omitted). Accord

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Syl. pt. 7, Majority op.4 As a remedial statute, the Wage Payment and Collection Act should

be construed liberally to facilitate its accomplishment of its stated purpose: requiring

employers to timely compensate their employees for work performed. See State ex rel.

McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 777, 461 S.E.2d 516, 523

(1995) (“Where an act is clearly remedial in nature, we must construe the statute liberally so

as to furnish and accomplish all the purposes intended.” (citations omitted)).



              To realize the Wage Payment and Collection Act’s requirement that employees

be timely paid for work performed for their employers, the Act specifically permits an

aggrieved employee to bring an enforcement action against his/her employer:

                      (a) Any person whose wages have not been paid in
              accord with this article . . . may bring any legal action necessary
              to collect a claim under this article. . . .

W. Va. Code § 21-5-12(a) (1975) (Repl. Vol. 2013). Additionally, W. Va. Code § 21-5-4(e)

(2013) (Repl. Vol. 2013) details the specific remedies that are available to an employee

whose employer has not paid him/her in accordance with the Wage Payment and Collection

Act:



              4
               See also Lipsitt v. Plaud, 466 Mass. 240, 245, 994 N.E.2d 777, 783 (2013)
(recognizing that “[t]he purpose of the Wage Act is to prevent the unreasonable detention of
wages” and that “[t]he Wage Act was intended and designed to protect wage earners from
the long-term detention of wages by unscrupulous employers as well as protect society from
irresponsible employees who receive and spend lump sum wages” (internal quotations and
citations omitted)).

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                      If a person, firm or corporation fails to pay an employee
              wages as required under this section, the person, firm or
              corporation, in addition to the amount which was unpaid when
              due, is liable to the employee for three times that unpaid amount
              as liquidated damages. Every employee shall have a lien and all
              other rights and remedies for the protection and enforcement of
              his or her salary or wages, as he or she would have been entitled
              to had he or she rendered service therefor in the manner as last
              employed; except that, for the purpose of liquidated damages,
              the failure shall not be deemed to continue after the date of the
              filing of a petition in bankruptcy with respect to the employer if
              he or she is adjudicated bankrupt upon the petition.

See also W. Va. Code § 21-5-6 (1981) (Repl. Vol. 2013) (“If any person, firm or corporation

shall refuse for the period of five days to settle with and pay any of its employees at the

intervals of time as provided in section three [§ 21-5-3] of this article, or to provide fringe

benefits after the same are due, . . . and suit be brought for the amount overdue and unpaid,

judgment for the amount of such claim proven to be due and unpaid, with legal interest

thereon until paid, shall be rendered in favor of the plaintiff in such action[.]”); W. Va. Code

§ 21-5-12(b) (“The court in any action brought under this article may, in the event that any

judgment is awarded to the plaintiff or plaintiffs, assess costs of the action, including

reasonable attorney fees against the defendant. . . .”). In spite of the liberal construction to

be afforded to this Act, the majority expressly, and wrongly, prohibited the petitioners from

seeking recompense thereunder.



              Insofar as the petitioners seek damages regarding their employer’s failure to

pay them the wages they claim they were entitled to receive, the petitioners should have been

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permitted to pursue the statutory remedies provided by the two legislative enactments

applicable to their claims: W. Va. Code § 21-5A-9(b) of the Prevailing Wage Act and W. Va.

Code § 21-5-12(a) and W. Va. Code § 21-5-4(e) of the Wage Payment and Collection Act.

While these two routes of redress are similar to the extent that they both ensure that

employees receive the compensation that they legitimately have earned, these two statutory

provisions nevertheless are very different in the specific types of compensation they address

and the remedies they provide to aggrieved employees. Thus, to the extent that the

petitioners claim that they should have been paid wages that they were not paid, whether

under the Prevailing Wage Act or pursuant to the Wage Payment and Collection Act, they

should have been permitted to pursue both of their sources of recovery. Whether the

petitioners may also have individual contractual remedies against their employer should not

foreclose their ability to pursue the relief expressly provided to them by the Legislature in

these two separate statutory schemes. Moreover, such a course is not without precedent

given that many courts have permitted an aggrieved employee to simultaneously pursue

remedies provided by both prevailing wage statutes and wage and hour laws. See, e.g.,

Gurung v. Malhotra, 851 F. Supp. 2d 583 (S.D.N.Y. 2012) (pursuing claims under prevailing

wage law and FLSA); Gomez v. Rossi Concrete, Inc., 270 F.R.D. 579 (S.D. Cal. 2010)

(pursuing claims under prevailing wage law, FLSA, and ERISA); Sobczak v. AWL Indus.,

Inc., 540 F. Supp. 2d 354 (E.D.N.Y. 2007) (pursuing claims under prevailing wage law and

FLSA); Takacs v. A.G. Edwards & Sons, Inc., 444 F. Supp. 2d 1100 (S.D. Cal. 2006)


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(pursuing claims for prevailing wage and unpaid wages); Commissioner of Labor v. C.J.M.

Servs., Inc., 268 Conn. 283, 842 A.2d 1124 (2004) (pursuing claims for prevailing wages and

overtime wages). See also Stampco Constr. Co., Inc. v. Guffey, 572 N.E.2d 510 (Ind. Ct.

App. 1991) (pursuing claims for prevailing wages under Indiana state law and federal Davis-

Bacon Act).



              In reaching its discordant decision, the majority of this Court not only has

failed to appreciate the liberal construction to be afforded to the Wage Payment and

Collection Act but also has expressly forbidden the petitioners herein to seek recompense

provided by that Act’s statutory remedies. Accordingly, I concur in the majority’s resolution

of the issues regarding the Prevailing Wage Act, but I respectfully dissent from its rejection

of the petitioners’ claims under the Wage Payment and Collection Act.




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