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: 

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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 attorneyfees. 

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. 

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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: 

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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 DavisBacon 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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