A group of former correctional officers for the Cabell County, West Virginia Sheriff’s Office sued the County, seeking payment for their accumulated sick leave. The positions of the corrections officers 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.

Under West Virginia statutes, the term “wages” includes accrued fringe benefits. That section, in turn, defines the phrase “fringe benefits” as including sick leave. The failure to pay “wages” in a timely fashion is deemed an unlawful employment practice. Whether a particular fringe benefit is payable to an employee is determined by the terms of employment, which not only include a written employment agreement but also includes the employer’s personnel handbook or manual, personnel policy materials, memoranda and documents intended to be used by employers in establishing the benefits of their employees.

The Court found that “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. 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. 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.

“Consequently, this Court holds 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, accumulated sick leave, upon termination from employment, is not a vested, nonforfeitable fringe benefit and is not payable to the employees. 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.”

Wolfe v. Adkins, 725 S.E.2d 200 (W. Va. 2012).