Law | by Joe Blanner, Partner, Behr, McCarter & Potter, P.C. | 08/09/2012
According to Missouri's Prevailing Wage Act, "a wage of no less than the prevailing hourly rate of wages for work of a similar character in the locality in which the work is performed shall be paid to all workmen employed by or on behalf of any public body engaged in public works exclusive of maintenance." Section 290.220 RSMo. The Act also states, "Not less than the prevailing hourly rate of wages...shall be paid to all workmen employed by or on behalf of any public body engaged in the construction of public works, exclusive of maintenance work." Section 290.230 (1) RSMo. In other words, prevailing wages must be paid for work defined as "construction work", but not for work defined as "maintenance work".
Maintenance work is defined by the Act as "the repair, but not the replacement, of existing facilities when the size, type or extent of the existing facilities is not thereby changed or increased." Section 290.210 (4) RSMo. Alternatively, "construction work", "includes construction, reconstruction, improvement, enlargement, alteration, painting or decorating, or major repair." Section 290.210 (1) RSMo.
The Missouri Supreme Court discussed the distinction between "maintenance work" and "construction work" in its March 1, 2011 opinion in Utility Service Co., Inc. v. Department of Labor and Industrial Relations. In that case, a contractor contracted with a city to perform work on the city's water storage tank and tower. The contractor argued that the work was "maintenance work" because its work was not going to change the size, type or extent of the existing water storage tank or tower. The contractor also argued that the inclusion of the term "painting" in the statute defining "construction work" only pertained to new construction.
In applying the statutory provisions of the Prevailing Wage Act to the work to be performed by the contractor, the Supreme Court found that the contracted work was "reconstruction". The Court defined "reconstruction" as something reassembled into its original form or appearance." The Court found that the replacement of steel parts, expansion joints, water level indicators, and component parts of the tank or tower was "reconstruction".
The Court also found that the replacement of the component parts constituted "improvements" and "alterations". Finally, the Court found that the contractor was to paint the entire interior and exterior of the tank and tower. Based on the foregoing, the Court determined that the work was "construction work" and not "maintenance work".
Based on this decision, some work that would be traditionally thought of as repair work may be defined by the Prevailing Wage Act as construction work, requiring payment of prevailing wages. If there is any doubt as to whether the Act applies, you should check with the Department of Labor and Industrial Relations prior to bidding a project. They can be contacted at (573) 751-3403 or by e-mail at .
To summarize, for work to be considered "maintenance work" it must: (1) be repair and not replacement work; (2) of existing facilities; and (3) the size, type or extent of the existing facilities must not be changed or increased. Violation of the Prevailing Wage Act can result in: (1) forfeiture of amounts to the public body for each worker for each day of a violation; (2) having to pay double the amount of the difference between the prevailing wage and the wage rate actually paid, plus attorney's fees; and (3) possible criminal fines and penalties for willful violations.
To access a checklist on prevailing wage, click here.