Applicable Wage Rates for Public Works Projects

PURPOSE: This rule sets forth applicable wage requirements relative to work performed by workers on public funded projects. (1) All public bodies of Missouri, before advertising for bids or undertaking construction work, must obtain from the department an annual wage order which sets forth the applicable hourly rate of wages (the prevailing wage or the public works contracting minimum wage as provided in section 290.257) in the locality. The rates so determined shall be incorporated in the contract specifications and made a part of those specifications, except that construction contracts of the State Highway and Transportation Commission need not list specific wage rates to apply, but may refer to the wage rates contained in the appropriate General Wage Orders issued by the department, as applicable. (2) Request for annual wage orders shall be initiated at least ten (10) calendar days before advertisement of the specifications for the contract for which the determination is sought. An exception from this provision will be made by the department only upon a proper showing of extenuating circumstances. The department has prepared and printed Form No. PW-3 for use in making a request. The form may be secured by writing Division of Labor Standards, PO Box 449, Jefferson City, MO 65102 or by visiting the following website: https://labor.mo.gov/sites/labor/files/pubs_for ms/PW-3-AI.pdf. (3) A project notification form PW-2 must be filed for each separate project by the public body, except the State Highways and Transportation Commission, which will be furnished prevailing wage determinations under General Wage Orders. (4) The annual wage order issued by the department contains the current applicable wage rates in the locality at the time the annual wage order is issued. Hours worked during the calendar year are used to set the prevailing wage rates in the annual wage order issued in March of the following year. The department will consider hours submitted for use in its initial determination of the prevailing wage rates to be included in a particular year’s wage order only if those hours are received from a contractor, by either paper submission on a form provided by the department or in electronic format, no later than January 31 of that year. Handwritten submissions will not be accepted. For purposes of submitting reportable hours, the term “contractor” shall include a “subcontractor.” The department will not include the following hours in the calculation of the annual wage order: (A) Hours not readily identifiable as being submitted by a contractor; (B) Hours worked by federally-registered apprentices or entry-level workers; (C) Hours worked on residential construction projects. (5) Section 290.262.8, RSMo, provides that the annual wage order for a particular occupational title may be altered once each year with an incremental increase. A public body shall specify in the call for bids for each contract the applicable hourly rate of wages in the locality for each type of worker as set forth in the annual wage order or any replacement page(s) identifying the annual incremental increase issued by the department for the prevailing hourly rate of wages. The wage rates attached to, and made a part of, the call for bids for a contract shall remain in effect for the duration of that particular contract. (6) It should be understood by all interested parties that the certified applicable wage rates determined by the department are minimum wage rates. The contractor may not pay less than the applicable wage rates determined by the department for the project or contract awarded to him/her as set forth in the proposal on which s/he submitted his/her bid. Employees are free to bargain for a higher rate of pay and employers are free to pay a higher rate of pay. (7) Each month the successful bid contractors shall submit certified copies of their current payrolls to the contracting public body. The public body, upon receipt of the payrolls on a project, shall keep the payrolls on file for a period of one (1) year from the date of submission of the final payrolls by the contractor. Payroll records shall set out accurately and completely, for each individual, the following information which shall be specifically recorded by occupational title classification and type of worker (journeyman, entry-level worker, or federally-registered apprentice): name and address of each worker, rate of pay, daily and weekly number of hours worked, deduction made, and actual wages paid. The payroll records shall be available at all times for inspection by authorized representatives of the Department of Labor and Industrial Relations. (8) The public body shall make examinations of the payrolls and other records of each contractor or subcontractor as may be necessary to assure compliance with the provisions of the law. In connection with those examinations, particular attention should be given to the correctness of classifications and any disproportionate employment of any workers. The examinations shall be of a frequency that may be necessary to assure conformity with the provisions of the law. An examination shall be made after the project has been substantially completed but prior to the acceptance of the affidavit as required by section 290.290, RSMo. If any violation of sections 290.210–290.580, RSMo, is discovered by the inspecting public body, it is their duty under section 290.250, RSMo, to withhold and retain from payments to the contractor all sums and amounts due and owing as a result of any violation. Any violation shall be immediately reported to the Division of Labor Standards at PO Box 449, Jefferson City, MO 65102 or by telephone or electronically. AUTHORITY: section 290.240.2, RSMo Supp. 2018.* Original rule filed Dec. 18, 1975, effective Dec. 28, 1975. Amended: Filed July 24, 1984, effective Nov. 11, 1984. Amended: Filed Aug. 24, 1990, effective April 29, 1991. Emergency amendment filed Sept. 15, 1994, effective Sept. 25, 1994, expired Jan. 13, 1995. Emergency amendment filed Dec. 9, 1994, effective Jan. 14, 1995, expired May 13, 1995. Emergency amendment filed May 1, 1995, effective May 14, 1995, expired Sept. 10, 1995. Amended: Filed May 1, 1995, effective Aug. 30, 1995. Amended: Filed July 17, 1995, effective Jan. 30, 1996. Amended: Filed March 27, 2000, effective Oct. 30, 2000. Amended: Filed Nov. 9, 2000, effective May 30, 2001. Emergency amendment filed Nov. 10, 2015, effective Nov. 20, 2015, expired May 17, 2016. Amended: Filed Nov. 10, 2015, effective April 30, 2016. Emergency amendment filed Nov. 21, 2018, effective Dec. 1, 2018, expired May 29, 2019. Amended: Filed Nov. 21, 2018, effective July 30, 2019. *Original authority: 290.240, RSMo 1957, amended 1969, 2018. Woodman Engineering Company v. Butler, 442 SW2d 83 (Mo. App. 1969). The function of reviewing court in prevailing wage cases is to decide if the determination of the commission was authorized by law and was supported by competent and substantial evidence upon the whole record. A decision clearly contrary to the evidence should be set aside. However, all pertinent evidence and factors must be considered in determining the applicable prevailing wage. City of Joplin v. Industrial Commission of Missouri, 329 SW2d 687 (Mo. En Banc 1959). Administrative agencies do not have authority to determine constitutionality of legislation. Determination of prevailing wage earnings by commission must be based upon all current relevant factors.