Missouri Supreme Court Decision Provides Reminder Of Breadth Of Prevailing Wage Requirements On Construction Contracts

On March 1, 2011, the Supreme Court of Missouri issued a unanimous opinion holding that a contractor's "care and maintenance" of the water storage tank and tower for the city of Monroe City, Missouri, was "construction" and thereby covered under the Missouri Prevailing Wage Act, Mo. Rev. Stat. §§ 290.210, et seq. (the "Act").

The company's contract with the city provided that the company would, among other things, annually inspect and service the tank, maintain and repair the tank and tower, and clean and repair the tank. The contractor sought a written statement from the Missouri Department of Labor and Industrial Relations (the "Department") as to whether the work outlined by the contract was covered under the Act. The company took the position that the work was exempt from the Act because it constituted "maintenance work," which Missouri law defines to "mean[] 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." Mo. Rev. Stat. § 290.210(4). The Department instead concluded that the work constituted "construction," which is covered under the Act. The company sought review of this determination. The Supreme Court of Missouri agreed with the Department. The Court held that because the Act was "a remedial statute intended to prevent payment of substandard wages for work on public works projects," exceptions from the Act should be read narrowly. The Court thereby disagreed with a lower court's prior determination that exempt "maintenance work" was work that did not "change or increase . . . the size, type, or extent of the existing facility." Instead, the Court focused on the types of work that are defined as "construction," under the Act, namely "construction, reconstruction, improvement, enlargement, alteration, painting and decorating, or major repair." Mo. Rev. Stat. § 290.210(1). Specifically, the Court held, for example, that because "reconstruction" was covered under the Act, and because reconstruction is defined as reassembling "into its original form or appearance," the lower court's standard could not survive because that standard would result in expressly-covered work (reconstruction) being not covered since it would not "change or increase . . . the size, type, or extent of the existing facility." The Court further concluded that the various work expressly required by the contract fell under dictionary definitions of...