SECOND REGULAR SESSION
[PERFECTED]
93RD GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVES FISHER (Sponsor), HUNTER, DETHROW AND ROARK (Co-sponsors).
Read 1st time March 1, 2006 and copies ordered printed.
Read 2nd time March 2, 2006 and referred to the Committee on Workforce Development and Workplace Safety March 9, 2006.
Reported from the Committee on Workforce Development and Workplace Safety April 4, 2006 with recommendation that the bill Do Pass. Referred to the Committee on Rules pursuant to Rule 25(26)(f).
Reported from the Committee on Rules April 6, 2006 with recommendation that the bill Do Pass.
Taken up for Perfection April 20, 2006. Bill ordered Perfected and printed, as amended.
STEPHEN S. DAVIS, Chief Clerk
AN ACT
To amend chapters 34 and 290, RSMo, by adding thereto eight new sections relating to public contracts.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Chapters 34 and 290, RSMo, are amended by adding thereto eight new sections, to be known as sections 34.078, 34.203, 34.206, 34.209, 34.212, 34.216, 290.095, and 290.097, to read as follows:
34.078. 1. Every employer doing business with the state under this chapter shall require each newly hired or rehired independent contractor to fill out a federal W-9 form. The forms shall be compiled, distributed, and entered into the state directory of new hires in the same fashion as set forth in subsection 1 of section 285.300, RSMo.
2. An employer shall not, in an attempt to avoid tax liability or reporting requirements for any employee, denote or treat such employee as an independent contractor, contract labor, or any other term or category implying the absence of an employment relationship.
3. Any employer who misclassifies an employee as an independent contractor or otherwise misclassifies the employee's employment status shall be fined an amount equal to the tax due on the employee's taxable wages or an amount equal to three times the tax due on the employee's taxable wages if it is shown that the employer's failure to report wages is due to bad faith.
4. An employer shall not terminate or in any manner discriminate against an employee because the employee has communicated to the employer the intent to seek reclassification as an employee instead of an independent contractor or has communicated the intent to file an action alleging a violation of this section.
34.203. The provisions of sections 34.203 to 34.216 shall be known and may be cited as the "Fairness in Public Construction Act".
34.206. The purpose of sections 34.203 to 34.216 is to fulfill the state's proprietary objectives in maintaining and promoting the economical, nondiscriminatory, and efficient expenditures of public funds in connection with publicly funded or assisted construction projects. Nothing in sections 34.203 to 34.216 shall prohibit employers or other parties covered by the National Labor Relations Act from entering into agreements or engaging in any other activity arguably protected by law, nor shall any aspect of sections 34.203 to 34.216 be interpreted in such a way as to interfere with the labor relations of parties covered by the National Labor Relations Act.
34.209. The state, any agency of the state, or any instrumentality thereof, when engaged in procuring or letting contracts for construction of a project that is funded by greater than fifty percent of state funds, shall ensure that bid specification, project agreements, and other controlling documents entered into, required, or subject to approval by the state, agency, or instrumentality do not:
(1) Require or prohibit bidders, offerors, contractors, or subcontractors to enter into or adhere to agreements with one or more labor organizations on the same or related projects; or
(2) Discriminate against bidders, offerors, contractors, or subcontractors for entering or refusing to enter or to remain signatory or otherwise adhere to agreements with one or more labor organizations on the same or related construction projects.
34.212. 1. The state, any agency of the state, or any instrumentality thereof shall not issue grants or enter into cooperative agreements for construction projects, a condition of which requires that bid specifications, project agreements, or other controlling documents pertaining to the grant or cooperative agreement contain any of the elements specified in section 34.209.
2. The state, any agency of the state, or any instrumentality thereof shall exercise such authority as may be required to preclude a grant recipient or party to a cooperative agreement from imposing any of the elements specified in section 34.209 in connection with any grant or cooperative agreement awarded or entered into. Nothing in sections 34.203 to 34.216 shall prohibit contractors or subcontractors from voluntarily entering into agreements described in section 34.209.
34.216. 1. For purposes of this section, the term "project labor agreement" shall be defined as a multi-employer, multi-union pre-hire agreement designed to systemize labor relations at a construction site that is required by the state or a political subdivision of the state as a condition of a bid specification for a construction project, thereby insuring that all contractors and subcontractors on a project comply with the terms of a union-only project labor agreement.
2. The state or a political subdivision of the state may enter into a union-only project labor agreement for the procurement of construction services, except as provided in section 34.209, on a project-by-project basis only on the condition that:
(1) The state or political subdivision must analyze the impact of a union-only project labor agreement and consider:
(a) Whether the union-only project labor agreement advances the interests of the public entity and its citizens;
(b) Whether the union-only project labor agreement is appropriate considering the complexity, size, cost impact, and need for efficiency on the project;
(c) Whether the union-only project labor agreement impacts the availability of a qualified work force; and
(d) Whether the scope of the union-only project labor agreement has a business justification for the project as bid;
(2) The state or political subdivision shall publish the findings of subdivision (1) of this subsection in a document titled "Intent to Enter Into a Union Project Labor Agreement". The document shall establish a rational basis upon which the state or political subdivision bases its intent to require a union-only project labor agreement for the project;
(3) No fewer than fourteen days but no more than thirty days following publication of the notice of a public hearing, the state or political subdivision shall conduct a public hearing on whether to proceed with its intent to require a union-only project labor agreement;
(4) Within thirty days of the public hearing set forth in subdivision (3) of this subsection, the state or political subdivision shall publish its determination on whether or not to require a union-only project labor agreement.
3. (1) Any interested party may, within thirty days of the determination of the state or political subdivision as set forth in subdivision (4) of subsection 2 of this section, appeal to the labor and industrial relations commission for a determination as to whether the state or political subdivision complied with subsection 2 of this section for a union-only project labor agreement as defined in subsection 1 of this section.
(2) The labor and industrial relations commission shall consider the appeal in subdivision (1) of this subsection under a rational basis standard of review.
(3) The labor and industrial relations commission shall hold a hearing on the appeal within sixty days of the filing of the appeal. The commission shall issue its decision within ninety days of the filing date of the appeal.
(4) Any aggrieved party from the labor and industrial relations commission decision set forth in subdivision (3) of this subsection may file an appeal with the circuit court of Cole County within thirty days of the commission's decision.
290.095. 1. No contractor or subcontractor may directly or indirectly receive a wage subsidy, bid supplement, or rebate for employment on a public works project if such wage subsidy, bid supplement, or rebate has the effect of reducing the wage rate paid by the employer on a given occupational title below the prevailing wage rate as provided in section 290.262.
2. In the event a wage subsidy, bid supplement, or rebate is lawfully provided or received under subsection 1 of this section, the entity providing and the entity receiving such subsidy, supplement, or rebate shall report the date and amount of such subsidy, supplement, or rebate to the public body within thirty days of receipt of payment. This disclosure report shall be a public record under chapter 610, RSMo.
3. The provisions of this section shall not apply if the provisions are in conflict with the National Labor Relations Act.
290.097. 1. Any interested person, employee, or an aggrieved contractor or subcontractor may allege a violation of subsection 1 of section 290.095.
2. If the division of labor standards determines that a violation of subsection 1 of section 290.095 has occurred, the division shall assess and collect a penalty on behalf of the public body. In determining the dollar amount owed to the public body, the division shall calculate double the dollar amount per hour that the wage subsidy, bid supplement or rebate has reduced the wage rate paid by the employer below the prevailing wage rate as provided in section 290.262 for each hour that work was performed.
3. If the division finds that the complaint filed under this section is frivolous and utterly without merit, or exhibits a pattern of harassing conduct on the part of the filing party, the commission may estop the filing party from filing further complaints against the charged party for a period of up to one year.
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