292.675. Definitions--on-site training required--workers to maintain documentation of completion of training--resolution or ordinance required--violations, penalty--rulemaking authority.
Definitions--on-site training required--workers to maintaindocumentation of completion of training--resolution or ordinancerequired--violations, penalty--rulemaking authority.
292.675. 1. As used in this section, the following terms shall mean:
(1) "Construction", construction, reconstruction, demolition,painting and decorating, or major repair;
(2) "Contractor", any person entering into a contract with a publicbody for construction of public works which employs on-site employees forpurposes of completion of the contract;
(3) "Department", the department of labor and industrial relations;
(4) "On-site employee", laborers, workmen, drivers, equipmentoperators, and craftsmen employed by contractors and subcontractors to bedirectly engaged in construction at the site of the public works."Directly engaged in construction" shall mean work performed in the actualerection of the structure or completion of the improvement constituting thepublic works. In addition, employees working at a nearby or adjacentfacility used by the contractor or subcontractor for construction of thepublic works shall be deemed on-site employees. Persons engaged solely inthe transportation of materials, fuel, or equipment to the site of thepublic works shall not be deemed to be directly engaged in construction;
(5) "Person", any natural person, joint venture, partnership,corporation, or other business or legal entity;
(6) "Public body", the state of Missouri or any officer, official,authority, board or commission of the state, or other political subdivisionthereof, or any institution supported in whole or in part by public funds;
(7) "Public works", all fixed works constructed for public use orbenefit or paid for wholly or in part out of public funds. "Public works"includes any work done directly by any public utility company whenperformed by it pursuant to the order of the public service commission orother public authority whether or not it be done under public supervisionor direction or paid for wholly or in part out of public funds when let tocontract by said utility;
(8) "Subcontractor", any person entering into a subcontract with acontractor for construction of public works which employs on-site employeesfor purposes of completion of the contract.
2. Any contractor for any public body for purposes of construction ofpublic works and any subcontractor to such contractor shall provide aten-hour Occupational Safety and Health Administration (OSHA) constructionsafety program for their on-site employees which includes a course inconstruction safety and health approved by OSHA or a similar programapproved by the department which is at least as stringent as an approvedOSHA program, unless such employees have previously completed the requiredprogram. All employees who have not previously completed the program arerequired to complete the program within sixty days of beginning work onsuch construction project.
3. Any employee found on a work site subject to this section withoutdocumentation of the successful completion of the course required undersubsection 2 of this section shall be afforded twenty days to produce suchdocumentation before being subject to removal from the project.
4. The public body shall specify the requirements of this section inthe resolution or ordinance and in the call for bids for the contract. Thecontractor to whom the contract is awarded and any subcontractor under suchcontractor shall require all on-site employees to complete the ten-hourtraining program required under subsection 2 of this section or suchemployees must hold documentation of prior completion of the program. Thepublic body awarding the contract shall include this requirement in thecontract. The contractor shall forfeit as a penalty to the public body onwhose behalf the contract is made or awarded, two thousand five hundreddollars plus one hundred dollars for each employee employed by thecontractor or subcontractor, for each calendar day, or portion thereof,such employee is employed without the required training. The penalty shallnot begin to accrue until the time period in subsections 2 and 3 of thissection have elapsed. The public body awarding the contract shall includenotice of these penalties in the contract. The public body awarding thecontract shall withhold and retain therefrom all sums and amounts due andowing as a result of any violation of this section when making payments tothe contractor under the contract. The contractor may withhold from anysubcontractor sufficient sums to cover any penalties the public body haswithheld from the contractor resulting from the subcontractor's failure tocomply with the terms of this section. If the payment has been made tothe subcontractor without withholding, the contractor may recover theamount of the penalty resulting from the fault of the subcontractor in anaction maintained in the circuit court in the county in which the publicworks project is located from the subcontractor.
5. In determining whether a violation of this section has occurred,and whether the penalty under subsection 4 of this section shall beimposed, the department shall investigate any claim of violation. Uponcompleting such investigation, the department shall notify the public bodyand any party found to be in violation of this section of its findings andwhether a penalty shall be assessed. Determinations under this section maybe appealed in the circuit court in the county in which the public worksproject is located.
6. If the contractor or subcontractor fails to pay the penalty withinforty-five days following notification by the department, the departmentshall pursue an enforcement action to enforce the monetary penaltyprovisions of subsection 4 of this section against the contractor orsubcontractor found to be in violation of this section. If the courtorders payment of the penalties as prescribed under subsection 4 of thissection, the department shall be entitled to recover its actual cost ofenforcement in addition to such penalty amount.
7. The department may establish rules and regulations for the purposeof implementing the provisions of this section. Any rule or portion of arule, as that term is defined in section 536.010, RSMo, that is createdunder the authority delegated in this section shall become effective onlyif it complies with and is subject to all of the provisions of chapter 536,RSMo, and, if applicable, section 536.028, RSMo. This section and chapter536, RSMo, are nonseverable and if any of the powers vested with thegeneral assembly pursuant to chapter 536, RSMo, to review, to delay theeffective date, or to disapprove and annul a rule are subsequently heldunconstitutional, then the grant of rulemaking authority and any ruleproposed or adopted after August 28, 2008, shall be invalid and void.
8. This section shall not apply to work performed by public utilitieswhich are under the jurisdiction of the public service commission, or theircontractors, or work performed at or on facilities owned or operated bysaid public utilities.
9. The provisions of this section shall not apply to rail gradecrossing improvement projects where there exists a signed agreement betweenthe railroad and the Missouri department of transportation or an orderissued by the department of transportation ordering such construction.
10. This section shall take effect on August 28, 2009.
(L. 2008 H.B. 1549, et al., A.L. 2009 H.B. 390)Effective 7-07-09
*This section contained an emergency clause, which makes the amendments effective upon the governor's signature on 7-07-09; however, subsection 10 mandates an effective date of 8-28-09.