Apprentices’ Wage Rate Determined By State’s Annual Wage Order, Not US Labor Department’s Apprentice Program Specified Rate
05/20/08
8 CSR 30-3.030(2) states, “Every apprentice shall be paid at not less than the rate specified in the registered program for the apprentice’s level of progress, expressed as a percentage of the journeymen hourly rate for the class or type of worker specified in the applicable wage determination.” The question on appeal is whether the phrase “journeymen hourly rate . . . in the applicable wage determination” means the prevailing hourly wage rate or the rate specified by the contractor in an apprentice program registered with the United States Department of Labor that set forth the wages the apprentices were to receive. “In context, the only reasonable interpretation of that phrase is that an apprentice’s wages are based on a percentage of the prevailing rate paid to journeymen for the occupation as listed in the department’s annual wage order.” “Although the term is not defined by statute, ‘wage determination’ is consistently used interchangeably with the rate specified in the department’s annual wage order.”
Sub-contractor apprentice employees “are third-party beneficiaries of [general contract between general contractor and public entity], because the contract expresses the intent to benefit them as workers who fall under the prevailing wage law.” “Although [sub-contractor] is not a party to the general contract . . ., it is bound to the general contract’s employment terms by [its] written subcontract [with the general contractor].” RSMo. 408.020 allows interest on “all moneys after they become due and payable, on written contracts.” Therefore, apprentice employees are entitled to interest on all sums due them calculated from the date the wages originally became due and payable under the contract, and not the date that of the service of summons of the employees’ lawsuit. However, because RSMo. 290.300 does not provide for interest on top of a penalty of double the amount of unpaid wages and fringe benefits, apprentice employees “must elect their remedy. [Employees] can obtain a judgment for the underpaid wages and fringe benefits, and prejudgment interest on that amount from the date the wages were due and payable under the [subcontract]. Alternatively, under section 290.300, [employees] can recover double the difference between the amount of wages required and the amount paid, plus reasonable attorney’s fees. [Employees], however, cannot recover both double damages and prejudgment interest." State ex rel. Evans v. Brown Builders Electrical Co., Inc., Docket No. SC88574 (Mo. May 20, 2008).
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