Virginia’s Powerful Top Employment Cop, Attorney General Mark R. Herring

By Steve Haner

The final state budget is still in negotiation, but it could add as many as five new enforcement staff to the Office of the Attorney General to seek out and prosecute discrimination in Virginia’s workplaces, using old and new definitions of what is prohibited. The price tag looks to be about $600,000 per year.

The Virginia Senate proposed budget amendments to that agency’s budget for three new people to enforce two pending Senate bills. The House of Delegates budget added five new lawyers and staff, based on its versions of those same two bills plus two additional bills granting the Attorney General new tasks and powers.

Some of the bills have been discussed previously on Bacon’s Rebellion. Both the House and Senate are passing versions of the Virginia Values Act (such as House Bill 1663 ) and both have bills to prohibit and punish discrimination against pregnant workers (see House Bill 827). That bill has not been discussed, but it creates the same opportunities for the aggrieved to sue in court for actual and punitive damages. 

The bill forcing employers with 100 or more workers in Virginia to file detailed payroll data with that office, House Bill 624, was watered down in a Senate committee late Thursday before passing. It was sent to the Senate Finance and Appropriations Committee, presumably to await the budget conference committee’s actions on the funding.  Other House versions of these bills rest with the same committee.

The substitute to House Bill 624 removes all the extensive reporting requirements, at least for now. Instead the Attorney General’s Office will start a stakeholder process to explore what information might be needed to start state-level enforcement of laws against wage and race discrimination, and how that might work. You can hear the lobbyists starting their meters for those upcoming meetings.

The Virginia Values Act was also amended, less drastically. As it passed initially, it allowed the aggrieved to ask for unlimited punitive damages, disregarding the $350,000 cap in Virginia law. The punitive damages cap was put back into the bill after a major lobbying effort by the business community, including some of the large companies that had initially endorsed the bill.

Finally there is House Bill 1418, which extends to very small employers, with at least five employees, the prohibition and penalties under state law for harassment and sexual discrimination. Along with new causes of action in civil court, it establishes the Office of Attorney General as a place to send complaints, and allows it take over the enforcement action.

Those four bills do not exhaust the new ways employers or businesses can be sued by their employees, applicants or customers. These are just the four bills expected to require immediate additions to Attorney General Mark Herring’s staff, because he will now be Virginia’s top employment cop.

Five new positions is not huge given the overall office headcount of 467 in the introduced budget. The staff is 50% more than the staffing level in the budget I submitted on leaving the office in 2002, before the office even had a separate Division of Human Rights and Fair Housing. Given what will be coming with these new laws, five positions may not prove adequate.

The Senate version of the budget includes a language provision to prevent Herring from seeking or accepting additional staff funded by outside entities. In other states, private activist groups have funded additional legal positions in state agencies dedicated to issues such as regulating carbon emissions or guns. That was prohibited for Virginia in the current budget cycle, but Governor Ralph Northam removed the restriction in his introduced budget bills.

While the Senate has put it back, an effort on the House floor to put the restriction into its budget failed last week, but it could reappear in the final conference report. Republicans warned that if this becomes the practice, there will be another Republican attorney general someday and Democrats will regret the precedent.

In several venues over the past few weeks, advocates worried about the flood of lawsuits coming and the possibility of unlimited punitive damages were usually met with no sympathy. One of the House bills had a provision allowing the defendant to recover attorney fees if the court found the complaint was clearly frivolous or brought in bad faith. That protection was promptly stripped out of the bill by the Senate.

It isn’t just the Office of the Attorney General growing stronger, of course.  Both the House and Senate are proposing more money and people for enforcement activities by the Department of Labor and Industry, which will be looking at the new state minimum wage, plus the new prevailing wage requirements for public contracts and other bills passing in 2020. The Senate wins the bidding there, with 13 new positions costing $2.5 million over two years. Here’s the Senate explainer:

(This amendment provides 13 positions each year and $1.2 million GF the first year and $1.3 million GF the second year to support additional personnel in the Labor and Employment Law Division at the Department of Labor and Industry. This amendment provides the necessary positions for the enforcement of the provisions of SB 7, SB 8, SB 48, SB 481, and SB 662, and requires annual reporting on the effectiveness of such enforcement activities.)

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16 responses to “Virginia’s Top Employment Cop Adds Enforcers”

  1. Reed Fawell 3rd Avatar
    Reed Fawell 3rd

    Within the past decade America has entered an era of highly politicized enforcement of statutory law against US citizens, corporations, and institutions, particularly as it applies to these sorts of statutes discussed above, wherein government and special interest now can and do orchestrate “Shake-downs” to achieve political and policy advantages.

    With the passage of these bills in Virginia, the Attorney General there can almost at will, harass and/or shut down most any small, even medium sized, business in Virginia, as well as any public school system in the state, witness recent events in Loudoun County.

    Hence the Republican warning Steve quotes regarding Virginia’s “workplaces”, “Republicans warned that if this becomes the practice, there will be another Republican attorney general someday and Democrats will regret the precedent.”

    The fascist / leftist state is growing like topsy in the Virginia Commonwealth, and its proponents have just started.

  2. Having viewed the photo included with this post, I think I’m going to sit this one out. I have a better than average vocabulary and I can express myself reasonably well most of the time, but there is no way I could adequately express how much I despise Mark Herring without using language which would result in Mr. Bacon having to ban me from his site.

    The idea that this newly enacted level of power will be in his hands makes me sick to my stomach.

  3. Steve Haner Avatar
    Steve Haner

    During my time as Director of Administration I wrote, for the webpage mainly, a summary description of the role of the office. The main thrust was that OAG is basically the state’s lawyer, advising and representing the governor and state agencies. The summary stressed that the office could not represent individuals with their claims or civil actions. The public assumption that the AG was “top cop” was inaccurate.

    That was then, and this is now.

    1. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      This expansion of the AG’s role is a trend I have long lamented and have commented on in this blog. But, the expansion can’t be blamed solely on Herring. The three AGs between Steve’s time in the office and Herring’s election were all Republicans: Kilgore, McDonnell, and Cuccinelli.

  4. Herring is not going to let these new employees sit around and do nothing. He’ll put them to work. They’ll find “discrimination” whether it exists or not. If your company’s workforce doesn’t have a demographic profile that matches that of the population at large, they will be declared to be guilty of discrimination. Given the educational disparities of our society, it is literally impossible for companies and organizations to have workforces that “look like Virginia” from a demographic point of view. Herring will be able to prosecute almost anyone he pleases.

    I suggest that he start with newspaper newsrooms and college faculties, which have the lowest rates of minority participation of almost anyone.

    1. Reed Fawell 3rd Avatar
      Reed Fawell 3rd

      You are exactly right. If Virginia retains its high ranking as a business location with these laws and leftist politicians, I’ll be shocked. Nor would I move there again or open a business there again as I have done several times in the past, if I had any reasonable alternative. The uncontrollable business risks are too high with this vicious, incompetent and politicized bunch. Indeed just holding a job there is highly risky if you exercise free speech.

      1. Reed Fawell 3rd Avatar
        Reed Fawell 3rd

        It is not just businesses these leftist are putting at risk, they are also hard at work destroying Virginia’s public education from top to bottom. This is an unfolding tragedy.

        Look at where they are headed at warp speed, starting with Loudoun County. Please read this horror show carefully, from one of the most liberal and best magazines in country, The Atlantic.

    2. johnrandolphofroanoke Avatar

      I believe you are correct about Herring’s push to quickly use his new powers. It will be necessary to continue the political rehabilitation of his image as Herring gears up for a big run 2021.

  5. Steve Haner Avatar
    Steve Haner

    Dick’s correct, and studying the numbers you can see that most of the growth in the office staff has been funded by grants, federal programs, payments from other agencies (in a word, non-general funds.) I resisted the lure of the grants but even the Republicans who followed did not. And as mentioned elsewhere, the Medicaid Enforcement division has exploded in size.

    But I do think this GA session and these bills highlight a change in role, which has been largely under Herring (and no different than other activist Democrat AGs around the U.S.)

    Update: Here is the substitute for HB 624, the payroll data reporting bill: they gutted it. Big lobby push did it in.

  6. Dick Hall-Sizemore Avatar
    Dick Hall-Sizemore

    The DOLI is going to be rolling in money. In addition to the 13 positions and $1.2 million proposed by the Senate, the Governor’s introduced budget had 2 additional positions and $206,093.

    The estimated costs seem high. First of all, I would need to see the details on how those estimates were reached, but it seems that they were based on salary costs out of line for the type of positions being described. Secondly, the cost estimates (and Senate amendments) for the first year are based on the full annual cost of a position. Those positions will not be filled on the first day of the fiscal year. It will take several months to advertise, interview and fill these positions. The estimates and amendment could be reduced by a third at least.

    Another cause of the overfunding is the overlapping nature of the work required by the bills. The fiscal impact statement for each bill (here is a good example of the function of FIS) had to be calculated in a vacuum; that is, as if it would be the only bill passed. One could not assume other similar bills would pass. But all the bills would result in the agency needed additional compliance officers. Surely, it is not going to be a case of one compliance officer inspecting an employer for compliance with minimum wage requirements and another looking at compliance with paid sick leave requirements. Because both issues could be covered by one officer in one visit, the total number of compliance officers needed could be reduced.

    More importantly, what is the relationship between DOLI and the AG’s office on these issues? It would seem that there could be overlap and duplication.

  7. johnrandolphofroanoke Avatar

    I don’t care for Herring one pinch of owl dung.

  8. djrippert Avatar

    “Five new positions is not huge given the overall office headcount of 467 in the introduced budget. The staff is 50% more than the staffing level in the budget I submitted on leaving the office in 2002, before the office even had a separate Division of Human Rights and Fair Housing. Given what will be coming with these new laws, five positions may not prove adequate.”

    In 2002 Virginia’s population was 7.277M, today it is 8.63M. That’s 18% growth. Meanwhile, the CPI has increased 37.49% over the same period. Combined, the increase is 55.49%. As much as I question the honesty and competence of our state government … that doesn’t seem too bad.

    Wouldn’t it be nice if our state government capped spending at population growth + inflation?

    1. Steve Haner Avatar
      Steve Haner

      We in the GOP Caucus were pushing that idea under Governor Baliles. Some states were adopting it at the time, and I think it is enshrined in a couple of state constitutions. With the General Fund, the state hasn’t strayed too badly off that. With the burgeoning non general fund it has. More on that once we have a budget conference report for Dick and I to dissect and perhaps argue about. 🙂

  9. TooManyTaxes Avatar

    I’ve read a number of briefs filed under Herring’s name. Judging solely on the level of analysis, his legal skills are sorely lacking. Many arguments ignore established law and make unsupportable claims. For example, one brief argued that states can regulate interstate commerce in the form of the Internet. Anyone with a modicum of knowledge about the Internet and telephony knows that data packets flow all over many networks and cross state boundaries. Moreover, the federal government’s powers to regulate interstate commerce and preempts the states from regulation are indisputable.

    Even an aggressive advocate needs to stay within the boundaries of the law. Herring is simply lacking.

  10. Peter Galuszka Avatar
    Peter Galuszka

    Maybe things are different but the NAAG says the role of an AG is to “serve the public interest” in matters of environmental law enforcement, consumer rights and so on. As far as i know the only GOP AG who actually did that was Cuccinelli.

    1. Steve Haner Avatar
      Steve Haner

      NAAG = National Assoc of Aspiring Governors.

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