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.)
