New opinion from AG Mark Herring says state universities and agencies can require a “living wage” as part of contracts with vendors

~ Opinion says state universities and agencies can require a “living wage” as part of contracts with vendors; overrules prior opinions of Republican AGs that stated a living wage could not be included in state contracts ~

In an important official opinion issued at the request of Senator Jennifer Boysko, Attorney General Mark R. Herring concludes that Virginia universities and state agencies may require government contractors to pay their employees a living wage, or at least a wage above the federal and state minimum. This opinion will help empower universities and other state agencies to secure higher wages for working Virginians as part of their contracting efforts. The opinion overrules prior opinions issued by Attorney General Kilgore (2002) and Attorney General McDonnell (2006) which said that state agencies and universities could not require a living wage in their contracts.

“Even before the COVID economic crisis, far too many Virginia families were struggling to make ends meet, as stagnant, low wages failed to keep up with ever-rising costs for rent, groceries, healthcare, childcare, and education,” said Attorney General Herring. “The Commonwealth and its agencies can set a higher standard, promoting wages that allow more Virginia workers to support themselves and their families, and reaping the benefits associated with higher wages.”

“I really appreciate Attorney General Herring taking on this important question, and I’m tremendously grateful that his opinion makes clear that the Commonwealth can take a leadership role in ensuring a living wage for more working men, women, and families in Virginia,” said Sen. Boysko. “Virginians should not have to work two, three, or four jobs to make ends meet, or work a full-time job that still doesn’t cover the bills or allow them to provide for their families. With this opinion, we can help raise the wages of more Virginians and help make Virginia a more worker-friendly state.”

The MIT Living Wage Calculator estimates that a true living wage in Virginia greatly exceeds the federal minimum wage of $7.25/hour or even the $9.50/hour that will take effect in Virginia on May 1. For example, MIT estimates the hourly wage necessary to support a family of four with two working parents is:

• $19.12 in Fairfax County
• $17.87 in the Charlottesville area
• $17.27 in Hampton Roads
• $17.15 in the Richmond Metro area
• $16.30 in Blacksburg/Christiansburg
• $15.46 in the Roanoke region

Attorney General Herring’s opinion makes clear that “nothing in the Procurement Act or other applicable law categorically prohibits public bodies from including such a [living wage] requirement in its solicitations.”

“There is no legal basis upon which I can conclude that public bodies lack the discretion to determine whether a living wage or other minimum wage requirement is properly included in solicitations under the Procurement Act… In fact, there is evidence demonstrating that the payment of a living wage by employers often improves the quality of goods or services produced. This is due to the effect a living wage generally has in making employees more productive, reducing turnover, and decreasing costs, which in turn often improves the quality of the goods and services produced,” Herring writes in the opinion.

Attorney General Herring concludes the opinion by stating: “It is my opinion that the Procurement Act provides public bodies with the discretion to determine whether it is appropriate to include in a solicitation the requirement that a successful bidder or offeror pay its employees or contract workers a minimum wage or a living wage, other than the wage levels required by federal and state law. Ample evidence exists to show that a living wage requirement can improve the quality of goods or services obtained by a public body.”