BILL NUMBER:S383

TITLE OF BILL:
An act
to amend the civil rights law, in relation to waiving the state's
sovereign
immunity to claims under
the Americans with Disabilities Act of 1990, the Fair Labor
Standards Act of 1938, the Age Discrimination in Employment Act of 1967,
and the Family and Medical Leave Act

PURPOSE OR GENERAL IDEA OF BILL:
This bill waives
the State's
sovereign immunity with regard to application of the Americans with
Disabilities Act of 1990; the Age Discrimination in Employment Act of
1967; the Fair Labor Standards Act of 1938; and the Family and
Medical Leave Act of 1993 as they apply to the protection of state
employees. It also waives the immunity of all instrumentalities and
political subdivisions of the state.

SUMMARY OF SPECIFIC PROVISIONS:
This bill will
restore the rights of
state employees to sue the State of New York for damages due to
violations of the Americans with Disabilities Act (ADA), the Age
              

Discrimination in Employment Act (ADEA), the Fair Labor Standards Act
(FLSA) and preserve their rights under the Family and Medical Leave
Act (FMLA). This would allow the State of New York to be sued in
state or federal court for any violation of the rights of state
employees under these federal statutes, including the ADA's access
and accommodation standards. In addition, it will insure the right of
people with disabilities to bring a civil action against the state
for failure to provide access for the disabled public to government
services, programs and activities.

JUSTIFICATION:
On February 22, 2001, the US Supreme
Court ruled in
Board of Trustees v. Garrett that in the enactment of the ADA, the US
Congress had exceeded its power to authorize lawsuits by residents
against their own states under the 11th Amendment.

On January 11, 2000 the US Supreme Court ruled in Kimel, J. Daniel Jr.
v. Florida Board of Regents that in the enactment of the ADEA, the US
Congress had exceeded its power to authorize lawsuits by residents
against their own states under the 11th Amendment.

On June 23, 1999 the US Supreme Court ruled in Alden, John v. Maine
that a state's immunity from suit under FLSA is beyond congressional
power to abrogate by Article I legislation.

These rulings allow states to opt to hold themselves to the standards
that were originally set out by the ADA, the ADEA, and the FLSA prior
to those decisions by waiving their sovereign immunity and thereby
permitting


actions in state and federal courts. These rulings effectively
took away the protection for state employees under these laws while
upholding the same protection for privately employed individuals,
creating a disparity. This bill will ensure that all employees,
including those employed by the state, have the same protections as
they have had under the ADA since 1990 and under ADEA and FLSA since
they were amended in 1974 to include states. Waiver under the ADA
will provide redress for failure to accommodate state employees with
disabilities and failure to provide access for the disabled public to
government services, programs and activities.

On May 27, 2003, the US supreme Court ruled in Nevada Department of
Human Resources v. Hibbs that the family medical care provision of
FMLA is a valid exercise of congressional power to abrogate the
states' 11th Amendment immunity from suit by individuals, because it
remedies gender discrimination. Since then two of the six Justice
majority have been replaced, raising speculation that this decision
may later be overturned. In addition, the U.S. Supreme Court has not
yet ruled on the personal medical leave provision of FMLA. A number
of federal courts have concluded that the personal medical leave
provision of FMLA was not validly enacted under congress' enforcement
power, making it likely to be declared an invalid exercise of
Congressional power when it does reach the U.S. Supreme Court. As
with ADA, ADEA and FLSA, a state will be required to consent
unequivocally to a waiver of its sovereign immunity, to ensure that
state employees have the same protection as private sector employees
under the FMLA.

PRIOR LEGISLATIVE HISTORY:
2001-02: A.5971; Same as S.5493 Passed Assembly
2003-04: A.5511; Passed Assembly
2005-06: A.2159; Passed Assembly
2007-08: A.7653; Same as S.6698 Referred to Codes
2009-10: A.3651; S.2833

FISCAL IMPLICATIONS:
No change in fiscal liability.

EFFECTIVE DATE:
Immediately.