BILL NUMBER: S5208

SPONSOR: SANDERS
 
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 applica-
tion of the Americans with Disabilities Act of 1990; the Age Discrimi-
nation 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 Disabili-
ties 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 permit-
ting 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 over-
turned. 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 immu-
nity, 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: A2159; passed Assembly
2007-08: A7653; same as S6698 referred to Codes
2009-10: A3651; passed Assembly
2011-12: A3689; passed Assembly
2013-14: A828; passed Assembly
2015-16: A5388; passed Assembly
2017-18: A2546; passed Assembly.

 
FISCAL IMPLICATIONS:

No change in fiscal liability.

 
EFFECTIVE DATE:
Immediately