Waives the state's sovereign immunity to liability for violations of the Americans with Disabilities Act of 1990, the Fair Labor Standards Act, the Age Discrimination Act, and the Family and Medical Leave Act; also waives the immunity of all instrumentalities and political subdivisions of the state.
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.
STATE OF NEW YORK ________________________________________________________________________ 383 2011-2012 Regular Sessions IN SENATE (PREFILED) January 5, 2011 ___________Introduced by Sens. KRUEGER, BRESLIN, DIAZ, DUANE, HASSELL-THOMPSON, HUNTLEY, PERKINS, STAVISKY, STEWART-COUSINS -- read twice and ordered printed, and when printed to be committed to the Committee on Codes 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 THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The civil rights law is amended by adding a new section 16 to read as follows: S 16. WAIVER OF STATE IMMUNITY. THE STATE HEREBY WAIVES ITS SOVEREIGN IMMUNITY WITH REGARD TO ALL CLAIMS, ACTIONS AND PROCEEDINGS BROUGHT PURSUANT TO THE FEDERAL AMERICANS WITH DISABILITIES ACT OF 1990 (P.L. 101-336, AS AMENDED), THE FEDERAL FAIR LABOR STANDARDS ACT OF 1938, THE FEDERAL AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AND THE FEDERAL FAMILY AND MEDICAL LEAVE ACT. THE PROVISIONS OF SUCH ACTS SHALL APPLY TO THE STATE, AND ANY INSTRUMENTALITY OR POLITICAL SUBDIVISION THEREOF. S 2. This act shall take effect immediately and shall be deemed to have been in full force and effect on and after February 21, 2001.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01046-01-1