Senate Bill S2833

                                 BILL NUMBER:  S2833

 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

 FISCAL IMPLICATIONS :
No change in fiscal liability.

 EFFECTIVE DATE :
Immediately.