Senate Bill S726A

                                 
BILL NUMBER: S726A

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 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 ensure
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 author-
ize lawsuits by residents against their own states under the 11th Amend-
ment. 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 congres-
sional 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.  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. As with ADA, AREA 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.

 
DIFFERENCE BETWEEN ORIGINAL PRINT AND AMENDED VERSION:

The amended bill adds the words "in state and federal courts" because
case law has demonstrated that courts require very specific language to
waive sovereign immunity, stating that sovereign immunity is waived
"((o))nly where stated by the most express language or by such over-
whelming implication from the text as ((will)) leave no room for any
other reasonable construction." Atascadero State Hosp. v.  Scanlon, 473
U.S. 234, 239-240 (1985). Unless the intention to waive sovereign immu-
nity in state and federal courts is explicitly stated, courts interpret
the waiver for state courts only. See Galusha v.  N.Y. Dept't of Env't
Conservation, 92 F.Supp.2d 66 (N.D.N.Y. 1999); Port Ruth. Trans-Hudson
Corp. v. Feeney, 495 U.S. 299 (1990).

 
PRIOR LEGISLATIVE HISTORY:

2023-24: A6541 - Passed Assembly

2021-22: A7121 - Passed Assembly

2019-20: A1092 (Lifton)-Passed Assembly

2017-18: A2546 (Lifton)-Passed Assembly

2015-16: A5388 (Lifton)-Passed Assembly

2013-14: A828 (Lifton)-Passed Assembly

2011-12: A3689 (Lifton)-Passed Assembly

2009-10: A3651 (Lifton)-Passed Assembly

2007-08: A7653 (Lifton)- Passed Assembly

2005-06: A2159 (Lifton)- Passed Assembly

2003-04: A5511 (Lifton)- Passed Assembly

2001-02: A5971B (Luster)- Passed Assembly

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

TBD

 
EFFECTIVE DATE:
This act shall take effect immediately.