A05388 Summary:

BILL NOA05388
 
SAME ASSAME AS S07026
 
SPONSORLifton
 
COSPNSRTitus, Cahill, Cook, Dinowitz, Gottfried, Ortiz, Paulin, Rivera, Benedetto, Englebright, Kavanagh, Cusick, Colton, Bronson, Perry, Simon, Mosley
 
MLTSPNSRAbbate, Abinanti, Farrell, Galef, Glick, Jaffee, Lupardo, Markey, O'Donnell, Peoples-Stokes
 
Add S16, Civ Rts L
 
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 in Employment Act, and the Family and Medical Leave Act; also waives the immunity of all instrumentalities and political subdivisions of the state.
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A05388 Actions:

BILL NOA05388
 
02/20/2015referred to governmental operations
04/22/2015reported referred to ways and means
04/28/2015reported
04/30/2015advanced to third reading cal.259
05/11/2015passed assembly
05/11/2015delivered to senate
05/11/2015REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS
01/06/2016DIED IN SENATE
01/06/2016RETURNED TO ASSEMBLY
01/06/2016ordered to third reading cal.210
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A05388 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A5388
 
SPONSOR: Lifton (MS)
  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   FISCAL IMPLICATIONS: No change in fiscal liability.   EFFECTIVE DATE: Immediately
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A05388 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          5388
 
                               2015-2016 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 20, 2015
                                       ___________
 
        Introduced by M. of A. LIFTON, TITUS, CAHILL, COOK, DINOWITZ, GOTTFRIED,
          ORTIZ,  PAULIN,  RIVERA,  BENEDETTO,  ENGLEBRIGHT,  KAVANAGH,  CUSICK,
          COLTON, BRONSON, PERRY -- Multi-Sponsored  by  --  M.  of  A.  ABBATE,
          ABINANTI,  CLARK,  FARRELL,  GALEF,  GLICK,  JAFFEE,  LUPARDO, MARKEY,
          O'DONNELL, PEOPLES-STOKES -- read once and referred to  the  Committee
          on Governmental Operations
 
        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:
 
     1    Section  1. The civil rights law is amended by adding a new section 16
     2  to read as follows:
     3    § 16. Waiver of state immunity.  The state hereby waives its sovereign
     4  immunity with regard to all  claims,  actions  and  proceedings  brought
     5  pursuant  to  the  federal Americans with Disabilities Act of 1990 (P.L.
     6  101-336, as amended), the federal Fair Labor Standards Act of 1938,  the
     7  federal  Age  Discrimination  in Employment Act of 1967, and the federal
     8  Family and Medical Leave Act.  The provisions of such acts  shall  apply
     9  to the state, and any instrumentality or political subdivision thereof.
    10    §  2.  This  act  shall take effect immediately and shall be deemed to
    11  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.
                                                                   LBD03961-01-5
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