A05388 Summary:

BILL NO    A05388 

SAME AS    No same as 

SPONSOR    Lifton (MS)

COSPNSR    Titus, Cahill, Cook, Dinowitz, Gottfried, Ortiz, Paulin, Rivera,
           Benedetto, Englebright, Kavanagh, Cusick, Colton, Bronson, Perry

MLTSPNSR   Abbate, Abinanti, Clark, 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 NO    A05388 

02/20/2015 referred to governmental operations
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A05388 Votes:

There are no votes for this bill in this legislative session.
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A05388 Memo:

BILL NUMBER:A5388

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: 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:

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                         5388

                              2015-2016 Regular Sessions

                                 I N  A S S E M B L Y

                                   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    S 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    S  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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