Bill seeks to waive immunity

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State legislators recently introduced a bill that they say would restore the rights of state workers to sue the state for damages under four federal acts.

But is the state willing to surrender its immunity to those cases?

State Rep. Cory Mason, D-Racine, is sponsoring an Assembly bill as a response to four recent U.S. Supreme Court decisions that he said eliminated the civil rights of more than 62,000 Wisconsin citizens. Those decisions eliminated the right to pursue damages from state employers who violate the Americans with Disabilities Act of 1990 (ADA), Age Discrimination in Employment Act of 1967 (ADEA), Fair Labor Standards Act (FLSA) or the medical leave provisions of the Family and Medical Leave Act of 1993 (FMLA).

“Until the Supreme Court did what it did in those four decisions, every citizen in the United States was covered under civil rights law,” Mason said. “We want to restore that right.”
Employment Law attorney Jeffrey S. Hynes said the Supreme Court decisions “categorically denied” state employees protections afforded their private sector counterparts.

“The message conveyed by this bill is that uniformity, consistency and fair treatment in the workplace are more important than the application of arcane legal doctrines that would deny employees the right to federally-mandated overtime and a discrimination-free work environment, simply because they choose to work for the state,” Hynes said.
Currently, unless a state waives its sovereign immunity, it cannot be sued for damages for violating portions of the ADA, ADEA, FLSA or FMLA.

But Wisconsin Department of Justice spokesperson Kevin St. John said that the bill is an unnecessarily broad and potentially expensive solution to a problem which does not appear to exist.

“We’re concerned that these changes are going to come with significant costs, but without the corresponding benefits in the substantive protections afforded the state,” St. John said.

Rise in Litigation?

St. John said that, if passed, the proposal could potentially lead to more litigation involving state employers.

A similar bill was circulated last session (Assembly Bill 822), but died in the state Assembly. A DOJ estimate at the time indicated that enactment of the legislation would add a cost of $1.5 million annually to the state’s Risk Management fund.

The Legislative Fiscal Bureau has yet to attach an estimate to the current bill, which does not even have a number yet. On Jan. 28, the Sen. Lena Taylor, D-Milwaukee, introduced SB 19, which is a companion bill.

But the estimate on last session’s bill did not include projected litigation costs or the need to hire additional staff at the DOJ, two things which St. John said could increase if the current bill passes.

“I expect there will be more litigation handled by the DOJ, and that may require the need for additional lawyers and possibly paralegals to handle the increase,” St. John said. “There will be a fiscal cost to this proposal.”

Mason conceded the fiscal concerns, but downplayed the notion that the bill would create more litigation.

Employment Law attorney Brenda L. Lewison also questioned whether passage of the bill would lead to more civil rights actions against state employers, since state law already offers some legal recourse for employees.

Lewison is also chair of the State Bar of Wisconsin’s Individual Rights and Re-sponsibilities Section, which is supporting the bill.

“State employees can already bring claims under the Wisconsin Fair Employment Act, and they do, although compensatory and punitive damages are not currently available under that act,” Lewison said.

A state employee can only seek punitive or compensatory damages in federal court.
In her experience representing both state and private sector employees, Lewison said people are generally interested in being treated fairly and not going to court.
“I don’t think this will open some sort of a floodgate of litigation, because people would rather have a good job then a good lawsuit,” Lewison said.

Narrow Focus

Mason said broadening the ability of state employees to seek damages in both state and federal court is a fundamental right of every citizen.

“We’re saying the state should waive its immunity so employees can have the same access to the courthouse that every other private employee has,” Mason said. “We’re not giving state employees something special here.”

Language in the bill indicates that state employers in violation of any of the four acts would be liable for back pay and other damages. A cap of $300,000 for emotional pain, suffering, inconvenience, mental anguish and loss of enjoyment of life is included for violators of the ADA.

But St. John suggested legislators should re-evaluate their solution to the perceived problem.

“If there is a substantive problem with the way state law protects individuals in this class, they can pass a law that addresses that issue more narrowly,” St. John said. “Pass a law without saying the state has to give up its rights in this area and allow Congress in the future to do what it likes.”