In Alden v. Maine, 527 U.S. 706 (1999), the Supreme Court held that Congress did not have the power to subject state governments to lawsuits under the FLSA by their employees, and that states have “sovereign immunity” against such lawsuits. In a lawsuit filed by sergeants working for the Oregon State Police, the Oregon Court of Appeals was required to decide whether a state could waive the immunity from lawsuit granted by Alden. Oregon has a state law that provides that “every public body is subject to action or suit for its torts,” and Oregon courts have held that a claim under the FLSA is a tort covered by the state law.
The State contended that Alden established that a state’s waiver of sovereign immunity against being sued in its own courts on an FLSA claim must meet the Eleventh Amendment standard for waiver, which is a stringent one. In the State’s view, the state law did not meet that standard, because it did not expressly and unequivocally establish that the State has waived its sovereign immunity against being sued in state court on FLSA claims.
The Court of Appeals found that “the State misunderstands Alden.” Alden addressed “whether Congress has the power, under Article I of the federal Constitution, to subject non-consenting States to private suits in their own courts. Alden did not make the Eleventh Amendment standard for waiver of state sovereign immunity applicable to the question whether a state has waived its sovereign immunity against being sued in its own courts. Whether a state has waived its sovereign immunity against being sued in federal court, that is, whether it has waived its protection under the Eleventh Amendment against such actions, presents a federal-law question. Whether a state has waived its sovereign immunity against being sued in its own courts presents a state-law question.
“We are aware of no principle or authority, and the state has not identified any, that supports the idea that federal law controls the resolution of such a state-law question. Hence, we reject the State’s argument that the Eleventh Amendment standard for waiver of sovereign immunity applies to whether the state has waived its immunity against being sued on FLSA claims in state court.
“The State has not argued that we erred in our prior decisions that an FLSA claim is a tort claim. We adhere to that conclusion. It follows that the State has waived its sovereign immunity against being sued on such a claim in state court.”
Byrd v. Oregon State Police, 2010 WL 3155294 (Or. App. 2010).
This article appears in the December 2010 issue