An obscure amendment to the U.S. Constitution has barred the doors of both state and federal courthouses in 23 states to state employees suing to enforce the federal Fair Labor Standards Act. And in this term, the U.S. Supreme Court will decide whether those doors will be barred to state employees with Age Discrimination in Employment Act complaints as well.

So what is the 11th Amendment, anyway? Here it is, all 43 words of it: "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state."

That's it, an obscure amendment that has received little judicial attention in this century. But it has become the focus of a major legal battle over the power that the federal government can exercise over state governments. The most recent skirmish, Alden v. Maine, U.S. Supreme Court No. 98-436 (June 23, 1999), involved the question of whether Congress could authorize lawsuits by state employees against the states that employ them for flsa violations. More about Alden v. Maine in a minute.

It's no secret to Supreme Court-watchers that the court, as a body, has grown more conservative in recent years. Sometimes judicial conservatism shows itself in decisions that tend to uphold property rights (as opposed to civil rights).

But one major area of liberal-versus-conservative Supreme Court conflict has been over the question of federal power versus state's rights. For the past 60 years, the proponents of federal power have been in the ascendancy. (The Civil Rights Act of 1964 probably marks the zenith of that phase in American judicial history.)

Over the past 10 years, however, states-rights proponents have begun growing in power. What gives the U.S. Congress the right to tell states that they must pay their employees time-and-one-half overtime, these states-rights advocates say, when there's nothing in the Constitution about overtime?

The Supreme Court took its first major swings at federal power in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) and City of Boerne v. Flores, 117 S.Ct. 2365 (1997). In Seminole Tribe, the court held that Congress has no constitutional authority under Article i (the "commerce clause") to limit state sovereign immunity. (Sovereign immunity is the legal doctrine through which a state can refuse to allow itself to be sued. Nearly half the states in the United States have retained at least some sovereign immunity.)

In City of Boerne, the Supreme Court ruled that Congress acted unconstitutionally when it passed the Religious Freedom Restoration Act, which established federal laws that regulated state activities. The court held that the rfra "redefined" the First Amendment's freedom-of-religion provision, rather than simply providing for enforcement. Both cases involved lawsuits brought in federal courts, and both cases resulted in findings by the Supreme Court that federal courts couldn't be used to sue states that had retained their sovereign immunity.

Now fast-forward to state probation officers from Maine with a complaint that Maine wasn't complying with the Fair Labor Standards Act. No big deal; the flsa authorizes these suits. But the U.S. District Court judge before whom the case was brought dismissed it, saying that, since Maine was one of those states that had retained its sovereign immunity (or at least enough of it to prevent it from being sued by its own employees), the Seminole Tribe case governed.

Well, under the Fair Labor Standards Act, when one door closes, another door opens, so the probation officers filed suit against their employers in Maine state courts. After all, the flsa contains a specific provision that allows private legal actions to be brought against a state in state court. The state trial judge dismissed that second case on sovereign-immunity grounds. So the probation officers appealed to the Maine Supreme Court (where they lost) and then on to the U.S. Supreme Court, where they lost again. In a 5-to-4 decision, the U.S. Supreme Court upheld the Maine Supreme Court.

Now, if you think the story I've just told you is complex, don't ever read the Alden v. Maine decision, or you'll suffer permanent damage. Suffice it to say that the majority in Alden held that Congress can enact a law that overrides a state's sovereign immunity only when it is addressing a constitutional (discriminatory) harm, and then only when such a law contains an unequivocal statement of intent to override that immunity - and the Fair Labor Standards Act doesn't fit those criteria.

The minority accused the majority of distorting the history of the 11th Amendment, leading to a decision that violates a fundamental principle of Anglo-American law: A law's protection will not be granted without a legal remedy to enforce it. The Alden minority argued that the probation officers had a right (protection under flsa), but the majority deprived them of a remedy (that is, they couldn't sue their employer in any court, state or federal).

In fact, the probation officers can file an administrative complaint with the U.S. Department of Labor, but dol is not staffed to act quickly. (The court system moves like the wind compared to dol.) In addition, dol can only prevent future violations; it has no legal authority to award damages for past employer violations.

The majority in Alden v. Maine noted that its ruling applied to state employees only: "(An) important limit to the principle of sovereign immunity is that it bars suits against states, but not lesser entities. The immunity does not extend to suits prosecuted against a municipal corporation or other governmental entity which is not an arm of the state...." (at p. 48; emphasis added)

This writer (among others) isn't clear about how far that statement will carry, but, for now, career firefighters in cities with histories of grudging compliance with flsa are not in immediate danger of losing access to state or federal courts to pursue their flsa claims. But don't forget that, in West, et al, v. Anne Arundel County, 137 F.3d 752, the 11th Amendment defense was, in fact, raised by the county. The District and Circuit courts ignored that defense, but didn't throw it out, either. [Ed.: See Lex de Incendiis, March 1999, available at ].

Sometime during this Supreme Court session, we'll learn more about where the court is going with the 11th Amendment. The court has agreed to hear three cases (grouped under Kimel v. Florida Board of Regents, No. 98-791) in which Florida and Alabama are being challenged by state employees who argue that their rights under the Age Discrimination in Employment Act have been violated. Florida and Alabama argue (no surprise) that they've retained their sovereign immunity, and thus are immune from suit in state or federal court by their own employees.

Some features of these cases make them worth watching. First, they involve a protected right (protection from discrimination on the basis of age).

Second, the cases involve a "clash of the titans" in the form of friend-of-the court briefs filed by heavyweight organizations like the American Association of Retired Persons, and, on the other side, 23 states: Connecticut, Delaware, Georgia, Hawaii, Idaho, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Utah, Vermont and Virginia.

And third, the Alden case created a furor in the community of legal scholars on which the Supreme Court relies as a sounding board, and a one-vote switch could leave Alden isolated as precedent.

One way or another, Kimel and its companions will change how federal laws apply to state, and perhaps local, government employees.

Conflict over comp time Harris County, Texas, which includes Houston, has established several principles of public-employee law over the years. The most notable recent case was Rankin v. McPherson, 483 U.S. 378 (1987), which established important principles of public-employee free speech.

During this term of the U.S. Supreme Court, Harris County will do it again. In Christensen v. Harris County, No. 98-1167, the Supreme Court will tackle the question of control over use of overtime compensatory time.

After the flsa amendments that brought public employees under the act's protection were passed in 1985, the Harris County Sheriff's Department paid its deputies overtime in the form of time-and-a-half comp time. In a lawsuit originally filed in 1994 by more than 120 Harris County deputies, they alleged that, when a deputy's overtime comp time was near the flsa limit of 480 hours, Harris County would order the deputy to start using it. If the deputy and his or her supervisor couldn't agree, the deputy was forced to use the comp time to suit the sheriff's department's staffing patterns.

A federal District Court judge ruled in favor of the employees, finding that the employees control use of their flsa comp time. The only control an employer can exercise is to refuse to allow comp time use on a particular day, if such use would disrupt the employer's operations. In other words, just as an employee can't take comp time solely at his or her convenience, neither can the employer force the employee to take comp time solely at its convenience.

But the 5th Circuit Court of Appeals overruled the District Court judge - and created a conflict with at least one other federal Circuit Court decision that was consistent with the District Court judge's ruling - so last year the case was appealed to the Supreme Court. On Oct. 12, 1999, it agreed to hear the case and hand down a national resolution of this dispute.

Two useful resources The American Bar Association has published two recent books of interest to fire service managers.

The first is "Religion in the Workplace: A Comprehensive Guide to Legal Rights and Responsibilities," by Wolf, Friedman and Sutherland. This book offers an excellent overview of legal issues that surround the interactions of religious belief and work life. With Congress considering another version of the Religious Freedom Restoration Act, and with religious-discrimination cases among the fastest-rising categories of eeoc complaints, "Religion in the Workplace" would be a good resource for fire chiefs and hr directors.

The second book is "Freedom of Speech in the Public Workplace," by Edwards, Leka, Baird and Black, a non-technical overview of the legal ground rules that govern free speech in the workplace and employer rights to limit workplace speech. It's especially useful for fire service managers, since fire service and law enforcement employer interests have historically been given greater weight than those of other public employers, which often results in fire and police free-speech legal clashes that wind up in court.

"Religion in the Workplace" ($69.95) and "Freedom of Speech in the Public Workplace" ($74.95) are available from the aba at 800-285-2221, or via their Web site, .