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Redgrave v. Ducey - 8/19/2021

The Arizona Supreme Court holds that Arizona has not consented to damages liability for a state agency’s violation of the minimum wage or overtime provisions of the federal Fair Labor Standards Act.


A state-employed in-home caretaker brought a class action against the state of Arizona for violations of the federal Fair Labor Standards Act (“FLSA”).  The state removed the case to federal court, asserted sovereign immunity, and moved successfully for dismissal.

The employee appealed and, finding no controlling state law precedent, the Ninth Circuit certified to the Arizona Supreme Court the question: Has Arizona consented to damages liability for a state agency’s violation of the minimum wage or overtime provisions of the federal Fair Labor Standards Act?  The Supreme Court accepted jurisdiction and found the state has never given such consent.

The Court clarified that the federal Constitution does not delegate to Congress the authority to subject states to private suits for damages.  Absent consent to such liability, states maintain sovereign immunity.  In Arizona, the state constitution grants to the state legislature the power to determine when the state waives its sovereign immunity.

To determine whether or not Arizona had consented to liability in this case, the Court first explored what is required to evidence the legislature’s consent.  Relying on the standard used by federal courts, the Court determined the legislature’s consent must be “unequivocally expressed in the text of the relevant statute”—here, Arizona’s Actions Against Public Entitles Act (A.R.S. §§ 12-820 to -826) (the “Act”).  In analyzing the Act’s language, the Court found the legislature has consented to liability for violations of state law but not generally to damages for violations of federal law.

Accordingly, the Court held that Arizona could not be liable for damages under the FLSA because the state legislature has not unequivocally expressed consent to liability for such federal damages.

Chief Justice Brutinel authored the unanimous opinion.

Posted by: Payslie M. Bowman

Posted On: 9/16/2021