MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Here we are in January, 2022, and frustratingly, there is no ONE right answer to this question.[1]  Between OSHA, CDC, WHO, and NYSDOH, together with state-wide and local Executive Orders and states of emergency, the answer to this question is a big, tangled web.

That said, there are THREE things I can say for certain, and they do answer this question:

1.  Regardless of what Emergency Order, law, or regulation is in effect, libraries and museums that are operating in any way should be doing so per a written and routinely updated Safety Plan.[2]

2.  Regardless of what Emergency Order, law, or regulation is in effect, libraries and museums operating under a Safety Plan that involves use of PPE and sanitization supplies should provide that equipment.[3]  Libraries relying on social distancing should continue to demarcate areas where it must be maintained.

3.  Regardless of what Emergency Order, law, or regulation is in effect, libraries and museums operating under a written Safety Plan that involves employer-required testing must provide those tests.[4]

Again: while different laws, regulations, and orders create these three obligations, I can say that they remain.

After that, I can only say: when updating Safety Plans (which should either be done, or ruled out, monthly, and ad hoc as guidance changes), libraries should confirm their obligations with either their lawyer or their local health department.

For libraries looking for a model, a good place to start is the HERO Act template found at  https://dol.ny.gov/system/files/documents/2021/09/p765-ny-hero-act-model-airborne-infectious-disease-exposure-prevention-plan-09-21_0.pdf.  For municipal libraries that operate largely in conjunction with their municipal government (sharing HR policies, hazard response plans, etc.), it might be appropriate to look to their municipality's mandated[5] "Public Health Emergency Operations Plan."

I realize this doesn't eliminate the need to swim in the alphabet soup of authorities offering different, and sometimes divergent, guidance.  But by relying on your local health department to confirm obligations, hopefully a library can focus more energy on its mission to serve its community...while also demonstrably living up to its duty to safeguard its workforce.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This question is an example of why clear, precise writing is so important.

To make sure no reader is in suspense, first I'll answer the member's question: I intended the guidance to convey the member's interpretation (with the information about accession, cataloging and appeal policy being supplied only after a parent expresses concern).

Re-reading my answer, I can see how the member’s president interpreted this guidance not as a reaction, but as a preemptive strategy to head off parental concerns.[1]  But that is NOT the guidance I intended, and I have since added a footnote[2] to the original posting to clarify that.[3]

While I have your attention on this, I will add: except for factors required by law (like requiring working papers, limiting certain activities in certain industries, and abiding by child labor laws), I don't advise treating minor employees differently than any other employee. If a library wouldn't contact the parents of a 40-year-old worker to alert them to the fact that, from time to time, a library worker may be exposed to content or communications they find objectionable, it shouldn't be done for a 17-year-old either. Except for when it is required by law, employees should not be differentiated by age, just as they should not be differentiated by gender, race, or religion.

Thank you very much to the member for giving me this chance to post a clarification, and this caveat.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Ooh, an ontological question!

I am not sure about the basis of the past legal input mentioned in the question, differentiating a "policy" from a "handbook," but I (mostly) agree with it.

I (mostly) agree with it because, in both state and federal labor law, the term "policy" is generally used to refer to a stand-alone set of rules governing the terms of employment.[1]  Examples of policies required by law include:

• Sexual Harassment Policy[2]
• Prevention of Airborne Disease[3]
• Whistleblower Policy[4]

In both common usage and in the law, when such policies are gathered together, they become a "Handbook."[5]  Many times, at the advice of lawyers,[6] employers then annually distribute a copy of this "Handbook," and (as in the member's question), require employees to acknowledge it.

The tricky thing is that once an employer has taken the step to pull the policies and create a "handbook" (again, with the name not being important...the important part being that there is some collection of policies, distributed to employees), the law may put additional obligations on the employer regarding the content.

For instance, Labor Law Section 203-e (6), which bars discrimination on the basis of an employee or their family member using reproductive services, states: " An employer that provides an employee handbook to its employees must include in the handbook notice of employee rights and remedies under this section" [emphasis added].  In other words: if the company has no handbook, there is no mandatory inclusion of the notice...but if there IS a "handbook," the notice must be part of it.

The term "handbook," used to mean a collection of employee policies, is also part of the recently passed HERO Act.[7]  It takes the same approach as Labor Law 203-e: if a handbook is handed out to employees, the required Airborne Infectious Disease Plan must be distributed with it (or at least, in the same manner as it is distributed).

Now, for the member's precise scenario: What about when a document that really is just one "personnel policy," but has different sections/rules and a section for the employee to acknowledge receipt?

Based on how the various employment laws in New York use "policy" and "handbook," I feel very comfortable saying that any document that aggregates an employer's rules on more than one topic (say, "progressive discipline," "appropriate attire" and "vacation") and is distributed to employees is--no matter what you call it--a "handbook." 

Or as I have put in this illustrative limerick:

One rule to another said: "Look,

Here's something that has me quite shook

We rules stand alone

In a "policy zone"

But together, we are a handbook!"

Thank you for a chance to do this research and to write this dubious verse about it.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

[NOTE: for background to this short answer, please see the much longer "Ask the Lawyer" https://www.wnylrc.org/ask-the-lawyer/raqs/205, that addresses the tightrope walk/legal minefields of employee background checks.]

So, does a school district public library[1] implementing a background check for new employees have to also check their current ones?

The answer is: no; barring an over-ruling requirement (such as a term in a union contract) a library board can implement a background check policy for all hires going forward, without imposing a "retroactive check" requirement for current employees. 

However, I would never advise that approach.  Here are three reasons why:

1.  Possible discrimination

A policy to only check the backgrounds of "new" employees could have a disproportionate impact on candidates on the basis of age, or gender, or race (to name a few).  By not checking everyone, an employer risks the appearance of (or actual occurrence of) illegal discrimination.

2.  Possible liability

Employee background check policies are implemented to reduce risk.  If an employer is using employee background checks to reduce risk, there should be a very good reason for not checking all employees (such as a union contract that bars it[2]), or the employer risks a claim of negligence.

3.  Worker relations

A work environment should be a place of high trust.  By subjecting one class of employees ("new" employees) to heightened scrutiny, in addition to the possible concern mentioned above in "1," it creates an unbalanced environment for trust.  This is bad for morale.

I appreciate that background checks can come with a cost, so minimizing their frequency is helpful.  I encourage any library implementing such a policy to check with their "Directors & Officers Insurance" carrier, since sometimes, carriers offer resources to defray and even pick up the costs of the check.

Thank you for a thoughtful question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This submission stands at the complicated crossroads of First Amendment, employment law, library ethics, and equal protection.[1]

As such, I could write on this topic endlessly.  But "Ask the Lawyer" is not here to provide endless commentary, but rather, helpful guidance inspired by real-world questions. 

So here is some (hopefully) helpful guidance, centered on a real-world example (culled from my summer reading):

I recently read a powerful graphic novel called "I Know What I Am"[2] about the life and times of artist Artemisia Gentileschi.

Gentileschi was a powerhouse painter in the 17th century.  She was also a survivor of sexual assault, a businesswoman, and a mother who, as portrayed in the comic book, channeled her experiences into her painting.

"I Know What I Am" pulls no punches depicting Gentileschi's life.  The artwork--which re-creates many of Gentileschi's own works, including her different versions of "Judith Slaying Holifernes"[3]--is stark, bloody, and riveting.[4]  The portrayals of sex and sexual abuse do not leave much blood in the gutters.[5]

Of course, as a literary work, "I know What I Am" checks all the boxes for not triggering a charge of "obscenity" as defined in New York (including having literary merit).  But that said, select panels from the book could very easily be regarded as inappropriate for some audiences--and not just for "minors."  The content is very raw, and for those sensitive to certain topics, could exacerbate or evoke trauma.

None of that, of course, creates a legal violation caused by the content itself--even if it is in a library being shelved by a 14-year-old--but it does show why there is a need to consider questions such as those raised by the member. 

Which, using "I Know What I Am" as a focal point,[6] I will now do.

First question:  [Is] minors viewing pornography ... flat-out illegal?

Answer:  The word "pornography" does not appear in the New York State Penal (criminal) Law.  Rather, New York uses numerous defined legal terms (such as "harmful to minors,"[7] "obscenity,"[8] "indecent material"[9] and "offensive sexual material"[10]) to describe criminal acts that can lead to a charges based on providing access to certain content under certain circumstances (including to people of a certain age). 

However, because of the defenses very carefully built into these laws, none of these concepts can be accurately applied to a properly cataloged item being accessed by a minor who is doing their defined job per library policy.

That said, both internet porn and content with undisputed literary merit such as "I Know What I am" could be handled or displayed in a way considered harassing (a civil rights violation), damaging (a personal injury claim), or criminal if the access is gained or forced on/by a minor without adherence to collection and library policies, and job descriptions.

Here are some examples as to how that could happen:

• A library employee retrieves books with suggestive titles or sexual content and repeatedly leaves them in another page's locker as a prank, and even when it is reported, the library does nothing to prevent it from recurring (sexual harassment);
• A clerk knowingly and with intent to harm directs a page who is a recent sexual assault survivor to create a book display of "I Know What I Am" [11] (risking a charge of sexual harassment; possible personal injury); worker's comp claim);
• A community member donates a stack of old "adult" books for the annual book sale and the director knowingly assigns a 14-year-old to inventory them (risking a charge of material harmful to minors, which requires a "sale" element to be actionable);
• A patron repeatedly violates the library's policy about viewing sexual content on publicly viewable computers, and no one corrects the serial policy violation (risking a charge of display of sexual material, as well as sexual harassment).

Aside from the legal concerns caused by these types of extreme examples, of course, there is the very real and practical concern that parents of a minor employed by a library could take issue with some of the content their child has to work with...even if it is entirely legal.

In that regard, I can only say that inviting concerned parents to review the library's well-thought-out accession, cataloging, and appeal policies is a pro-active way to ensure parents know that the library takes both its role as an employer of their child, and as a champion of a community's intellectual freedom, seriously.[12]  Parents or guardians of minors working in New York will have already had to sign working papers; no waiver or disclaimer should be further required.[18]

Which brings us back to the point the member raised in the beginning of their question: the importance of having--and enforcing--policies that govern accession, appeal, cataloging, display, and sexual harassment/discrimination (careful adherence to job descriptions and good training on how to enforce policy in the moment are essential, too).[13]

In New York, both the criminal and civil law contain robust protections for libraries working with material some may find inappropriate, offensive, or challenging, but those protections do rest on proof of operating in harmony with the law.  By having clear policies and documenting adherence to them, a library can be ready to weather accusations of illegal conduct. 

Which brings us to the member's last questions:

Assuming a set of library policies structured as you have previously advised, what, if any, liability does a library have for minors inadvertently viewing adult pornography?

If the viewing was truly "inadvertent," and any policy violation that allowed it to occur is quickly corrected, nothing further is needed.[14]

And what, if any, modifications to hiring, training, and workplace procedures do you recommend for minor employees?

Speaking as a former "minor employee" of a public library,[15] a good employee orientation, and regular reinforcement, on the fundamentals of library ethics and the policies that protect employees is a very valuable thing. 

This is already something most libraries are doing, but here are some helpful points to reinforce:

• Prior to hire, a minor employee should review the job description with their supervisor, and have a chance to ask questions;
• All employees must be trained to respect patron confidentiality and be trained on how to deftly demur requests by third parties for patron information;[16]
• All employees are entitled to respectful treatment from patrons and co-workers, and should know to whom they can direct questions and concerns about their employee experience;
• The library has a suite of policies for selecting, challenging, cataloging, and weeding books, and minor employees who might not have direct responsibility under those policies should know they exist, and how to direct questions about them;
• Minor employees, in particular, should be trained on how to immediately report observed or reported policy violations (including those related to pornography and harassment);
• Library employees who are not legal adults (18) should feel free to ask questions, should know to whom those questions and concerns can be directed, and should get meaningful and timely answers so they feel respected.

All of this should be reflected in a hire letter or orientation packet, so parents, if they choose to ask their child to view the terms of their work,[17] can do so.

Not too much to remember in your day-to-day life keeping the library up and running, right???

Thank you for an excellent question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This...is a big question.  It's only three short paragraphs.  But it's BIG.

It's "BIG" because the risks of getting this topic wrong are immense--from not only the obvious risks involving legal concerns, but risks involving ethics, privacy, and the goal at the heart of the issue: safety.

It's also BIG because the phrase "background check" is not tied to a precise or static definition.  When someone says "background check" in the context of employment, here are just a few of the things it could mean:

• Criminal background check
• Credit check
• Military service separation check (form "DD 214")
• Motor Vehicle Records ("MVR") check
• Transcript and education records check (including student disciplinary records)
• Licensing/professional oversight body (medical board, bar association, etc.) check/confirmation of good standing
• Civil litigation history review
• Reference check
• Previous employment verification
• Social media/publications check

Each of these "checks" comes with a wide array of legal requirements--or typical legal cautions--governing its use.

For instance:

• A criminal background check should only be used by an organization if it has an up-to-date "Criminal Background Check Policy," because in the state of New York, denying employment based on a criminal conviction requires the employer to do a precise analysis (of which the denied applicant can request a copy).[1]
• A credit check should only be used by an organization if it has an up-to-date "Credit Check Policy" to ensure the regulations in the Fair Credit Reporting Act ("FCRA") are being followed.[2]
• A MVR should only be used by an organization if it has an up-to-date "MVR Check Policy" that clearly sets out the types of moving violations and other records that would flag a basis for non-employment.[3]

For all types of checks, the institution using them should have a clear policy governing what jobs require them, and how such records are evaluated, maintained, and disposed of.

And finally: when developing, implementing, and routinely using any type of background check policy, an organization is wise to take care that it is not incorporating factors that can be shown to disproportionately negatively impact (i.e., discriminate against) a particular category of applicant.   

Okay, with all that off my chest, let's answer the actual questions.

First question:

Do background checks, fingerprinting, etc., need to be done for all positions?

The degree to which background checks and documentation of identity must be performed are governed by two things: what is legally required, and what the risk management practices of an institution dictate. 

These two factors mean that practices will vary from place-to-place.  A librarian working within a public school district in the state of New York will be subject to a criminal background check and must be fingerprinted[4] just as any other regular employee within their district. A librarian at a public or association library is not required by law to have a criminal background check, nor to be fingerprinted,[5] but an institution could decide, for risk management purposes, that a position requires that level of scrutiny for safety and security.  

Second question:

Does it need to be posted in the job advertisement that there will be a background check for the successful candidate or all finalist applicants?

There is no requirement in the law that a job advertisement has to disclose a background check in the job advertisement.  However, prior to obtaining and using any information from a third party whose business it is to provide background information, an employer must notify an applicant; this notice must be in writing and in a stand-alone format.  Further, before a negative decision is made based on such information, it must be disclosed to the applicant.  A good resource on this is the Federal Trade Commission,[6] but the third party provider, if they are a true professional, will provide the forms for each of these steps.

Now all that being said, it may be that some local hiring procedures or collective bargaining agreements require the disclosure of background checks in a job notice.  Further, some employers may want to disclose their intent to use a background check to avoid surprising candidates further into the process.  There is no bar to making such an early disclosure, but if given, such notices should be carefully drafted to avoid implying that those with arrests or criminal convictions[7] will not be considered for the position.

Third question:

Can the background check need to include a financial check and a legal check?

Yes, absolutely. A background check can include a credit check, a search for liens and other debt instruments, a review of criminal history, a consideration of driving record, and any combination of the items I listed at the top of this reply.  Just be careful: if your library or system relies on a third party to supply that information, it must follow the guidance from the Federal Trade Commission (see that link in footnote 6).

Okay, at this point, I have to re-emphasize: before using any type of check, a library should have a policy covering that type of check, and that policy should cover all check-specific legal compliance, as well as: when the check is conducted, how it is conducted, how the information is used, and how the documents related to it are disposed of/retained. [8]

When developing such a policy, a good rule of thumb for an institution considering any type of background check is to be able to clearly answer the question: "Why are we doing this check?"  While the reasons will vary, the answer should always relate to the essential functions listed in the job description, and the nature of your library.

For instance: if a position will create opportunities for a person to spend unsupervised time with vulnerable populations, a criminal background check and rigorous prior employer check is wise.  If a position requires a particular credential, verification of that credential makes sense.  And if you are hiring someone who will frequently have to drive the bookmobile, a motor vehicle records check is almost always imperative.

On the flip side: if a person is being hired for a job that doesn't require driving, a "current driver's license" should not be required. If a person will never have access to financial information or fiscal resources, a credit check is likely not necessary. And if a would-be library clerk has a DWI that is 20 years old--and no other criminal history--it is likely the conviction is not a basis to eliminate them from consideration.

Last question (and it's another biggie):

And tangentially, am I correct in my assumption library staff are not considered mandated reporters? Are there guidelines for this as well?

"Mandated reporters" is a legal term under Section 413 of the NY Social Services Law.  Professionals listed in that section are required to make a report when they:

 "...have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child, [OR] when they have reasonable cause to suspect that a child is an abused or maltreated child where the parent, guardian, custodian or other person legally responsible for such child comes before them in their professional or official capacity and states from personal knowledge facts, conditions or circumstances which, if correct, would render the child an abused or maltreated child."[9]

I have placed a list of the "Mandated Reporters" set by Section 413 below this answer. As you can see by reviewing the (long) list, library employees (unless their function also fits into one of the categories listed in 413) are NOT Mandated Reporters.

Of course, a library--or an institution that hosts a library--can decide and enforce via policy that its employees have an affirmative duty to report observed or suspected child abuse (or any abuse) that occurs on their property or in their programs.  Many insurance carriers actually require their insureds to have such a policy.[10]

[NOTE: If an employer has any type of "report abuse" policy, employees should be trained on how to make such reports no less than annually.  The average person can have a trauma response to witnessing abuse, which can impact their ability to report it, as well as negatively affect their well-being.  Routine training on how to recognize and report concerns, and experienced support for reporters, can help with this.]

Thank you for an important series of questions.

List of "Mandated Reporters" under Section 413 of the Social Services Law (also called "human services professionals[11]"):

...any physician; registered physician assistant; surgeon; medical examiner; coroner; dentist; dental hygienist; osteopath; optometrist; chiropractor; podiatrist; resident; intern; psychologist; registered nurse; social worker; emergency medical technician; licensed creative arts therapist; licensed marriage and family therapist; licensed mental health counselor; licensed psychoanalyst; licensed behavior analyst; certified behavior analyst assistant; hospital personnel engaged in the admission, examination, care or treatment of persons; a Christian Science practitioner; school official, which includes but is not limited to school teacher, school guidance counselor, school psychologist, school social worker, school nurse, school administrator or other school personnel required to hold a teaching or administrative license or certificate; full or part-time compensated school employee required to hold a temporary coaching license or professional coaching certificate; social services worker; employee of a publicly-funded emergency shelter for families with children; director of a children’s overnight camp, summer day camp or traveling summer day camp, as such camps are defined in section thirteen hundred ninety-two of the public health law; day care center worker; school-age child care worker; provider of family or group family day care; employee or volunteer in a residential care facility for children that is licensed, certified or operated by the office of children and family services; or any other child care or foster care worker; mental health professional; substance abuse counselor; alcoholism counselor; all persons credentialed by the office of alcoholism and substance abuse services; employees, who are expected to have regular and substantial contact with children, of a health home or health home care management agency contracting with a health home as designated by the department of health and authorized under section three hundred sixty-five-l of this chapter or such employees who provide home and community based services under a demonstration program pursuant to section eleven hundred fifteen of the federal social security act who are expected to have regular and substantial contact with children; peace officer; police officer; district attorney or assistant district attorney; investigator employed in the office of a district attorney; or other law enforcement official.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Here's something positive and affirming I can say: it's possible that the members expressing different opinions on the member directors' list are actually all correct.

That’s because, while I can't give one "clear yes or no answer" to this question, I can give five...five answers based on different scenarios about the facts "before an employee comes to work," including their symptoms, COVID exposure, and the safety measures needed to reduce the risk of COVID transmission in their workplace.

Here the five scenarios are:

Scenario 1

Yes, an employer must (and therefore, can) require a COVID test before an employee returns to work,[1] if the employee reports symptoms as part of routine screening.[2]

Scenario 2

Yes, an employer must (and therefore, can) require a COVID test before an employee returns to work, if an employee is symptomatic upon arrival at work or becomes sick with COVID-19 symptoms while at the workplace, absent close or proximate contact with a person with COVID-19.[3]

Scenario 3

No, an employer does not have to, and has no basis to, require a negative COVID test before an employee comes to work, if the employee is working 100% remotely at home or in a location not at all controlled or at the direction of the employer.[4]

Scenario 4

No, an employer may not require a negative COVID test before an employee comes to work, IF the employee has a medical basis to not be tested; without a negative test, however, if certain screening factors were tripped (such as those in item 2, above) the employer will have to enforce other prescribed measures to comply with state requirements and reduce the risk of transmission within the workplace, such as a mandatory quarantine.[5]

Scenario 5

Yes, an employer can require a negative COVID test before an employee comes to work, if an established safety plan based on applicable OHSA guidance and the employee's job duties warrant that level of caution.[6]

Conclusion

I am not surprised you were unable to find a clear answer from a single reliable source, as these five scenario-based answers had to be cobbled together from two separate documents from the New York State Department of Health, which when combined, require employers to:

"Implement mandatory health screening assessment (e.g. questionnaire, temperature check) before employees begin work each day and for essential visitors, asking about (1) COVID-19 symptoms in past 14 days, (2) positive COVID-19 test in past 14 days, and/or (3) close contact[7] with confirmed or suspected COVID-19 case in past 14 days. Assessment responses must be reviewed every day and such review must be documented."

AND

"An individual who screens positive for COVID-19 symptoms must not be allowed to enter the office and must be sent home with instructions to contact their healthcare provider for assessment and testing." [emphasis added]

AND

"If an employee tests positive for COVID-19, regardless of whether the employee is symptomatic or asymptomatic, the employee may return to work upon completing at least 10 days of isolation from the onset of symptoms or 10 days of isolation after the first positive test if they remain asymptomatic."

AND

"If an employee has had close or proximate contact with a person with COVID-19 for a prolonged period of time AND is experiencing COVID-19 related symptoms, the employee may return to work upon completing at least 10 days of isolation from the onset of symptoms."

AND

"If an employee has had close or proximate contact with a person with COVID-19 for a prolonged period of time AND is not experiencing COVID-19 related symptoms, the employee may return to work upon completing 14 days of self-quarantine."

AND

"If an employee is symptomatic upon arrival at work or becomes sick with COVID-19 symptoms while at the workplace, absent close or proximate contact with a person with COVID-19, the employee must be separated and sent home immediately and may return to work upon completing at least 10 days of isolation from the onset of symptoms OR upon receipt of a negative COVID-19 test result." [emphasis added]."

And there you have it. I am not sure if this will make things clearer, but hopefully I have added some clarity to the uncertainty. 

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This is an incredibly sensitive, important, and complex set of questions.  I know a lot of people out there in "library land" are waiting on the answer—from many different perspectives.

So we're going to take it slow, break it down, and unpack the components of the answers one step at a time.

Step 1: Considering requiring immunization to COVID-19 as part of a library's evolving Safety Plan

As I have emphasized in numerous pandemic-related answers, any library operating in any capacity right now should have a trustee-approved Safety Plan tailored to its unique operations.  The plan should evolve as new safety-related information emerges, and as library operations change.

As of this writing,^[1] some libraries are open to visit.  Some are doing only curbside.  Some are offering more remote programming.  Some have used their information management and lending capacity to distribute PPE, food, and living supplies.  Because of this diversity of service, they all should have different Safety Plans.

The Safety Plan of a library closed to the public for everything but curbside will be different from the Safety Plan of a library open for socially distant use of computers and lending.  The Safety Plan of a library distributing fresh produce will be different from a library streaming programming from its community room to an audience within its area of service (and beyond).  The Safety Plan of a library operating with ten on-site staff in December should be different from the one they used when there was only one employee on-site in June.

Just like the decision to use a particular mode of sanitization, as a library undertakes and changes its unique services, the decision to require immunization of employees should start with vaccination's role not as a stand-alone solution, but as part of an overall approach to limiting the impact of the pandemic on your library, its employees, and your community.  Do the services your library needs to provide the community warrant immunization of employees?  If so, keep reading.

Step 2:  Wait, so does what you said in "Step 1" mean a public library can go ahead and require employees to be vaccinated?

Yes...and NO.

I say "yes," because under the right conditions, the law does allow employers to impose conditions for safety, and that can include mandatory vaccination.^[2]  However, I also say "NO," because the phrase "the right conditions" carries a lot of complexity for three little words.  To be safe, the default assumption of a library^[3] should always be that it can't require immunization of its employees...and then work to find the way, if well-informed risk management and an updated Safety Plan warrants it, it can require immunizations (and just as critically, if it should).

Step 3: Assessing if a library can require vaccination of employees

Before a library gets too far into an internal debate about if it should amend its Safety Plan to require vaccination of employees, it should assess if it is in a position to do so.  This means having an experienced HR administrator or attorney look at the organization's bylaws, policies, and employment relationships to see if there are any steps or bars to the requirement.

What could such a bar look like?  The most common impediment a library will run into on this is an employment contract—either for individual employees, or with an entire employee union (a "collective bargaining agreement").  The bottom line on this type of impediment: if there is a contract in play, a library must be very tactical, collaborative, and strategic prior to creating—or even considering—immunization as an employment condition.^[4]

Another bar might be language in an employee handbook or a pre-pandemic policy.  Still another might be that "gray area" when library employees are considered employees of a school district, village, or town.

The best overall guidance I can offer on this Step is: assessing if your library is positioned to require immunization is a critical step to using vaccination as a tool in your Safety Plan.  Bring in a ringer to help your library assess the extent of what it can do.

Step 4:  Assessing if a library should require vaccination of employees

Okay, let's say you consulted with the best employment lawyer in your village/town/district, they took a close look at whatever relevant contracts and policies your library has, and they have said: "No problem, you can require this."^[5]

The next important thing to consider is: should your library require this?

Compelled immunization^[6] is an incredibly sensitive area of policy and law.  Since the time Ben Franklin started insisting on smallpox immunizations,^[7] this public health issue has had passionate rhetoric on both sides of the debate. 

I have worked with families whose children have documented contraindications for certain vaccines, and it is not a simple issue.  And right now, a public discussion is happening about why people who are African-American might not trust being offered a first round of vaccination.^[8]  These are life-and-death issues.

That said, those on the front lines of public service, during a time of pandemic, are at higher risk of both getting infected, and spreading disease.  Science shows vaccination will mitigate that risk.  Thus, under the right circumstances, encouraging such employees to be vaccinated is the right thing to do, and in some cases, employers have made the decision that requiring vaccination is the right thing to do.

The consideration of this question is classic risk management.  What critical services is your library providing to the community?  What exposure to possible infection do those services create?  Does social distancing, PPE, and sanitization mitigate those risks within acceptable tolerances, or would requiring vaccination of employees demonstrably make those employees and the community safer?  Are there certain duties that merit requiring immunization, and other duties (jobs performed 100% remotely, for instance) that do not?  And critical: is mass employee immunization in step with the approach of your local health department?^[9]

There is no cookie-cutter answer to these questions, but a responsible decision to require immunization of employees as part of a well-developed and evolving Safety Plan should answer them all.

Step 5:  Developing a robust policy that includes consideration of civil rights, the ADA^[10] and privacy

So, let's say your library has followed Steps "1" through "4" and has decided it can, and should, update its Safety Plan to encourage or require immunization of employees.

The next step is developing a policy that:

• Demonstrably does not discriminate or have an unintentional disparate impact on any protected class of people (race, religion, sex, etc.);
• Has appropriate measures for people to opt-out based on a disability accommodation under the ADA or the New York Human Rights Law;
• Protects the privacy of those who either meet the requirement, are granted an accommodation to not meet the requirement, or who must be terminated due to refusal to meet the requirement.^[11]
• Manages liability through good planning and the transmission of accurate information, not (just) waivers of liability.[12]

I also suggest that the library strongly consider ensuring, well in advance, that: 1) the vaccine is available to employees, and 2) that employees don’t have to pay for it.  This is because 1) once the library has identified that there are risks in its operations that would be best mitigated through immunization, those activities should be limited until the mitigation is in place, and 2) there can be legal complications if the vaccination requires personal expense.  While this advance planning and cost containment is not precisely a legal compliance concern, they are close first cousins, and should be addressed as part of the Safety Plan. 

Step 6: If a library decides to require immunization, develop a PR Plan (optional, but a very good idea)

I don't need to tell a library audience that what a public library does on this topic will be scrutinized, criticized, and eventually, also a model for the rest of your community.^[13]  Since any decision on this point will have its critics, and also (hopefully) its fans, be ready to let your public know, simply and straightforwardly, the basis for your library's decision.

I like the classic "FAQ" approach.  Here are two model FAQ's for two libraries that did the legal analysis and safety assessment, and come to the following decisions:

FAQ: I was told the library board is requiring all the employees to be vaccinated for COVID, is that true?

FAQ ANSWER: Since re-opening on DATE, the NAME Library has had a Safety Plan.  Now our Safety Plan does include supporting voluntary immunization of employees.

FAQ:  Voluntary?  So you are not requiring it?

FAQ ANSWER:  Our risk analysis and still-limited operations showed that we could meet the community's needs by requiring masks, social distancing, and routine sanitization.  We have now added supporting employees in getting vaccinated on a voluntary basis.

FAQ:  Will you ever require it?

FAQ ANSWER:  Only if our operations change and an updated risk analysis shows us that it is best for our employees and for the community.

Another "FAQ" example, for a library that came to a different conclusion, is:

FAQ: I was told the board is requiring all the employees to be vaccinated for COVID, is that true?

FAQ ANSWER: Since re-opening on DATE, the NAME Library has had a Safety Plan.  Now our Safety Plan does include mandatory immunization of employees who are able to be vaccinated.

FAQ:  Why is the library requiring employees to get vaccinated?

FAQ ANSWER:  Feedback shows that the community needs us providing critical services right now.  Our risk analysis showed that in addition to requiring masks, social distancing, and sanitizations, immunization by employees would protect their health, and the community's, while we provide those services.

FAQ:  The vaccine is not 100% available yet.  Did your employees have to do this on their own?

FAQ ANSWER:  Our library worked with [INSTITUTION] to make sure our employees had access to this safety measure, without cost to them.

And that's it.^[14]

The important take-away I want to emphasize here is that for individual libraries, there are no quick answers to these questions.

Libraries of all types will be assessing their unique legal and risk positions, and will need to make carefully documented and executed decisions.  Libraries within larger institutions may need to fight for consideration separate from other operations.  Public libraries will need to consider the heightened transparency and public accountability they operate under.  Library systems will be thinking about how they can protect their employees while also supporting their members.  And for the employee on the ground, they'll be thinking about keeping themselves, their families, and their communities safe.

By taking careful, deliberate, and well-informed steps, the answers to the member's questions can be found.

Thank you for a vital question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

There are a lot of little details to address in considering this question, but first, there is one big principle I must emphasize. When it comes to records retention—and especially when it comes to employee-related records—nothing should be discretionary.

In other words, if an employer wants to create a process where every corrective action plan,[1] performance evaluation, employment-related investigation, or incident report is removed after its minimum retention period has elapsed, that is fine. However, unless it is a benefit that has been carefully negotiated and confirmed in a contract,[2] there should be no process for an employee to initiate optional removal of materials, and by no means should that process require the employer to make a “yes” or “no” decision.

The moment personnel records that could be interpreted as “negative” become subject to an employee-initiated, optional procedure, the employer, simply by having such a procedure, has: 1) admitted that possibility that the materials could have a negative impact on the employee; 2) created a system where such material could be retained inadvertently; and 3) set up a scenario where such a request could accidentally or deliberately be denied or perceived as somehow subject for debate, potentially triggering the possibility of a complaint, litigation, or a damage claim.[3]

Unless retention is being considered for historic/archival purposes, record retention or destruction should never be discretionary (and of course, the decision to retain certain records for historic/archival purposes should be based on objective criteria).  The best approach for management of employee performance-related records is simply that they be retained as required, or be purged when no longer needed, based purely on the category (not the substance) of the records’ content.[4]

So, my answer to this question is: there should be no process for an employee to request optional removal of negative materials from a personnel file. Rather, the removal of material from personnel files should only happen per uniformly and routinely applied policy.[5]  If a negative review or incident report has served its purpose and is no longer needed,[6] it may be removed as part of the routine purging policy and process. If it is still needed, it should be retained.  There should be no middle ground; it creates risk.  If your library is part of a collective bargaining agreement or uses contracts that include this approach, employees should all be notified and trained on how to exercise these rights.

Thank you for an insightful question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Before we address what may be the clear signs of a dysfunctional relationship between a library and its "Friends," let's explore the basis for the Library-Friends arrangement.

A public library, hemmed in by many laws, regulations and pressures governing fiscal operations, often enters into a cooperative agreement with a "Friends" group--an independent, usually "501(c)(3)"[1] corporation who can raise and spend money unburdened by such obligations.

Here's an example of how this works:

A town's library wants to create a special collection on "Local African-American Heritage"…a project that will be done in collaboration with a noted Black historian, the Black Studies department of a nearby college, and the archivist of a historically Black church in the town.  The initial $10,000.00 donation to kick off the collection was left to the Friends by a donor in their will.

The Library and Friends create a joint committee to make the special collection happen.  As envisioned by the joint committee, the project will involve renovation of a room in the library previously used for community meetings, as well as the acquisition of a wide range of books, museum-quality and ADA-compliant signage for the walls, and an oral history project housed on special interactive technology.  The library's staff will receive special training on the resources and the room.

The new section's "Grand Opening" will feature a keynote speaker who some town residents find controversial.  After the ribbon is cut (the Friends already own giant scissors) the Friends will host an off-site catered reception featuring a local rapper, which donors, trustees, project collaborators, staff and the media can attend for free.

Through careful planning by the joint committee, the details, budget, procurement procedures, and contracts for the room and opening events have been determined, and the bills are being paid entirely by the Friends.  However, the contracts involved are not so simple.

The construction contracts were bid and had to follow all applicable procurement laws and regulations.  The invoices for the new books are only in the name of the library.  The off-site venue and catering contracts are only in the name of the Friends, but the contract expressly "holds harmless" the library.[2]  And although her speech will be in the new room, the contract for the speaker is only in the name of the Friends…a tactic used to avoid community accusations that taxpayer money was spent to generate controversy.[3]

How does a library and its Friends reach this high-functioning ideal of collaboration?  It takes a well-crafted (and periodically re-evaluated) Collaboration Agreement,[4] sound policies, and  routine, informed communication by both sides.  This isn't to say there won't be a spat or two.  But with a commitment to those things, a library-Friends relationship can be appropriately challenging, while reaching a productive ideal.

The questions posed by the member show what can happen when things are less than "productively ideal."  They sound like symptoms of a problem I call "Friends Drift."

"Friends Drift" is where a previously strong relationship (or perhaps one that was never so strong), leads a library and its Friends to drift so far apart, they cease to collaborate effectively.  As a result, the types of great programming and support the relationship was forged to create cease to materialize.

What does "Friends Drift" look like?  It can have any number of causes and symptoms, but here are some solid hallmarks:

• Collaboration Agreement doesn't exist;
• Collaboration Agreement is over 7 years old without any revision in the past 7 years;
• Collaboration Agreement can't be found by newer leadership and no one has initiated a step to draft a new one;
• Prior operations depended solely on personal relationships and not written policy, so new members don't have a roadmap to proceed;
• Lack of policy between the two groups for approving expenditures and fiscal planning;
• Lack of routine productive meetings between the two groups;[5]
• Lack of separate but coordinated strategic planning;
• Lack of clarity about payment and fund-raising procedures;
• Friends board making decisions that are the purview of the library board (or visa-versa);
• Distrust and questioning propriety of the other's operations (as seen in the member's questions).

In the example provided by the member, the "Friends Drift" is so serious, the library is even wondering if the Friends are in compliance with State and Federal laws. 

This is particularly worrisome because as not-for-profit, charitable organizations, the fiscal and operational integrity of both a library and its Friends should NEVER be something one has to speculate about.  In New York, a public library must file an annual report with the Comptroller, while its Friends group must file both a "CHAR500" with the New York Attorney General and a form 990 with the IRS.[6]

Those mandatory filings should provide everything needed for mutual assurance fiscal responsibility and transparency.  If there is uncertainly even if those things are done, something has gone astray.

Which brings us to the member's specific questions, which I need to modify a bit, in order to provide accurate answers.

The first question is about whether a Friends group can withhold money from the library when the library asks for it. 

The answer to that is: YES, that might be okay.  In fact, it is often perfectly appropriate (and sometimes, highly advisable) for a Friends group not to pay for certain things for its affiliated library.  For instance, while this is a critical factor to be decided only by the library and agreed to by the Friends, I would encourage any library to think twice (and twice again) before using a Friends group to routinely supplement an annual operating budget.  In that same vein, a Friends group shouldn't pay (at least, not before deep and critical policy and fiscal analysis) a regular cost-of-living adjustment for staff salaries. 

Why? Because this type of predictable, routine expense is something that should be built into the base operating budget, and supported by the sponsoring tax base(s).[7]  While community budget battles aren't always pretty, they are an essential connection to your area of service.  Having Friends underwrite routine expenses to meet the library's basic Plan of Service is a potentially bad habit.  In my opinion, it is something an experienced Friends group will meet with resistance.

So, what are Friends for?  To put it in baking terms, they are for two things: whipping up delicious and beautiful frosting, and going from cupcake to cake.

The "frosting," is all the "extras" that are really flavorful essentials: speakers, new collections, special programming, or perhaps a really cool new set of carts or 3-D printer.  They should be highly visible and make things better…just like lovely pink frosting on top of a chocolate cupcake (and just like the frosting, they could actually be a huge factor in the appeal of the cupcake, and have more calories - I mean, cost more money).

And the journey from "cupcake to cake"?  That's a capital campaign.  Need a new building?  Hoping to expand?  Want to build a green roof with solar?  One-time physical upgrades are great candidates for "Friends" generosity and work, where the money can supplement a state grant or bond issue, or even take on the whole nut.

That's what Friends are for.[8]

Which bring us to the next (slightly modified) question: what if "Friends" funds aren't being released at all?  Can that risk their status at a not-for-profit?

Although there are some things Friends might not pay for, I can say with just as much assurance that any organization built solely around the well-being of a library, that does not use its resources for its not-for-profit purpose, is going to have some serious concerns.  And yes, those concerns could impact its charitable and 501(c)(3) status.

To diagnose those concerns, an attorney for the library (or the Friends) would need to review the group's charter, bylaws, recent CHAR500's and 990's, and (if possible) board minutes and correspondence with the sponsored library.  If there is a Cooperation Agreement, that should be reviewed.  The method of requesting funds, and the basis for the refusal should be assessed.  And of course, any exigent circumstances (were the Friends the victim of a theft?  Did they not meet their fund-raising goals?  Did they not yet conduct their audit?) would have to be considered.

Depending on what was found, legal action based on a violation of the Agreement could be threatened/brought by the sponsored Library, or a complaint to the New York Attorney General Charities Bureau or the IRS could be lodged.  If things get to that point, it's likely the relationship is highly adversarial, and each party would have brought in a lawyer. 

Now, I like lawyers.  Being one, I see their value, and I never hesitate to recommend when I think a party needs to consult one.  After all, it's how I make my living.

That said, if a library and their Friends are experiencing "Friends Drift" of the type discussed above, and its looking like things will get ugly, I recommend after initially working with their lawyers, the two groups consider using a mediator, not two adversarial lawyers, to help sort things out.

Now, when I say "mediator," I don't mean just any nice, neutral person who is willing to listen to both parties and help out. I mean a trained professional who knows the law and the obligations faced by both sides (likely a lawyer with not-for-profit experience), who can help them assess their mutual goals, and get their relationship on the right track. 

In some cases, the mediation could be a respectful, productive "airing of the grievances" used to diagnose the problems and craft a new (or a first) Cooperation Agreement.  In simpler cases, it could mean merely solidifying the functions of the groups' committees or developing some healthy new policies and procedures.

How does a mediation get set up?

A mediation is always conducted per a written "Mediation Agreement" that sets out the obligations of the mediator and the parties (a big one being confidentiality of the proceedings, another being the neutrality of the mediator and the willingness of the parties to proceed "in a spirit of mutual problem-solving").  The Mediation Agreement should also establish clear goals for the process (such as "…in furtherance of the mission of both parties, a session to discover and confirm shared procedures for the planned payment of certain library expenses") and defined results ("…the final product shall be a new/revised Cooperation Agreement to meet the needs of the parties for the next five years.").

A county's local bar association usually maintains a list of trained mediators.  That said, for an exercise like this, not only mediation experience knowledge of libraries and not-for-profits is essential.  The price tag for such a session could be anywhere from $1000-$50000 (with costs shared equally by the parties), but when compared with the costs for one party to hire a lawyer to go on the offensive, and the other to play defense - with nothing created but bad feelings and complaints in the end - as an investment, it may be worthwhile. 

This is especially true since--unless something truly nefarious[9] is suspected - "Friends Drift" is generally the result of good people caught up in the complicated web of not-for-profit operations, and not knowing quite what they can and should do.  But good intentions don't automatically translate into knowing how to run a compliant not-for-profit.  And when people try to wing it, trouble can start.

This is why the library-Friends relationship[10] can be fraught with fiscal drama, and "Drift," even when all good people are involved. 

The member's questions show how this drama - and Drift - can take up a lot of staff and volunteer energy, and cause a lot of stress.  Working to maintain good relations, and perhaps using a mediator when relations are strained, can be the best way to harness that energy for the library and its Friends…and thus, for the entire community.

Thank you for a difficult question on an under-discussed topic.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Every employer struggles with this issue: give employees enough access to electronic information to do their jobs, but protect that information from accidental disclosure, file corruption, and theft.

Solid practices like routine security updates, back-ups, password re-sets, and employee training can help a library avoid the worst IT disasters.  But what if someone in a position of trust simply abuses their access?  What if a scenario like the member's question should arise?

There is a process to address this type of scenario.  In order to ease an adrenalized mind,[1] it is presented below in grid form.

Upon suspicion that files have been removed or inappropriately removed by a former library employee, follow these steps to assess what recourse a board might have:

What happens as part of number "9," is the actual answer to the member's question.  But until a library follows steps "1" through "8," it can't fully know its options under "9."

And what can happen as part of "9"?  The range of consequences for unauthorized computer access and/or data destruction is vast, running from criminal penalties to civil remedies.  And if considered with solutions for how a library can recover from the loss, there are further possibilities.

If I was on the board where a former director removed all the library files from a library owned-computer that relate to the running of the public library, at the end of the day, here's what I'd want get out of "The Files Are Gone" process:

• Know if the files were simply removed, or if they were removed and accessed/disclosed beyond the library;
• If they were disclosed beyond the library, what the library must do to address that (including special considerations if personal or confidential information was accessed);
• If the files were only removed, know if they can easily be replaced, or if they were the library's only copy;
• If they can't be easily replaced, how much it will cost to replace them, and any negative impacts we'll experience until we do;
• How we have concluded the files were removed by the former employee, if they were an employee when they did it, and what the due process is for addressing that;
• If (based on all the information gathered, and more that will be specific to the situation), the board should contact the police, or consider a civil claim against the former employee.

By demanding solid, well-documented and qualified answer to these questions (What happened?  how does it impact the library?  What can we do?) a board member is being a good fiduciary, and positioning the library to identify the best recourse.

Now let's say that, in the grand scheme of things, the "missing files" appear to be pretty minor (and do not involve private information).  Let's say that, for whatever reason, the outgoing employee deleted all the library's "standard operating procedures." Not the policies--those are on the library's website and backed up in numerous places - but all the details about (as the question says) "running the library:"  How to organize the courier manifest.  The templates for the volunteer letters and community meeting notices.  The budget template and calendar for strategic planning.  Their own emails on their library account.  Nothing private, no circulation or credit card information, but a body of work that represent hundreds of compensated hours…lost.

This may seem like the kind of loss that isn’t dire enough to warrant the steps I have outlined above, but it absolutely is.  First, only a professional can say when data is truly "lost" (especially emails).  And even if, at the end of the day, there is a board decision not to pursue any consequences (privately, civilly or criminally), such (in)action must be based on good information--not just the result of a decision not to investigate in the first place.

The budget for such response, if planned carefully, can be very modest (under $1500).[4]  Reaching out to a library's system and regional council to find the professional you need might help the library get those services at a reasonable price (and again, depending on the system-library service agreement, much more).

Why am I adamant about this follow-through, even for a "small" incident?  Because sometimes a "small" incident is only the tip of a much larger iceberg.  Unauthorized data destruction by a former employee could be a serious breach of their duty, the law--and even their oath of office.  But it might not be.  The right response, and the fair response, can only be formulated through careful documentation and analysis.

This is what positions the board to know what recourse it can take, when presented with such a serious situation.

Thank you for trusting "Ask the Lawyer" with this sensitive question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Wow, what a great question: what is the hierarchy of laws impacting the employment conditions of librarians?

The laws impacting the employment conditions of librarians are a complex logic tree with many branches.  When I consider the amount of laws, and the permutations….

Just…wow.[1]

For a lawyer practicing in both library and employment law, this question is the equivalent of someone handing a librarian a huge box of materials while asking: “Can you catalog these, then use them in a ‘Library Employee Rights’ display for the lobby?”

I can’t wait to curate the display, but first, let’s take a look at what’s in the “library employment law” box.  We’ll take them in rough order of hierarchy/priority.

The first item in the box is a huge, grubby tome that lawyers, even younger ones, use every day (if they are at a firm owned by a crusty Gen X lawyer[2]): Black’s Law Dictionary. 

A legal dictionary is in the collection because, although no lawyer would ever litigate an employment law matter based solely on a dictionary definition, legal concerns often turn on precise word meaning, and employment law certainly does.  In fact, there are at least three different legal definitions of  the word “employee” that apply to library-related issues.[3]

The second is not a book, but a collection of CD’s containing a huge database.  What’s on the database?  It’s the “common law”—a body of case law and rulings that can influence how black-letter laws[4] work together.  The “common law” is a body of shared language and precedent that can influence (sometimes heavily) legal decisions.  It is often the glue that holds legal decisions together.

And now, for a few volumes that are far less esoteric:

The Fair Labor Standards Act (“FLSA”): Among many other things, this is the law governing who must be paid overtime when they work more than 40 hours in the standard work-week.

Federal Civil Rights Laws: This is a compendium of laws governing rights protecting people under the jurisdiction of the USA from discrimination.  It includes the Civil Rights Act and the Americans With Disabilities Act. 

The New York Human Rights Law: This is a compendium of laws governing rights protecting people from discrimination in New York.  It includes protections on the basis of religion, sexual orientation, gender expression, prior conviction and pre-disposing genetic characteristics (among many other things).  It is why your library recently adopted a sexual harassment report form.[5]

New York Labor Law & Regulations: Among many other things, this is the law that mandates one unpaid break every six hours for certain hourly employees.

New York Civil Service Law: Among many other things, this is the law governing the hiring, advancement, compensation scale, discipline, and termination of most public library employees.

Federal Laws Governing Benefits: This is a compendium of laws governing employee benefits in the USA.  It includes a law called ERISA, and the Affordable Care Act.

The New York Laws Governing Employee Benefits and Protections: This is a compendium of laws controlling unemployment insurance, workers’ compensation for work-related injury, insurance for non-work-related injury, retirement benefits, and most recently, the Paid Family Medical Leave Act.

New York Education Law & Regulations/New York Not-for-Profit Corporation Law: These laws are combined in one handy volume to create the rights and duties of a chartered library, and its governing board (who, within a framework of laws, are the ultimate decision-makers regarding employment at their library).

Local Civil Service Rules:  Based on New York’s “Municipal Home Rule Law,” many of the details of Civil Service-controlled employment practices can change from county to county (and municipality to municipality).

Local laws: Some municipalities adopt local law to create further protections for employees.  These laws cannot be contrary to state, federal, and county law, but can expand employee rights further.

Random Authorities:  This book is a vivid graphic novel depicting numerous opinions by the Equal Employment Opportunity Commission (“EEOC”), the U.S. Department of Justice, the National Labor Relations Board, the New York State Comptroller, the New York Attorney General, the New York Committee on Open Government, and the New York Commissioner of Education, regarding matters impacting library employees.  One delightful example of this is an intricate decision by the State Comptroller about how much money could be spent on a party for volunteers.[6]

And finally, some really cool, custom works are in the box… 

A Choose-Your-Own-Adventure novel called A Journey Through Your Charter and Bylaws.

Why is this a choose-your-own-adventure?  Because while neither a charter nor bylaws can change the above-listed law, the “type” of library an institution is chartered as will impact if and how those laws apply.  And within the framework set by those laws and their application to your library, it is the board—whose composition and functions are controlled by the charter and bylaws—that is the ultimate party responsible for hiring and firing of employees, which sets the stage for all other employment-related actions.

A collection of scrolls labelled “Contracts.”  This could be as simple as a contract with an Executive Director or Book-keeper, or as complex as a “Collective Bargaining Agreement” with an employee union. It is important to note that while a contract can create a great many additional rights, it cannot be contrary to the Charter and Bylaws, nor any of the laws listed above (UNLESS there is not an “exception” in the law, allowing it to be altered by the terms of a collective bargaining agreement, and if your library type means they apply).

And finally, the most valuable part of the collection: a weird device, rather like a flour sifter, that says in big, bronze letters on its handle “IT DEPENDS.”  What does this screen do?

It tells you which laws apply to which libraries, in which order of priority, under which circumstances.[7]  When applied properly, this allows you to create…

Your Institution’s Employee Policies, drafted to comply with the law as it applies to your library, and to support your unique charter and mission.  Such policies should be routinely re-assessed to ensure continued legal compliance and support for your library’s key objectives (like attracting, retaining, and developing the best staff possible).

In other words—and in direct response to part of the member’s question—the purpose of policy is to articulate and apply the law as it governs your library.  No policy should ever contain a provision contrary to a governing law or regulation.  This is why policy must be routinely assessed, revised, and updated.

And that’s the collection.

At this point, I imagine the member who asked this question might be feeling: Whoa, information overload!

Let me show you my display, here….

You probably thought it was going to be a tree, right?  Nope.  It’s a finely balanced array of media stacked to look like librarian assembling a sculpture of…a librarian. 

Why is that?

No other entity created by law(s) has the type of support, mandates, restrictions, and—yes—latitude under the law that libraries do.  Yes, libraries operate with a strict framework created by the laws and regulations listed above,[8] and operate within exacting mandates…but within that framework, libraries have almost limitless discretion with policies.  That is how they function and evolve as reflections of their communities. 

That said, certain things fundamental, and cannot be trumped by much.  Here are a few (with links to the laws that back them up):

• In New York, librarians must get an unpaid half-hour break every six hours; https://www.labor.ny.gov/workerprotection/laborstandards/employer/meals.shtm
• Even if considered employees of their sponsoring municipality (which is often, at a bare minimum, debatable!), most librarians paid an hourly wage are entitled to protection under the FLSA; https://www.dol.gov/whd/regs/compliance/whdfs7.pdf
• In New York, unpaid volunteers may not replace or augment paid staff; https://www.labor.ny.gov/workerprotection/laborstandards/PDFs/FAQs_NonProfit_and_State2016.pdf
• In New York, any employee reporting or supporting a concern about sexual harassment is protected from retaliation;

 https://www.ny.gov/combating-sexual-harassment-workplace/workers

• In New York, public library employees serve at the pleasure of their boards, NOT their sponsoring municipality;

https://www.nysenate.gov/legislation/laws/NPC/202

• In New York, public library employees may be indemnified[9] by their governing boards;

https://www.osc.state.ny.us/legal/2001/op2001-12.htm

• In New York, association library employees may be indemnified by their governing boards;

https://www.nysenate.gov/legislation/laws/NPC/202

• And…while it can be rather a pain to work within, public library employees are protected by the New York Civil Service law:

https://www.nyla.org/a-librarians-guide-to-civil-service-in-nys-2018/[10]

How does this play out?

Let’s take breaktimes as an example.

In New York, employees have to take a break every six hours.  It’s the law.  In my office, when a paralegal gets so into the project they don’t want to stop, I have to order them[11] to take a break.  (at which point they do, because otherwise…irony).

Now, how I choose to support my employees as they take their break is up to me, and may become a matter of policy.  Do I supply a break room?  Do I have a fridge and a policy/procedure for keeping the break room clean and the fridge free of mold?  All of those things are discretionary—and to govern the details, I might have a policy that goes beyond the minimum.  But here is where things get complicated: If an employee doesn’t follow the policy, I may need to follow rules set by Civil Service to discipline them. But if I am selectively enforcing the policy in a discriminatory way, state or federal civil rights law could govern. Or perhaps the employee will first file a union grievance, which we’ll have to arbitrate…

And that is the hierarchy of employment law.  It’s not really a heirarchy…it’s more of a fractal pattern.  The good news is, library leadership gets some say in the pattern.

What shape does your library pick?

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

On the surface, this is a simple issue: if people are using their cell phone for personal use on the job, a simple policy to stop the use should solve the problem, right?

Not these days.

As technology continues to transform the workplace (and the world), “cell phones away, please,” is not as easy as it once was.  People use their cell phones to monitor health, track their steps, and get emergency calls from kids at school.  Some may even use their cell phones to save their lives, serve as a witness to illegal activity, and exercise their right to free speech. 

Many of these functions depend on the proximity of the person to the phone (or the watch that connects them to it), and because of this, cell phones are becoming extensions of the people who own them.  So a policy to keep them stowed and away, or secured in a locker, can be met with resistance. 

Here are a few examples of how this “resistance” can play out on the job:

• An employee who is the parent of a child with Type 1 Diabetes may want their cell phone on them to keep an eye on their child’s glucose level[1] while the child is at school;
• An employee who being stalked by an ex may want the phone to record evidence to seek a protective order;
• An employee trying to lose weight per a doctor’s orders may be using a supportive app and a Fitbit;
• An employee may want to use their personal camera phone (“it’s better”) to take pictures for the library’s Instagram;
• An employee may need to text their partner to confirm who is picking up the kids, making dinner, and mowing the lawn before it turns onto a meadow;
• An employee may really love to play Candy Crush Saga® when things are slow at the reference desk.

As can be seen, many of the reasons to keep a cell phone on one’s person are compelling; other uses may not be.  And many of reasons/uses overlap with other library policies.

The goal, of course, is not to bar an employee from important connections and a tool for their well-being, but to make sure the use of personal electronics does not distract from the library’s professional environment and employee productivity (even on a slow day).  To achieve that, there are two broad solutions: 1) rely on a collection of policies to address the variety of purposes for personal cell phones while at work; or 2) create a catch-all policy. 

In a work environment where consistency for staff members is critical for professionalism and productivity, I prefer a combination of both.  What does that combination look like? 

It starts with policies for:

• ADA accommodations
• FMLA
• Domestic violence victims’ accommodations
• Workplace violence prevention
• Communications/media
• Use of technology
• Confidentiality of library records and patron privacy
• Employee conduct

…which should all allow for appropriate use of personal cell phones and electronic devices.  This doesn’t mean the policy has to mention cell phones specifically—just have enough flexibility to address them.

At the same time, assuming the above-listed policies harmonize with it, creating a specific “Policy on Use of Personal Cell Phones and Electronics,” as proposed by the member, can help employees and management navigate these issues in a rapidly changing world.

Here is an example of such a policy[2]:

[INSERT LIBRARY NAME] Policy on Personal Use of Cell Phones and Electronics

The mission of the [INSERT LIBRARY NAME] depends on employees maintaining a professional, productive environment. 

To maintain that environment, use of personal cell phones and electronics should only divert employees from work duties in the case of an emergency. 

To achieve this, cell phones and personal electronics should be stored in a carrier, purse, or pocket where the screen is not visible during work time, and watches synched with other electronics should not divert employees from work except during designated breaks in designated break areas. 

Sudden personal emergency needs that require use of a cell phone or other personal electronics should follow the established procedures for use of break time and personal time.

Use of cell phones and personal electronics for ADA accommodations, FMLA arrangements, personal emergency, and personal safety needs are exempted from this policy, and should be arranged on a case by case basis with a supervisor per the relevant policy. 

As with most HR policies, this one sounds simple, but can be complex to administer.  The need to be flexible and allow some cell phone use (especially ADA use, the basis of which may be confidential), can cause seeming inconsistency in enforcement.  To address this, employees must be sensitized to the fact that some people may depend on a personal devise for an authorized (and confidential) use, while at the same time be given the clear message that keeping in touch with social media and personal contacts during work time is not allowed.

As technology puts pressure on the norms of society, it is important to draw (and re-draw) reliable and clear boundaries…especially in the workplace.  So should a workplace have a policy on personal cell phones?  Done right, and with due consideration of the law, it can help.

Thanks for a timely question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

To answer this question, I had to switch things up, and pretend that one day, there I am, sitting in my office,[1] when a barefoot person walks up to my door and asks “I want enjoy my library privileges while barefoot, and they won’t let me.  Can they do that, or can you help me sue?”[2]

If someone actually paid me for a consultation related to this conundrum,[3] here would be my diagnostic process.  For the sake of argument, let’s say that for every question I pose, the answer is, “No.”

• Do you have a disability that requires you to be barefoot?
• Do you hold a sincerely held religious belief that requires you to be barefoot?
• Does this rule disproportionately impact you as a member of a protected class?
• Are you subject to some type of judicial order that requires you to be barefoot?[4]
• Have you observed that other patrons at the library are barefoot, while a rule against going barefoot is being selectively applied to you?

Once I got through establishing that the answer to each question was “no,” I would then likely say: “Well, I am sorry, but whether it’s public or private property, if shoes are required by the library, I see no basis for a claim.”

Of course, the law is always evolving, but right now, simply being “a person who wants to go barefoot,” is NOT a protected category in New York State.  So, whether it’s my house, McDonald’s, or the local (school, association, or public) library, the old rule “no shirt, no shoes, no service,” can still apply.

This right to impose reasonable and uniformly applied conditions for entry—like shoes, shirts, and leaving beverages at the door—is rooted in the concept of real property (ownership of land).  A person or organization that owns land can impose (with varying degrees) restrictions on how others may access it.  And unless connected to an established[5] or fundamental right—like freedom of religion—those restrictions cannot be challenged via lawsuit (although for a library governed by a board, it can be challenged and changed as a matter of policy). 

The concept of requiring certain attire in relation to property is common in New York’s laws, regulations, and case law.  Country clubs may require a formal style of clothing, while barring cleats and spikes indoors.  Children’s camps may require kids to wear shoes (with backs!).  Since this answer gave me an excuse to do the research, I even learned there is a state-imposed dress code for recently legalized MMA (Mixed Martial Arts): man must be shirtless, while women must wear tops (I can’t imagine this gender-based rule will go unchallenged for very long).[6]

Why all this commentary about the law and clothing? I’ll make it clear.  Libraries—whether they are public or private—have the right to require visitors to wear shoes, to wear clothing that covers certain portions of the body, and to check their beverages at the door. This goes hand-in-hand with the right to require that people not play loud music, not be disruptive, and not import disturbing body odor beyond a certain personal zone.[7]

It is important, however, to have a clear and uniformly enforced policy for imposing these reasonable conditions.  The minute a small child is allowed to go barefoot in the library (bad idea!), an adult can try to claim that right, too.  And extreme care should be taken to not adopt policies that can impact protected classes of people (barring head coverings, for instance), unless a lawyer has been consulted in the drafting of the policy, and staff are well-trained on the nuances of enforcement.

So, to bring it back to the member’s question: there is no need for a liability waiver, if your library simply wants to insist that people wear shoes.  On the flip(-flop) side, if a library wants to explore a “barefoot-positive” policy, more than a waiver would be needed to address the risks: a board would have to explore all the risks caused to those not wearing shoes in a place with heavy books, carts, lots of foot traffic, and many tables and chairs.  That risk assessment would consider not only the likelihood of injury, but workplace safety rules, insurance carrier requirements, and the interaction of such a policy with other institution-specific practices (particularly, how often they clean the floor).

Again, this all comes down to the requirements and needs of a particular library, on a particular piece of property, governed by a particular set of rules.  I want to stress: such factors are variable.  The “National Yoga Library,”[8] or a library based around a culture where shoes are left at the door, would have a different perspective on this issue, perhaps insisting on a no-shoe policy (there are some places where it’s shoes that are considered dangerous and unsanitary, which makes sense, when you think what they walk through).  But for most libraries in New York, where for six months of the year our floors are coated in slush and salt, and furniture design presents many a hazard for unshod feet, “shoes, please” is likely the policy of choice.  And it’s okay to insist on it.

Thanks for a great question!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This member is thinking ahead!

Starting June 29, 2019, any space within a 100-foot perimeter around a public or association library, including adjacent businesses, is subject to a state-wide smoking ban.  The sole exception is residential properties (inside and out).

Any person or business violating this new ban may be subject to a $2,000 fine.[1]

This new law is part of Section 1339-o of New York’s Public Heath Law.  It reads:

Smoking shall not be permitted and no person shall smoke within one hundred feet of the entrances, exits or outdoor areas of any public or association library as defined in subdivision two of section two hundred fifty-three of the education law; provided, however, that the provisions of this subdivision shall not apply to smoking in a residence, or within the real property boundary lines of such residential real property.

This is a powerful new law, and it has many libraries thinking about implementation.

As the member’s question illustrates, complying with, taking advantage of, and rolling out this new law may take some effort—as well as some tact and diplomacy. 

Here are some tips for a graceful transition (and how to not ignite the fuse of nearby, non-residential smokers and their landlords):

First, some new signage can go up, alerting people to the impact of the new law. Per Public Health Law Section 1399-p (“Posting of Signs”), smoking signage should meet the following requirements:

“Smoking” or “No Smoking” signs, or “Vaping” or “No Vaping” signs, or the international “No Smoking” symbol, which consists of a pictorial representation of a burning cigarette enclosed in a circle with a bar across it, shall be prominently posted and properly maintained where smoking and vaping are regulated by this article, by the owner, operator, manager or other person having control of such area.

Signage to assist with compliance should add “…within 100 feet of this boundary.  NY Public Health Law 1399-o.”

Second, it might be helpful to amend or create library’s policy on smoking so it states:

Per Section 1399-o of New York’s Public Health Law, it is forbidden to smoke within 100 feet of library property (except for residential properties).  To promote compliance, the library will maintain signage consistent with Section 1399-p of that law, and will work with impacted neighbors to enforce and encourage compliance with this law.

Third, a simple plan of outreach to “impacted neighbors,” can help your library collaborate on compliance (instead of waiting for a clash of employees or customers).  This is not a legal requirement, but it is the type of law-based, thoughtful, pro-active rollout can forge and maintain healthy neighborhood relations. 

Part of such a “Smoking Ban Rollout Plan” could include a letter such as:

Dear [Non-residential Neighbor within 100 fee of library property]:

As you may know, effective June 19, 2019, New York’s Public Health Law makes it illegal to smoke within 100 feet of a public or association library like the [NAME] Library.  The sole exception to this law is a residential property.

As you can see on the attached map, your property is within 100 feet of the library’s.  Please let us know of any concerns you have about alerting your [employees, customer’s, etc] to the requirements of this new law.  Please also let us know who we may contact it the event of a concern.

Our board and library staff are working to alert everyone and make sure our transition to this new law goes smoothly.  [We are installing new signage, as well.]  If you need to discuss any aspect of this, please contact [name] and [number or email].

Thank you for your consideration!

Sincerely,

Your friends at the [NAME] Library

Any contact with neighbors should bear in mind that under the law, certain facilities (ironically, hospitals and residential health care facilities) are allowed to “designate” a smoking area on otherwise-non-smoking premises (this might be the scenario in the circumstances described by the member).  Further, if a business or person can allege an “undue hardship,” they can request a waiver of a smoking ban under Section 1399-u.[2]  Since you don’t want a confrontation to spur a request for a waiver, “friendly outreach” is a good tone to strive for.

And finally, it is good for your library to consider that enforcing a smoking ban can cause a lot of stress, and use up a lot of director and staff energy.  Think about it: Librarians already have to be on the lookout for illegal porn use, opioid overdoses, and destruction of library property.  Now they have to patrol for neighborhood smoking, too?  That’s a lot of social work for someone who just wants to help the world find information. 

For those moments, in addition to your library policy, a short statement endorsed by the board, for staff can hand out, might be helpful.  Something like:

Consistent with New York’s Public Health Law (Section 1399-0), there is no smoking allowed within 100 feet of the [NAME] library.  Thank you for supporting New York State’s public health initiative, and helping our library honor this law. –The Board of the [NAME] Library

When facing a needy[3] smoker, backup from both the state, the law, AND your board can be a great morale booster.

Libraries should also note: while Section 1339-o of the Public Health Law bars smoking AND vaping in many areas, this new library-specific section (section 6) bars only SMOKING[4] (and yes, under the law, “smoking” and “vaping” are distinguished.[5]  “Smoking” means “the burning of a lighted cigar, cigarette, pipe or any other matter or substance which contains tobacco.”  “Vaping” means “the use of an electronic cigarette.”).  So in addition to the compliance steps outlined above, get some binoculars, so you can be ready for some precise enforcement!

So that’s it.  Libraries needing to check their property line maps to establish their 100-foot perimeter can use their property survey and the county’s tax maps (this is also how you can check for a property’s actual owner, in addition to simply observing and notifying their tenants).

I wish every public and association library in New York smoke-(but not vapor)-free property lines!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

There are few relationships that can be as rewarding—and as fraught with tension—as the relationship between neighbors.  I have seen neighbors unite to fight for preservation of their streets historic assets, and I have seen neighbors bring law suits over shrubbery.  A library is wise to cultivate a good relationship with its neighbors, just like a person would at their own home.

What laws impact a library’s relationship with its neighbors?  Most libraries exist on land[1], or within a building, so the controlling law is called “real property” law.  “Real property,” which could be land, or a building, is distinct from “personal property” (like a book) or “intellectual property” (like a logo).  Although many laws impact real property, in New York, the major one would be the “Real Property Actions & Proceedings Law” or “RPAPL.”

Also impacting real property and the relationships between neighbors are: building codes, planning regulations, zoning, permitting, contract, business, and construction-related law.  And of course, the education law, not-for-profit corporation law, and municipal law can all apply to how a library handles real property issues, while grant terms and donor restrictions can be relevant, too. 

And if the old oak in front of your library suddenly crashes into the roof of your neighbor, insurance law may come into play, as well.

Any one of these laws—and countless others—might be considered by a lawyer advising a library if there is a concern or dispute with a nearby neighbor.  But are there any general “best practices” to abide by?  Based on my experience with construction, real property, landlord-tenant, and contracts—here are some simple practices for preventing, and if necessary, addressing potential neighbor disputes.

Practice #1: Know where you stand

Every library should know precisely what property they occupy, and how they occupy it.  To do this, I recommend what I call a “binder solution.” 

For libraries that own their own property, the binder contains:

• Deed
• Survey
• Assessment information (even if the building is off the tax rolls)
• Mortgage (if you have one)
• Any recorded easements or rights-of-way
• Current and past insurance summaries and policies
• Permits (if any)
• All contracts and documents related to maintenance
• Fixture and structure warrantees (driveway warranty, roof warranty, etc.)
• Deferred maintenance plan

Basically, this binder should be a one-stop shop for information relating to the library’s property and the legal relationships it has with the world. 

For libraries that do not own their premises, the binder contains:

• Lease
• Survey or floorplan of library’s portion of building
• Current insurance summary or policy
• Permits (if any)
• Warrantees for on-site physical assets your library paid for/owns (copier warranty computer system warranty, etc.)
• All occupancy-related correspondence with landlord, including notice of defects or safety hazards

Why does all this matter?  Many real property battles are lost when owners over-state or mis-portray their rights.  Never initiate a property matter with a neighbor—even a seemingly simple one like a noise complaint—unless you know these documents will back you up (plus, having this material organized is just good stewardship).

Practice #2: Know your neighbor

This advice works on two levels.

The first level is obvious: know your neighbors.  Invite them over.  Know the names of their kids and what sports team they root for.  That type of outreach is insurance against any number of serious disputes.

The second level is a bit more covert: what’s in their “binder”?  Are they the owner?   Are they renting?  Might they be a squatter?  Basically, to the extent possible, develop a “binder solution” for them, too.  In getting to know them a bit better, you might develop some insights on the roots of your dispute.

Practice #3: Isolate this issue

In my experience, neighbor disputes can be some of the nastiest legal battles. I am no sociologist, but I imagine this is because when you fight with a neighbor, no one gets a break.  You are alongside and--in some places practically on top of—each other, 24/7.    And sometimes people are just mean…or have too many of their own problems to be able to honor another’s.

That said, if you have a potential neighbor dispute, isolate what you think the true cause might be.  Is the neighbor ranting about your ice cream social signage actually angry about fines from 1989?  Is the neighbor complaining about “those people parking” actually kind of racist? Is the dispute really about noise, or is the neighbor a narcotics peddler?

The point of this is: make sure you really know what’s up.  That way, you can keep things professional and separate if matters get contentious, and know what type of team to assemble to handle the dispute.

Which brings us to…

Practice #4: Use a professional!

Library staff are trained to help people find information, to select and categorize library acquisitions, and to operate their library according to applicable ethics and regulations.  They are NOT trained lawyers, surveyors, law enforcement, or alternative dispute mediators.

If your library is in the midst of a neighbor dispute, consider retaining a property manager, lawyer, real estate agent, or other paid expert to be the primary interface with the neighbor.  Their experience will bring a better result, and the distance they lend the situation may de-personalize it and save your library staff time and stress.

Practice #5: Pick your battles!

Neighbor disputes should only be entered into if they can be won decisively, quickly, and in a way that aligns with your mission.  For a community library, that means identifying an overall strategy before you start, and using only tactics that you can publicly defend.

It would be impossible to write an essay on this (although a book might be fun), but here is a chart of some typical scenarios, and how to pick your battles:

My overall guidance?  Send neighbors a basket of fresh fruit ever year, and when you hand-deliver it, spend 10 minutes catching up and asking about their families.  It’s amazing how much ill will can dissolve over apples and pears.

Good luck out there!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This question brought back a lot of memories for your “Ask the Lawyer” attorney.  

Between 2006 and 2017, I was a full-time in-house attorney on a college campus.  On April 16^th, 2007, my time in higher ed was forever changed, when the entire campus froze to watch the reporting from Virginia Tech.  32 people dead.  17 wounded.

Over the years, as incident after incident occurred on schools and college campuses, my colleagues in higher education would wonder “Are we next?”[1]

I was lucky; my campus had no such incident during my time there (or since).  But I was there for the development of our active shooter response protocol, there for our on-campus trainings, and there, as an administrator, for our “incident response” trainings with local, state and federal law enforcement…getting ready for a day when we might not be lucky.

Large (and small) public institutions and facilities like schools, museums, malls, and of course libraries have been struggling with how to prepare for the day someone brings a gun and threatens or perpetrates violence on their property.  It is a horrific thing to contemplate, and a scary prospect to plan for…especially because there is a diversity of opinion as to what the best prevention and training techniques really are.

Some institutions have the benefit of mandates.  In New York, all schools must practice active shooter response, and there are laws, regulations and experts in place to guide those mandated drills.  And college campuses are mandated to prepare for emergency response.

Public libraries, on the other hand, do not have such a state-wide mandate.  Although chartered and operated in connection with a municipality, they are independent operators.  This means that though they may choose to follow whatever policy or procedure their municipality has developed for emergency response, or to adopt their own, that choice requires board approval.[2]

But the member’s precise question is: is it legal in NYS to institute a lockdown in a public library?

First, let’s clarify what is meant by “lockdown.”

Per §155.17 of Chapter 8 of New York’s Rules & Regulations: 

Lock-down means to immediately clear the hallways, lock and/or barricade doors, hide from view, and remain silent while readying a plan of evacuation as a last resort. Lock-down will only end upon physical release from the room or secured area by law enforcement.

To some people, “lockdown” (hiding, barricading) in the face of an active shooter sounds like a really good idea.  Others might prefer to run.  And still others think the best option would be to fight.

According to the New York State Division of Homeland Security and Emergency Services, depending on the situation, any of these could be the right choice.  Watch the video, “480 Seconds” at this link[3]. It depicts, in stark and practical terms, the different “best” responses, depending on an active shooter situation.  http://www.dhses.ny.gov/aware-prepare/step3.cfm

“Lockdown,” as defined in the NYS Education Law, was determined to be the best option for schools because they house a large, vulnerable population of minors.  While many of us only hear about this procedure through our kids (as we try to conceal our terror), school librarians know first-hand that the drills our kids do are only a small part of a system that requires:

• extensive site analysis;
• the creation building safety teams;
• designation of emergency gathering spaces;
• communications plans; and
• extensive training of staff. [4]

Any lockdown plan should be this well-developed, because as “480 Seconds” shows, sheltering in a secure place is not the only response to an active shooter situation.  Further, even in a place with a lockdown plan, responses will vary by building type, function, and population served (consideration of people with different disabilities, for instance, requires continually renewed attention).  Given certain variables, a lockdown procedure might be the best option, but even once that has been determined, ensuring doors can be secured, signage is properly posted, and staff are trained, are all critical elements of the plan.

So, is it legal to institute a lockdown procedure in a public library?  Yes. Library boards can (and should[5]) pass emergency response policies, include active shooter policies, and a lockdown plan might be determined to be the best response.  That said, unlike schools entrusted with minors, libraries serve a large population of independent, autonomous adults.  Unlike law enforcement responding at the scene, a staff directive to stay in place will only have the force of library policy…which is different from an order by law enforcement[6].  A person who wants to leave (and whose biology is telling them they MUST leave) might do so.

For me, the most important aspect of this question is not if a lockdown policy at a public library is “legal,” but how a public library develops its active shooter response plan and trains its staff.  This can be no cut-and-paste job; it is a work for a credentialed and experienced expert.  There is grant money and aid out there for not-for-profit libraries to seek this critical input.  And in many places, simply reaching out to local government can put you in touch with all the resources you need. 

Just like “480 Seconds,” the services of an expert[7] will help your library apply the collective wisdom about active shooter situations to the somber but vital act of planning for an actual situation. 

We can never be truly ready for an active shooter incident, but we can be prepared.  Lockdown might be part of that preparation.  Thank you for this important question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Retirement benefits play a critical part in employee recruitment and retention.  Library leadership should carefully consider—and routinely re-evaluate—the role of retirement in the suite of benefits they use to attract and nurture personnel.

To craft the right retirement approach, leaders must consider not only the legal landscape of their  library, but the local job market, their recruitment objectives, and their retention goals.  The final approach should not only support the library’s plan of service and vision for its mission, but comply with all relevant law.  To ensure this, the plan and final documents should be evaluated by both leadership, as well as an HR professional and attorney.

Municipal public libraries crafting a retirement plan must work with local government;  this is because the retirement benefits they can offer flow from the municipality they are attached to[1].  For that reason, any municipal public library addressing retirement benefit issues should reach out to their municipality’s HR department and/or attorney. 

The member’s questions are a good jumping-off point for some general guidelines to this process.  To take them in order:

Are municipal public libraries obligated to provide retirement benefits for all employees?

No.  Per New York Retirement and Social Security System Law Title 2, Article 2, municipalities may resolve to participate and enroll their employees in the New York State & Local Retirement System (“NYSLRS”), but such resolution and enrollment is not compulsory. 

Once a municipality decides to enroll, the NY Comptroller’s Office helps with the initial assessment of costs[2].  After enrollment by the employer, precise rules govern which employees are eligible for what level of plan; a great summary of who qualifies, and how, is here: https://osc.state.ny.us/retire/word_and_pdf_documents/employers_files/employers-guide/section-5.pdf.

Does the library board need to approve a motion to provide retirement benefits for all employees or selected employees?

Yes and no.  A municipal public library’s enrollment in the NYSLRS flows through the enrolled municipality; [3] if the municipality is enrolled in the system, the (municipal public) library can participate.  That said, to emphasize employer autonomy, promote awareness, and ensure harmony of the retirement plan and benefits with other library operations, the board should be apprised of and vote on the retirement benefit, as well as its description within the employee manual and relevant policy.

NOTE: This “employer autonomy” aspect cannot be emphasized enough.  While great care should be taken by library leadership to coordinate certain employment-related matters with the municipality, a municipal public library SHOULD NEVER SURRENDER OR IGNORE THEIR AUTONOMY AS THE EMPLOYER.  There are a great many opinions[4] of the NY Comptroller (the go-to for municipal governance and budget issues) that emphasize the importance of this notion; it is a critical consideration and one deserving of a great deal of board attention and foresight (and professional input).

Does the number of [employee]hours pertain?

There are very precise formulas and enrolling, qualifying, reporting, and claiming NYSLRS retirement benefits[5], and employee hours are most definitely a part of those formulas. 

Hours are only a small piece of the puzzle, though.  The bigger parts are the details leadership will explore as they identify, and develop, a retirement benefit that supports the strategic direction and mission of their library.  That is a project that will take many hours of thoughtful work and exploration…but if undertaken with the right players, will bring great benefits.[6]

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This is a complicated array of questions, involving a high-stakes area of law…so we’ll take this in stages.

Salaried/Non-Exempt

The member starts by evoking an interesting phenomenon: “Salaried/Non-Exempt” employees; workers entitled to mandatory overtime, but paid via a salary.

This is an employment category that, for a variety of reasons[1], is moving out of fashion…but it is still widely used in 2018.

For purposes of the member’s first question, the important thing to know is: behind the scenes, a “Salaried/Non-Exempt” employee still has an hourly rate.  This is true whether they work a regular week of 20 hours, 32 hours, 40 hours, or even 45 hours (a concept called “straight time”).  The hourly rate is determined “by dividing the total hours worked during the routine week into the employee's total earnings.”[2]

So, as asked by the member, what are the laws governing “Salaried/Non-Exempt” workers who routinely work under 40 hours?  The same laws that apply to those who work 20, 40, or 45.  And one of those laws is the Fair Labor Standards Act.

The Fair Labor Standards Act[3]

The Fair Labor Standards Act (of “FLSA”) is a nation-wide law that ensures certain basic protections for certain types of workers.  One of its many protections is requiring time-and-a-half payment for covered employees working over 40 hours a week.

“Non-exempt” is the awkward but generally accepted term for an employee protected by the FLSA.  The phrase “non-exempt” arose from the FLSA’s “exemption” of many employee categories[4] from its protections…meaning those employees don’t have to be paid for overtime.  

The Byzantine nature of the FLSA’s exemptions and inclusions can be confusing. For example,  an “administrative” position with sufficient authority, meeting minimum salary levels (with no pro-rating for those who work under 40 hours[5]), may be classified as “exempt” under the FLSA.  But another job that sounds just as “professional” might be “non-exempt.” 

But the member’s questions pertains specifically to those who are “Salaried/Non-Exempt,” so the rest of this response pertains only to employees entitled to overtime.

Comp time

The second half of the member’s submission deals with comp time.  What is that?

Under both state and federal law, “Compensatory Time”—or “comp time”—is paid time off earned by government employees in lieu of FLSA-mandated overtime.

How does this work?  If their employer offers it, non-exempt employees of municipal employers can bank time off, working 45 hours one week, 35 the next…and get paid the same for both weeks.

The “comp time” exception was added to the FLSA in 1985 to help states and municipalities confronted by the need to pay overtime.  It is a tool to stabilize civil service budgets (NOTE: although the member referenced private not-for-profits and education institutions, FLSA-governed comp time is not a tool available to private employers).

How long does a qualifying library have to pay out the comp time?   Per the FLSA, one base-line rule is that after 240 hours have accrued, the employee must simply be paid time-and a half[6].  But check out the plethora of compensation memos on file with the New York State Comptroller!  The contract or policy implementing it can set a wide variety of different terms for using it, and for cashing it out.   So there is no base-line answer, except to say: an employer must follow not only the law, but the rules they set…and should have a good system for ensuring both are followed (and again, that is only for public employers).

And as for the member’s last question: what if a librarian—any librarian—simply wants to choose “comp time” over mandatory overtime?  If FLSA-governed comp time is not available, a non-exempt employee cannot waive the requirements for mandatory overtime.  New York likes its workers to have certain basic protections, and this is a big one. 

Final take-aways

Private employers must pay salaried/non-exempt employees their guaranteed salary, and must also compensate such employees for hours in excess of the hours of a regular pay period (based on their established hourly rate).  In addition, hours in excess of 40/week must be compensated with time-and-a-half.  And finally, any "time-shifting" that might be allowed within a pay period cannot go beyond the pay period.  Extra hours worked in a week cannot be swapped from one paycheck to the next; non-exempt employees must be paid for the time they work, within the appropriate pay period.  

But this is generic, base-line guidance. Any library grappling with questions like those posed by the member should use the services of a lawyer or HR professional (who knows when to call a lawyer) to resolve them. 

After all, libraries operate as centers of information and transparency!  Confidence about the clarity and legitimacy of employee working conditions should be considered mission-critical.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Here’s a typical scenario confronting the modern library board president: on the day the director alerts her that a patron is using the copiers to copy sexually explicit material—taking care to ensure the patrons and employees can see it— a clerk has threatened to complain to the union if the municipal lunch room isn’t made accessible to library employees.  The board chair looks compassionate and sighs…she’ll add these to a list that already includes:

a) trying to figure out if the library actually has a lease for its premises, where it has operated since 1892, but no one can find the deed or contract;

b) assessing if there’s enough money in the endowment to fix the elevator before there’s a complaint under the ADA (and can those funds even be used that way?); and

c) revising the employee handbook.

Municipal law, education law, employment law, intellectual property, and civil rights…all meet at the crossroads of “library law.”  Libraries also have unique protections under New York’s CPLR, and as they become increasingly critical providers of technology, must be adept at interpreting software licenses, too. 

The array of legal issues is endless.  How does a library find the right lawyer? 

To make sure your library can find the right fit for you, I have five answers.  But first, I have THREE IMPORTANT PRIMARY CONSIDERATIONS

Primary Consideration Number One: remember that legal services can be an expenditure like any other.  If your library is subject to a procurement policy, you may need to develop a “Request for Proposals” (“RFP”) to seek the service.  So before you try and of my suggestions below, rule an RFP in our out.

Primary Consideration Number Two:  The New York State Education Department’s Division of Library Development is a great resource for information, particularly on structural/charter, budget, and grant matters.  They are there to help you, so don’t hesitate to call (even if they end up telling you to find a lawyer—and they might—you’ll have a nice chat).

Primary Consideration Number Three:  NYLA, New York Library Trustees Association, and your regional council may have some resources for you, too. 

Of course, be careful how in-depth you go when describing your issue(s) to these resources, since these communications would not have attorney-client privilege.

Okay.  Here are “Five Ways to Find a Library Lawyer:”

1.         In many counties, the local Bar Association runs an “attorney referral service.”  Attorneys who participate in the service will self-identify areas of experience and interest.  For many such services, the first 30 minutes of consultation with the lawyer they send you to is at a greatly reduced rate.

2.         Almost all lawyers¹ enjoy “knowing someone.”  So even if they don’t practice in those areas, ask every lawyer you know for a referral.  Someone will eventually “know someone” who practices the type of law relevant to your library’s current needs.

3.         Ask a local elected representative or municipal employee about lawyers they know who practice municipal law, or check to see if your local college or university has a “general counsel.”  This could put you on the trail of attorneys with the right array of municipal, education and employment law experience.

4.         Members of any regional library counsel or network can separately contact the provider of this “Ask the Lawyer” service: The Law Office of Stephanie Adams, PLLC, at adams@losapllc.com.  If there is no conflict of interest, and your issue is within our experience, we can help—or, we can help you find the right attorney (not every issue needs a “library lawyer”).  The contract for such work would be separate from the service your regional council or network pays for, but you get the same hourly rate for most types of work.

5.         Your insurance carrier may have a list of law firms near you to help out, and may even have some internal resources it can provide for policy and compliance-related matters.  Call your broker or representative to inquire (remember, your insurance carrier has a high motivation to you connect you to timely legal advice and avoid a claim!). 

When selecting a lawyer, is very appropriate to asking about past work, rates, and proof of malpractice insurance coverage.  The terms of any services should be confirmed in a signed “retainer agreement” or “letter of engagement.”  And don’t be shocked if the person you talk to says “I would have to research that.”  In my experience, libraries come up with very complicated and unique questions.  An experienced attorney may be able to give a quick tentative answer, but will then almost always want to check the latest case law, read your bylaws, and review other factors before committing to final, written advice.

Good luck!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This question seems simple, but it actually involves some high-end concepts of business law and liability.[1]

Most libraries, museums, theaters, and other units within large institutions are actually part of the same entity.  In other words, although they may have a distinct identity within their institution (“The Michael  Library” “The Peter Museum” or “the Catherine Gym”), there is only one actual legal entity (“Romanov College”).

Many people find these niceties hard to grasp, but here is why it is important: in this scenario, the single entity (the college) includes the on-campus copy shop.  This means that what the shop does, the entity does…including alleged infringement.[2]

This same unity generally applies to employees, too.  In a body of law called “Master and Servant,”[3] if an employee is performing a task related to their job, and not deliberately violating employer policy or the law,  for purposes of the legal system, the employee’s actions will generally[4] be imputed to the institution. 

This is why institutions are best served in this area by educating their employees about copyright, and documenting the employees good-faith efforts[5] to abide by the law (it is also why many HR manuals have warnings about the consequences of not following policy: it limits the institution’s ability to protect you).

This puts lot of pressure on the employees who staffing the in-house copy shop. What are their responsibilities?  Do they need to educate their co-workers on copyright risk?  Are they expected to protect the entire college?  Each institution has different policies and job descriptions that answer those questions differently.

That said, is there a simple approach that can help with this?  Yes.  For the in-house copy shop (NOT for an on-campus contractor), below is a framework to address copyright priorities with diplomacy, tact, and helpfulness.  It is designed to be used with an institution’s “Fair Use Assessment” form, and to route people to the person responsible for permissions at your institution[6]. 

NOTE:  All that said, any copyright-related form not custom-designed for your organization should be reviewed for cohesion and consistency with other institutional policies, including those in the employee manual.  Never use any copyright-related form without considering your institution’s unique needs and approach to copyright and liability!  If your institution has an in-house lawyer, compliance officer, risk manager, or insurance carrier, make sure they are part of finalizing any such form or solution. 

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

I have good news, and bad news. 

First, the bad news: most of the legal factors involved do not support this type of “job share.” 

Now, for the good news: the type of capacity-adding at the heart of the member’s question is feasible…with a slightly different legal structure.

What are the legal steps to creating such an arrangement?  For chartered libraries, they are numerous and intricate, but considering the goal (added service), the work might be worth it. 

Here are the factors to consider:

1.  The libraries’ chartered identity

The question cites a potential collaboration between a municipal and an association library.  Just in that coupling, there are issues, since depending on entities’ size and type, the institutions will have different staffing requirements.  When considering a capacity-adding staffing model, those requirements should be kept in mind at all times.

2.  The libraries’ bylaws and staffing policies

Staffing requirements and other factors impacting staffing might be recited in the libraries’ bylaws and policies.  So those documents, too, should be factored into this exercise.

3.  The libraries’ plan(s) of service

Does the resulting staffing schema fit into their respective plans of service? 

4.  Labor law details, such as workers’ comp, unemployment, FMLA, and ADA

Here is where the technical nitty-gritty, and the concerns that generally bar “shared” staff between separate entities, starts.  Whenever an employee is brought on to work at more than one legal entity, it is important to confirm who would actually be the employer, so the arrangement complies with state and federal labor regulations. 

One example of why this is important is workers’ compensation.  Per New York state law, if a worker sustains an injury on the job, that worker is covered by “comp,” and the employer is indemnified for (almost) any personal injury claim.  This protects both the employee (who gets some wage/salary continuance) and the employer (who generally does not face additional liability for the injury).  In a truly “shared” employee arrangement, with debatably two (or more) employers, the resulting ambiguity could result in a contested or denied coverage claim.

Another example of how a “dual employer” arrangement could be risky is revealed by  considering the American with Disabilities Act (ADA).  Under the ADA, employers are responsible for providing employees with reasonable accommodations for permanent and temporary disabilities; failure to do so can result in serious liability (and fines).  But with a “shared” worker, it can be tough to know who would have that responsibility…and be responsible for failing to follow the law.

There are many more reasons along these lines.

5.  Salary equity and benefits-related details

This is a critical one, because employees who are not treated equitably in comparison to other employees can have an array of legal claims.  Examples abound: If one library offers more paid time off than the other, how do the libraries offer the “shared” employee a fair and legally compliant arrangement?  If the libraries have different systems for evaluation and promotion, how does the employee advance?  If one library is found to be treating a particular class of employee unfairly, does that impact the other library?  While minimal staffing at the employing institutions might limit some of these concerns, even if there is one other part-time staffer to compare to, ambiguity could turn into liability.

6.  The actual legal relationship between the libraries and the “shared” employee

From the legal perspective, this is where the rubber hits the road.  For the reasons set out above (and many others), it would be almost impossible for both libraries be “joint,” employers: even if possible, it would likely be too risky.  But with another legal relationship, this resource-sharing might be feasible.

What is that “legal relationship?”  Well, it would depend, but the most feasible solution would likely be one library hiring an employee specifically to add to the capacity of other libraries.  In this model, there would be no “shared,” employment; rather, the first library would offer their employees as extra capacity on a contractual basis. 

In such a “Capacity Contract” scenario, money paid by the second (or third) library would not be a salary/benefit contribution, but rather, a fee for services (that happened to help pay for the salary and benefits of a full-time librarian).  The relationship would need to be carefully set out in a detailed contract and hiring documents that confirmed how any performance evaluation, employee discipline, civil rights, personal injury, and other claims would be handled.  And the factors I list above (starting with the identity of both libraries, and considering the various regulatory, bylaw, and policy obligations they have) would have to be assessed to see if it was even feasible.  Most critical would be: is adding to the capacity of others consistent with the hiring library’s plan of service?

With careful planning by leadership and trustees,[1]and input from an attorney and HR professional, this type of “shared” staffing could be built.  The end result would be:

• a careful documented analysis of the relevant factors;
• a carefully developed job description for the capacity-adding employee;
• a contract between the library or system providing the additional resource and the library served. 
• Hopefully, many more patrons served!

As I said at the beginning, this could be a fair amount of work.  But if it provides a small library with access to specific expertise and a diversity of talent it might otherwise not be able to afford, it could be worth it.  Just approach the details with care.

Thank you for this important question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

The lawyer answers…

This is an area that library leadership has to be very careful about. While the laws, regulations, and policies governing library employees vary (based on the type of the library, and the type of institution the library/archive might be part of), there is a growing body of case law ruling that employers may not discipline—or chill—employees’ use of social networking to comment about their work experience.

As but one example, a recent National Relations Board (NLRB) decision¹ barred a company from using the following employee handbook provisions:

• Prohibiting the posting of “embarrassing, insulting, demeaning or damaging information” about the employer, its products, customers or employees.

• Barring discussion of all information gathered in conversations, emails, and meetings as “confidential and proprietary.”

• Prohibiting employees from referencing or citing employer’s members, employees or vendors in social networking without their express consent.

• Maintaining a rule in a “Social Networking Guideline” that prohibits the use of the employer’s name, logos or trademark without the employer’s consent.

Although the case cited is from a union environment, the NLRB has claimed jurisdiction for non-union workplaces where federal grant dollars fund operations². And of course, municipal-owned libraries, who might not be subject to NLRB jurisdiction, have to worry about First Amendment concerns—a different but not less critical priority. This well-developed case-law means I can give a very brief, decisive reply to this question:

Policies related to employees’ personal social networking should be finalized with the input of legal counsel, who will help you consider the goals of the policy, to comply with the law. Once developed, such policies should be routinely assessed by your institution’s attorney.

That said, there are obviously many good reasons for a library to have a strong, distinct, and official presence on social networks—and the good news is that this can be accomplished by an approach that is more affirmative than proscriptive. The legal/operational tools of a strong social media presence are:

• Well-established library trademarks (name and logo);

• A domain name that matches the trademark name, if possible;

• Consistent use of those marks for social media sites/posts;

• An “official voice” (tone, style) for posts and content;

• Selecting and updating the utility used (FB page, Twitter, etc.) to make sure the settings support the tone you want;

• A consistent approach to hosting (or not allowing) community dialogue;

• Well-established parameters, consistent with the library’s mission, for how and why the page is operated;

• A person who has routine maintenance of the social media resources written into their job description or volunteer letter³ (and, if possible, at least one back-up person);

• A strong internal policy, well-communicated to employees, that ties this all together. This policy should not reference personal social media.

By cultivating a strong social media presence, ancillary content by employees and volunteers, on their own personal pages, will be made less confusing. This is a tactic worth considering, because as shown above, restricting employees’ ability to discuss work via social media is fraught with legal risk.

The foresight and caution showed by this question is very wise, indeed!