RAQs: Recently Asked Questions

Topic: Name of Employee Personnel Policy - 11/03/2021
Should what we think of as the personnel policy be called Employee Handbook or Personnel Policy? ...
Posted: Wednesday, November 3, 2021 Permalink

MEMBER QUESTION

Should what we think of as the personnel policy be called Employee Handbook or Personnel Policy?

Sometime in the past, legal counsel advised a library system I was involved in, that the term "Employee Handbook" is correct. The document under now review at my library has what amounts to the rules of employment - typical sections about what the library provides, what we expect the employee to do etc. and does have a page acknowledging receipt of the document.

So what should it be called?

Thank you!

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.



[1] Of course, "policy" is also used in other ways in the employment context.  A big example: it is often used in the NY Civil Service Law, which frequently refers to the development of "policy" (meaning governmental positions).  Second, it is used in the context of different types of insurance required of employers (a workers' compensation insurance policy, a paid family leave act policy, a disability insurance policy...etc.). 

Huh.  I have never thought about it before now, but we should really develop some more refined terms for different "policies."

[2] New York Labor Law 201-g

[3] New York Labor Law 218-b, aka the "HERO Act" (for more on that, see Footnote #7.)

[4] New York Not-for-Profit Corporation Law Section 715-b requires this of every not-for-profit that has "twenty or more employees and in the prior fiscal year had annual revenue in excess of one million dollars." 

[5] Or an "Employee Manual" or a "Company Manual" or whatever the employer wants to call it.

[6] The legal bases for why this acknowledgement is advised will vary based on the Handbook/Manual's contents and the employer's industry.

[7] For more on the HERO Act, see "Ask the Lawyer" RAQ  here: https://www.wnylrc.org/ask-the-lawyer/raqs/226

Tags: Employment, Labor, Legal Poems, Management, NY Labor Law, Policy

Topic: Collaborating with volunteer organizations to provide services - 04/13/2021
If a nonprofit organization is unionized, may they have volunteers as part of a collaborative effo...
Posted: Tuesday, April 13, 2021 Permalink

MEMBER QUESTION

If a nonprofit organization is unionized, may they have volunteers as part of a collaborative effort with another organization for a service that is not currently provided? For example, could they collaborate witha volunteer organization for an outreach service that is not currently provided.

WNYLRC ATTORNEY'S RESPONSE

This is a very good question, since the use of volunteers to supplement or replace work typically performed by union employees can most definitely be a violation of a collective bargaining agreement.

In one case[1] from 1981, a school district on an "austerity budget" used volunteers to set up (and then clean up) district facilities for student sports--a task typically performed by custodial workers under a collective bargaining agreement ("CBA").  An arbitrator found that the district's use of volunteers to perform the unionized workers' tasks violated the CBA, and the workers were owed pay for the work they should have had the opportunity to perform.[2]

That said, schools, libraries and not-for-profits with unions routinely use volunteers for all sorts of things; clearly, not all use of volunteers risks violation of a CBA.  So, my plain answer to this question is: "yes, if the library is careful."

The rest of this reply sets out what I mean by "careful."

First, any not-for-profit has to exercise caution when using volunteers, because (as the member's question points out) there can be concerns that some use of volunteers violates the labor law.

The NY Department of Labor has really good basic guidance on this at https://dol.ny.gov/system/files/documents/2021/03/p726.pdf

In relevant part, that guidance says:

Unpaid volunteers [at an NFP] may not:

• Replace or augment paid staff to do the work of paid staff

• Do anything but tasks traditionally reserved for volunteers

• Be required to work certain hours

• Be required to perform duties involuntarily

• Be under any contract to hire by any other person or business express or implied

• Be paid for their services (except reimbursement for expenses) 

Considering this guidance, when I work with libraries and other not-for-profit organizations who are considering using volunteers (no matter what the work for the volunteers will be, and whether or not there is a union), I advise that the organization have a volunteer policy

The volunteer policy should cover all the concerns raised in the bullets above, as well as address risk factors such as placement letters confirming the terms of volunteer service, safety, insurance, and when a library using volunteers will conduct background checks.

Second, when I work with libraries and other not-for-profit organizations who are considering using volunteers, who also have one or more unions representing their employees, I stress the need to work with the union(s) pro-actively to confirm that an activity performed under the volunteer policy is not regarded as replacing paid/union workers.

There are a number of ways to achieve this confirmation.

The most formal way would be accomplished through a broad exclusion clause in the union contract(s) so every program does not present an ad-hoc task (but that could be a hard thing to fight for at a negotiation).  A sample clause for that could be:

It is understood between the Parties that volunteer service performed per the Library's "Volunteer Policy" to enable events and programs that are not part of the Library's Plan of Service are not regarded as replacing or supplementing union members. 

However, if such a clause is not a part of the standing collective bargaining agreement, a simple exchange of emails, or a more formal signed memorandum addressing only one type of volunteer activity, can be used to confirm this understanding.

The goal in all cases is to have clarity about what service is being performed by the volunteers, and to be able to show an affirmative agreement that it is not negatively impacting the experience of the workers in the union (which risks assertions of breaching the contract).  Since the perception of "negative impact" (and breach) can vary from place to place, this is not an understanding to pursue after-the-fact nor without a solid understanding of the legalities and subtleties of the situation.[3]

Third, even if a union is amendable to it, I would caution a library against using volunteers for any service that is part of a library's Plan of Service, since that can undercut the data needed to support adequate state/local funding.  Volunteers can be invaluable assets, but a library should always be able to function as required by law without them.

Fourth, if all the other cautions and no-no's listed above check out, it is vital to have a very clear agreement with the collaborating organization outlining the nature of the service, and each parties' roles and responsibilities for it.  This ensures the risks and liabilities posed by offering any program to the public are properly balanced, and the library isn't taking risks for the actions of volunteers provided by another organization.  I know it sounds impolite, but when it comes to volunteer services from a third-party, a not-for-profit must look a gift horse in the mouth.[4]

In many ways, it's a new world out there.  For libraries seeking to innovate and work with other organizations to co-produce new programs, the above-listed cautions can set the stage for using volunteers without worrying about violating a union contract.

Thank you for a good question.



[1] (Onteora Cent. Sch. Dist. v Onteora Non-Teaching Empls. Asso., 79 AD2d 415 [3d Dept 1981])

[2] After the original decision cited in footnote 1, this case takes a lot of twists and turns through different rulings involving the education law and the authority of arbitrators.  But the takeaway for purposes of this answer is: "Yes, use of volunteers can violate a CBA."

[3] For this reason, whenever possible, an attorney who knows the volunteer policy, knows the details about the service to be performed, and knows the union contract, should be consulted in advance.

[4] Of course, libraries and other organizations can host volunteer services (have them on site, but not co-sponsor them) provided by other organizations (such as Literacy Volunteers) without having to worry about these issues quite as deeply.  "Hosting," rather than "collaborating" is a way to work with other organizations (and their volunteers) while not exposing a library to an assertion of violating the labor law, a CBA, or incurring unnecessary liability.

 

Tags: Labor, , Non-profits, Policy, Unions, Volunteers

Topic: COVID-19 and part-time pay - 3/16/2020
Can libraries, using public money, pay part-time staff if they are either forced to close due to t...
Posted: Monday, March 16, 2020 Permalink

MEMBER QUESTION

Can libraries, using public money, pay part-time staff if they are either forced to close due to the COVID-19 or if the employee is forced to self-quarantine?

WNYLRC ATTORNEY'S RESPONSE

This is a very specific question, during a very specific, difficult time.  So before we delve into the answer, I want to be clear: every library dealing with the human resource considerations of a pandemic response should assemble the following, and be ready to draft a custom approach that takes into consideration:

  • Safety policies
  • Library bylaws
  • Emergency closure and compensation policies
  • Employee manual
  • Collection Bargaining Agreement(s) (if in place)
  • Insurance policy (the section to check specifically is the coverage for business interruption)
  • Up-to-the-minute declarations or advisories from relevant authorities and relationships (Center for Disease Control, congressional representatives, Governor, state representatives, County Health Department, Library System, local Civil Service contact, State Library Development rep, payroll service/entity handling payroll)
  • Employee Assistance Program (“EAP”) (if relevant)

After examining these resources, some libraries may find they already have “Emergency Closure,” “Quarantine Leave” and even “Pandemic Response” policies that address this question.  They might even find that their library’s EAP program will offer help to employees struggling to find childcare or eldercare.

Still other libraries may find that while they don’t have pandemic-specific policies, their policies for compensation during times of natural disasters or declared states of emergency will apply to this situation—including for part-timers.[1]

And finally, by examining the listed materials and working with the listed resources, a library can position itself to develop new, customized policies for safety (first!) and compensation continuity during a pandemic emergency.  Further, they will be able to coordinate their response with their system and emergency response efforts in their region.

So, with that said, below is the answer to the member’s question, which must be divided into two parts: compensation during emergency closure, and compensation during quarantine.

After that, I include commentary on the roots of the authority you’ll see in the answers.  And finally, I offer a sample policy and resolution for libraries that have no provisions for emergency closure pay and pandemic response, and want to proceed with maximum flexibility as they address this national crisis.

To the greatest extent possible, all of this should be done with the input of the library’s lawyer.

Compensation During Emergency Closure

NOTE:  Before taking any action, check to ensure your library’s collective bargaining agreement, if there is one, does not have a relevant provision regarding compensation during emergency closure.  This is critical.

A policy for compensation continuance during emergency closure is distinct from policies for paid leave (even though some libraries may already use their paid leave policies to address the ability to pay staff during an emergency).  Essentially, the library must identify if it 1) wishes to keep employees on call for their regular or reduced hours, even if the library is closed; and 2) what tasks those people can do, even if it is simply being “on call.

As the members question implies, a library’s provisions for this may vary based on the employment category of the employee (the variables might even go beyond the distinction of “part” and “full” time).

Here is a sample provision enabling this approach as part of an “Emergency Closure Policy” or “Pandemic Response Plan:”

Paid leave during emergency closure

When the library temporarily closes due to a declared state of emergency, and all or some employees are instructed not to come in to work, upon a vote of the board, compensation shall continue as follows:

[insert your library’s employee categories and method of compensation continuation; be careful to insert DURATION and any TIME/AMOUNT LIMIT of pay, and modes of calculation.  For example:

“Full-time staff shall be paid at their regular rate of pay.  Part-time staff shall be paid for their regularly scheduled shifts; for part-time staff with variable schedules, the weekly amount will be based on an average of the last three pay cycles, or as determined by the board.]

To be eligible for compensation during a time of emergency closure or reduced hours, employees must be ready, willing and able to work remotely on projects identified by library leadership during their regularly scheduled working hours, and must complete such duties as assigned.  When performing tasks remotely, employees should note the time worked through the usual process for logging hours.

Because an emergency compensation continuance policy builds on employees’ ability to work remotely, a policy for remote work is a good companion piece to this type of policy.

Libraries should also bear in mind that injuries during remote work can be covered by Workers’ Compensation, and should ensure that any remote-work policy consider how the set up remote working as a safe experience.

Quarantine Leave

“Quarantine leave,” is paid time off during a time of quarantine (which can be imposed, or self-imposed), as a specific policy allows.

NOTE: “Quarantine leave,” is actually always available to state civil service employees.  In fact, at the onset of New York’s Covid-19 response, the Governor declared that all state civil service employees would be eligible for up to two weeks of quarantine leave,[2] regardless of classification, and as of this writing, nationwide coverage for certain private-sector employees is under development. CSEA, the union for public sector civil service workers (including library employees), is posting updates on this, as well, and libraries with CSEA bargaining units should stay attuned to that resource.[3]

How can publicly funded libraries implement Quarantine Leave?

NOTE:  Before taking any action, check to ensure your collective bargaining agreement, if you have one, does not have a relevant provision (chances are it will).

A good model for a “Quarantine Leave Policy” can be found in the state’s civil service law; below is a sample, with some additional language regarding part-time compensation:

If a full or part-time employee who is not personally ill is required to remain absent because of quarantine imposed by a governing authority, or if during a declared emergency an employee determines to self-quarantine and such employee presents a written statement of the attending physician or local health officer proving the necessity of such absence, such employee shall be granted leave with pay for the period of the required absence. Such pay shall cover the employee’s routine hours (part-time hours will be based on an average of the most recent three pay periods, or as set by the board).  Prior to return to duty, such employee may be required to submit a written statement, from the local health officer having jurisdiction, that return to duty will not jeopardize the health of other employees.

To be eligible for compensation during quarantine leave, employees must be ready, willing and able to work remotely on projects identified by library leadership during their regularly scheduled working hours, and must complete such duties as assigned.  When performing tasks remotely, employees should note the time worked through the usual process for logging hours.

Like with all employment policy, this is not something to adopt without a thorough scan of the above-listed documents, to ensure your library has no contradicting bylaws, contracts, policies, or hire letters.

We just want to pay people during a hard time, what could the concerns be?

There are three primary things that can get in the way of simply committing to pay people through a state of emergency: a union contract with set terms regarding emergency pay, concern over “unconstitutional use of public funds”, and budget concerns.

Concern #1: Union contracts

As you’ll note from my many caveats and uses of bold in the sections above, paying attention to a union contract (if your library is a party to one), and working with your local bargaining unit as you craft your pandemic response is a high priority at this time.  A good union will be looking out for their members’ health and well-being—but will also be looking out for failure of the employer to adhere to the current contract.

What happens if your union contract states that part-timers will not get emergency pay for emergency closure or quarantine?  Unless something is changed, in writing, and agreed to with the bargaining unit, OR your library has a “reserve clause” clearly allowing changes in a time of emergency (don’t assume you do unless it has been reviewed and ok’d by your lawyer), your part-timers will not be getting paid.

Contracts with civil service employers in New York can be looked up here: https://perb.ny.gov/nys-perb-collective-bargaining-agreements-a/.  You can see many libraries, large and small, are listed.

I took a quick look and of the libraries I checked, different libraries have different emergency closure pay provisions.  So, what happens at the library over in the next county--even if they are in your system--might not be what can happen at yours.  This is a very careful thing to pay attention to, as it may affect employee well-being and morale.

That said, if leave with pay is barred by a CBA[4], and your board wants to address the issue of quarantine leave and compensation continuity, now is the time to contact your library’s lawyer, and head to the table (or, more properly during this time of sensible social distancing, a teleconference) with the head of your bargaining unit.

I imagine the head of the union will make the time; after all, this is all-hands-on-deck.

If your library isn’t in a collective bargaining agreement, while you have a lot of pressures hitting the current situation, this issue isn’t one of them.

Concern #2: Allegation of improper use of public funds

Article 8, §1 of the New York State Constitution states: “no county, city, town, village or school district shall give or loan any money or property to or in aid of any individual.”  The reach of this clause includes public libraries.[5]

Concern about this clause can be seen in the member’s question; from a certain point of view, paying staff (full or part-time) when they aren’t at the library doing their routine tasks could seem like a “gift.”  After all, the employee is not at work, and they are getting money.  Sounds like they are getting something for nothing, right?

Wrong.  When implemented with careful attention to detail, such emergency response policies are part of a legal and sensible compensation structure that enables something for something.  What is that “something?”  A stable, reliable work force anchored by a stable, reliable income, ready, willing and able to work during a time of emergency (just when people need libraries most).

But such policies cannot be improvised, half-baked, or under-documented.

Armed with the information that properly effected and documented compensation during emergency closure or quarantine is not a violation of state law, if a public library doesn’t have an emergency closure policy or quarantine policy, and they want implement them now, a good approach is to gather the resources listed at the top of this answer, assess any pre-standing obligations your library has, and then adopt or refine some policies.

Here is a sample board resolution for a library that confirms it has no agreements or policies to the contrary and desires to set up maximum flexibility during this state of emergency:

WHEREAS on March 7, 2020, the Governor of the State of New York issues Executive Order 202 declaring a state disaster emergency; and

WHEREAS, as a result of the world-wide pandemic underlying the state disaster emergency, the library may need to close, reduce hours, or reduce staff reporting for duty; and

WHEREAS, the board has duly reviewed the public safety and budget considerations of reducing operations and continuing regular pay during the state of emergency; and

WHEREAS, the board recognizes that to best serve its area of service and protect the health of the community and its employees, employees may need to be directed to report to work at the library, to work remotely, or to be on-call but not report to work during routine hours; and

WHEREAS, the library is a community resource for critical information at this time, and must remain ready to respond to community needs as is within its capacity and budget;

BE IT RESOLVED that the board adopts the attached policies on “Quarantine Leave” and “Paid Leave During Emergency Closure;” and

BE IT FURTHER RESOLVED that the board shall continue to compensate full and part-time staff as allowed by law and provided by the policy for Quarantine Leave and Paid Leave During Emergency Closure between [DATE] and [DATE]; and

BE IT FURTHER RESOLVED that the library director and the [Executive Committee] of the board shall maintain ongoing communication and monitor the best approach to address safety and operational concerns, and shall inform the full board of same; and

BE IT FURTHER RESOLVED that the board shall reconvene on [DATE] to reconsider the continuation of compensation in light of what may be needed for the community and the library to recover from the state of emergency and return to normal operations.

 

CODA: A Note on Authority

What laws create a public library board’s authority to craft emergency response policies?

This starts with the basics. Education Law §259 required all moneys received "from taxes and other public sources" in the name of a library to be kept in a separate fund.[6]  And regardless of who is “holding the money,”  “the ultimate control of the use, disposition and expenditure of the library fund moneys is vested in the library board….” (1991 Opns St Comp No. 91-57, p 158) [emphasis added].

As the New York State Comptroller has stated repeatedly: public libraries are, for most purposes, fiscally autonomous from the sponsoring municipality (see Opn No. 91-57, supra; 1983 Opns St Comp No. 83-32, p 37; Buffalo Library v Erie County, 171 AD2d 369, 577 NYS2d 993 affd 80 NY2d 938, 591 NYS2d 131).

So even if a library’s sponsoring village, town, or city has a defined emergency closure policy that precludes paid time off for part-timers, the library can decide to adopt their own (that said, if the municipal policy is a good one, the library can choose to “borrow” it and go along for the ride…but should still specifically adopt the policy as its own).  As the Comptroller put it in opinion 1981 N.Y. 1981 N.Y. St. Comp. 485: “…it is the library board which determines the vacation and sick leave benefits for library employees. It is our opinion that a library board of trustees has implied authority to provide for sick leaves and vacations for library employees.”[7]

What reigns this in?  Compensation paid as part of any emergency closure or leave policy must be established, tracked, paid, and accounted for in a way that survives the scrutiny of an audit.  The terms must harmonize with the obligations of any relevant collective bargaining agreement.  And ideally, such an approach should bake in conditions to help the taxpayers see that compensated time out is in the best interests of the public.  That is not an easy array of requirements to meet.

But done right,[8] can emergency closure pay, or quarantine pay, for part-timers be “legal?”

Yes.

Author bio:  Stephanie Adams provides the “Ask the Lawyer” service to the library councils of New York.  For over 10 years she was in-house counsel for Niagara University, where she was (among other things) a member of the University’s pandemic response team.

 



[1] One elegant policy I found was simply “If the Library closes because of extreme weather conditions or emergency conditions, employees scheduled to work will be credited with time as if worked. Previous time off requests supercede any credited time.”  Go Geneva Public Library!

[4] “Collective Bargaining Agreement”

[5] It is the section that, along with many other things, bars libraries throwing extravagant parties for library volunteers.

[6] (1986 Opns St Comp No. 86-54, p 86),

[7] The Comptroller cited some more authority there: “see Opn No. 80-199, supra; 1961 Atty Gen [Inf Opns] 105; Education Law, §§ 226(7)260).”

[8] “Done right” means: consistent with your library’s bylaws, collective bargaining agreement, and employee manual, with particular attention to consistent and compliant use of the full-time and part-time categories, and FLSA status.

Tags: Labor, Emergency Response, Employee Rights, Quarantine Leave, COVID-19, PTO, Vacation, and Leave

Topic: Employee Rights - 12/12/2019
Hi! What is the order of due process in a local library for employees? Which laws/policies appl...
Posted: Thursday, December 12, 2019 Permalink

MEMBER QUESTION

Hi!

What is the order of due process in a local library for employees?
Which laws/policies apply most in advocating employee rights?

  • Federal Employee Law
  • NYS Civil Service Law
  • County Civil Service Law/policy
  • NYS Public Library Law
  • Individual Library policies and contracts

Please let me know.

Thank you!

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):

 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?

 



[1] If I were the sort to write via emoji, I would be using the icon for “Mind.  Blown.”

[2] That’s me.

[3] There is a definition for purposes of liability, a definition for purposes of compensation, and a definition for purposes of copyright ownership of employee work product.  And yes, they are all slightly different.

[4] “Black letter” laws are those “embodied in…statutes.”  Thanks, Black’s Law Dictionary! (Centennial Edition)

[5] Due to changes in 2018.

[6] This opinion is here: https://www.osc.state.ny.us/legal/1990/legalop/op90-63.htm.  The final decision?  “A public library may sponsor a recognition dinner for volunteer library workers, but may not sponsor a party for the senior citizens of the sponsor municipality or school district..

[7] This “screen” is either a lawyer, an HR professional, a civil service professional, or a library system or council working with one of those to support your unique operations.

[8] And more….so many, many more…

[9] In layman’s terms, this means you are protected in the event you are sued for just doing your job.

[10] I was lucky enough to attend an excellent presentation by authors of this Guide at the 2019 NYLA Conference. 

[11] My team is great!  Every employer should have this problem.

 

Tags: , Management, Policy, Employee Rights, Labor

Topic: Ownership of Employee Created Materials - 5/25/2017
At a recent WNYLRC webinar, we discussed the ownership of materials generated by library staff.&nb...
Posted: Thursday, May 25, 2017 Permalink

MEMBER QUESTION

At a recent WNYLRC webinar, we discussed the ownership of materials generated by library staff.  Who owns the massive amount of original work generated by an active, engaged library staff?

WNYLRC ATTORNEY'S RESPONSE

The answer is: it depends. 

Let’s start with the fundamentals:

FIRST:  Copyright vests the moment an original work is fixed in a “tangible medium of expression.”  Trademark is established through either registration or use on the marketplace.  Patent can protect useful articles and unique business operations.  Trade secret law can protect confidential  information that gives your institution a unique edge.   What does this mean?  It means that the e-mails, presentations, displays, unique business solutions, archive collections and other valuable work-product generated by library staff are all assets that can be owned.

SECOND:  Unless there is a contract, policy, or other express documentation to the contrary, an employer owns the copyright to any work produced by an employee as part of the scope of their employment (this is one of the reasons why it is always important to ensure staff have updated job descriptions).  For trademark, patent, and trade secret, similar rules may apply.  Be warned…if not set out clearly, this “express documentation” can take many forms: it can be buried in a union contract, can be inferred from a hire letter, or might even be derived from a habitual business practice.  For both the library and its employees, there should be a clear policy.

THIRD:  Not only copyright, trademark, patent, and trade secret law governs the control of employee work-product.  The ethics of the profession may influence ownership.  If your library serves a particular industry, like education or healthcare, the work-product is controlled by privacy regulations.    It is important that the initial ownership arrangement between the library and its employees consider the other terms that may govern the work product, and it is critical that any policy reinforce the obligation to safeguard certain information. 

So how does a library set up to ensure it owns the valuable work product it pays its staff to produce, but doesn’t encroach on the employees’ right to generate their own intellectual property when not at work?  As more and more people “work from home,” use their own laptops, and may even compose work product on their cell phones, it couldn’t be more important to observe the following:

A carefully considered policy on employee work product.  This policy should be harmonized with the ethics and mission of the institution, its policy on employee use of technology, and its regulatory compliance obligations.  This does not have to be extensive; just a few clear, concise paragraphs in the Employee Handbook. 

Clear hire letters and routinely updated job descriptions.   Remember, in order to determine if something was created as part of an employee’s “scope of employment,” both parties need a clear notion of what that employment is!

Routine copyright, trademark, and patent registration of critical employee-generated IP. If your archives are known for a particularly good compilation of old photographs, for example, consider registration of the compilation with the Library of Congress (even if the images already have their own unique registration).  If you gave the compilation a unique name, consider trademarking it.  If your library developed a unique way to search the archive, explore a patent (before disclosing it to any other party!).

And if the asset is not only employer-owned, but critical, make the necessary archive and recovery copies, and make sure that back-up is controlled by the employer (locked cabinet, separate hard drive, employer-licensed cloud service). 

What can an employee or institution do if there is confusion regarding an employee-generated asset?  The best option is to promptly consult a lawyer.  Remember…what people do and say during the initial phase of a dispute can later become evidence, while timely input can hopefully avoid unnecessary debate, and find a “win-win.” That said, there is no replacement for clear hire terms, current policies, and routine IP asset management.  Staff and the great work they generate are critical assets of libraries and archives, so clarity is definitely worth the effort!

Tags: Copyright, Labor, Trademarks and Branding, Work-for-Hire

The WNYLRC's "Ask the Lawyer" service is available to members of the Western New York Library Resources Council. It is not legal representation of individual members.