MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

There is no one right answer to this question, but there is a formula for any library to come up with its own, unique answer.

Here is the formula:

[Situation] x [Ethics + Law] / [POLICY/Precedent] = YES or NO

Let me break this approach down.  And trust me, I will give a clear reply to the member's question at the end of all this.

The formula starts with the situation.  In the scenario we have here:

"Local police walked through our Library earlier today with no explanation. Later on, we noticed 2 teens on premises, who we assume should have been in school. We thought the police may have been looking for them as truants, but that is not confirmed."

There is a lot that can be said about this description, but one important aspect of it is the library's care to not reach a conclusion about why the teens were at the library instead of school (while the member describes an "assumption," there is no action on that assumption).  And as noted, law enforcement was not called; rather they "walked through...with no explanation."

This situation is then multiplied by the combined factor of ethics and law.  Both the ALA and NYLA Codes of ethics emphasize patron confidentiality.  Meanwhile, New York's Civil Practice Law and Rules ("CPLR") Section 4509,[1] the state law requiring a subpoena or judicial order before a user's library records can be shared without that patron's consent, does not define "library records" other than to state that they include "personally identifying details."  This is why whatever the situation, ethics, and law are, the answer must be assessed under a library's policy governing patron records (while considering past applications of the policy, to ensure consistent application).

It is at this last factor--policy--where things can get complicated.  With the advent of (sorta) new technologies, the definition of "library records" is not just internet searches and checked-out materials.  It could be what a person printed on a 3D printer, or their image on a surveillance camera, or their use of library wi-fi.  None of these things, right now, are listed in CPLR 4509, but many library professionals would consider them to be library records.

The trick is making sure that when a library takes a position about library records (especially with regard to records that, at first glance, are not about library services, but more about security), it is supported by their policy.

Okay, I know I promised a "clear answer".  So let's re-state the question: "if the police were to ask if we saw the teens, are we able to answer or is that considered a violation of patron privacy as it is with patron information and records?"

Based on a fictitious library consulting a fictitious lawyer, here is one possible answer:

To the ABC Library:

You have requested legal advice regarding whether a library may provide a substantive answer in response to law enforcement enquiring about the presence of a patron in the library.

Your concern is that such a disclosure, based on the visual observations of library employees rather than written/recorded records, could still be considered a violation of patron privacy.  You confirmed that at the time of the inquiry, the library had no operational need to release any such information.

I have reviewed the library's policy on patron confidentiality, and based on the below clause, I advise to not release such information unless there is a subpoena or judicial order:

"Consistent with the ALA and NYLA Codes of Ethics, the ABC library considers any record or information that indicates an individual's use of library services and/or facilities to be a library record under CPLR 4509, unless specifically excluded[2] by this policy."

Therefore, I advise not providing such information without a subpoena or judicial order, unless the requestor accurately points out that a specific law requires it.

Thank you for trusting me with this question.

Very truly yours,

A. Hypothetical Lawyer, Esq.

Of course, as the "formula" at the start of this answer points out, the "situation" may vary from time to time.   And CPLR 4509 does leave room for mandatory disclosure "when otherwise required by statute." [3] Those are the times when a library may want to consult a local attorney to obtain quick advice in the moment.

Since this formulaic balancing of facts, ethics, legal obligations, and policy can be difficult to keep in mind,[4] it may be helpful to summarize it to library trustees, employees, and volunteers this way: “A patron's use of the library and our services are confidential.  If anyone asks about a patron using or being at the library, our standard reply is 'Since patron information is confidential, I need to refer you to [the Director].’”[5]

Thanks for a very thought-provoking question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Questions that combine higher education, data access, and "terms of use" enforcement always give me a moment of sad reflection, as I remember Internet pioneer and activist Aaron Schwartz. It was an alleged overuse of an academic database at MIT in 2012 that lead up to his demise.[1]

While the circumstances in the Schwartz tragedy are different from the situation described here, both scenarios--and the care the member has taken in framing this question--illustrate the importance of considering what's at stake when an institution balances contract compliance, digital access, and privacy.

What's "at stake" here? The member's question combines concerns about:

• Confidential use of library resources
• Academic freedom
• Intellectual freedom
• Honoring the exclusion of certain academic and library actions from liability for copyright infringement
• FERPA

Let's do a quick run-down of these critical areas:

In New York, the confidentiality of library services is protected by Civil Practice Law & Rules ("CPLR") section 4509, which states that library records indicative of the identity of a library user may only be accessed with that user's permission, or per a subpoena or court order. CPLR 4509 applies to private libraries within academic institutions as much as it does public libraries or those within school districts. It works hand-in-glove with the American Library Association's and New York Library Association's recitals of patron confidentiality in their Codes of Ethics.

In New York, the commitment of a higher education institution to academic freedom is reflected in various ways. An example is the American Association of University Professors' 1940 "Statement on the Principles of Academic Freedom"[2]: "Teachers are entitled to full freedom in research..."

In New York and throughout the nation, the commitment of libraries to collaborate with others to promote intellectual freedom and access to information is reflected the ALA Library Bill of Rights: "Libraries should cooperate with all persons and groups concerned with resisting abridgment of free expression and free access to ideas."

In New York and throughout the nation, certain academic and library actions that would otherwise violate copyright are excluded from liability for infringement. This exclusion is to ensure there is a clear and well-defined legal safety net for content accessed in furtherance of certain intellectual and academic freedoms.

And throughout the USA, the privacy of education records, including library records, is assured under the Family Education Rights Privacy Act" (FERPA).

Serving as a counterweight to all of these critical factors are an educational institution's obligations under federal law and regulation with regard to alleged copyright infringement, particularly the regulations found in 34 CFR §668. If I were to delve into that and describe all of those obligations here, this answer would be 50 times longer, but a good summary of what compliance in that regard looks like can be found in this sample policy from RIT: https://www.rit.edu/its/rit-response-copyright-infringement.  In short:  since 2008, federal law requires higher education institutions receiving federal financial aid and other federal benefits to be express enforcers and re-enforcers of copyright.[3]

Sitting astride of all of this is whatever notification commitments (and other responses)  a college or university library agreed to when it signed the license agreement with the database provider (I have reviewed many of these types of license agreements, and almost all of them have some form of notification action requirement, which can range from a warning as described by the member, to ensuring the immediate cutoff of access by an offender).  This means that in addition to the ethical, legal, and regulatory factors that have to be balanced in a question like this, we also have to consider obligations that are contractual.[4]

With all of these very important considerations now laid before us, let's review what the member is doing:  1) getting a notification of a possible terms violation from the provider, and then 2) using a firewalled[5] process to identify the user and alert them of the alleged violation, and then 3) assuring the vendor they have addressed the issue.  As asked by the member:  Is this process appropriate in resolving the misuse of a database, or does it violate the user’s/student’s privacy rights?

Here is my short answer: since the method of response described by the member shows there is a big firewall between the vendor and the institution (meaning: the outside party never learns the actual identity of the alleged violator), I believe so.  BUT: the only real way to ensure privacy is protected as it should be is to confirm that the information flowing between the library and the IT Department never goes any further...within the institution.

What do I mean by that? The information should never go to campus safety or security. Unless it is per a very clearly articulated procedure developed for the operational needs of the library, it should never go to the office responsible for student discipline. And it should certainly never go to an employer on campus, a faculty member, or an advisor.[6]

This caution is warranted because, although a library within a higher educational institution is not a separate business entity the way a chartered public library is an entity separate from the town or city that sponsors it, for purposes of an academic library's adherence to privacy ethics and laws, it should be considered a stand-alone entity. Information can flow into it, but information should not flow out, even to other departments, unless the flow serves the operational needs of the library, and verifiably goes no further.

This 'one-way flow" for user-associated academic library records is an easy goal to articulate, but in practice, it can be very difficult to assure. As systems within large and small institutions get more integrated in the interests of security and economy, so too is it more difficult to separate one type of information from another. However, when it comes to privacy and library confidentiality, because of the high stakes involving intellectual freedom, academic freedom, and student privacy, extra care and attention is warranted.

The care of the member in submitting this question and describing the careful process they are using is emblematic of the type of care that should be used at all times when safeguarding user confidentiality and privacy at a higher education academic library.

Thank you very much to the member for submitting such a careful question.

RIP, Aaron Schwartz.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

The State of New York has very strong feelings about collecting cultural assets and information.  So strong, that such collections are governed by a host of laws, regulations, and policy.

Precisely which laws, regulations and policy apply to a collection depends on the type of entity doing the collecting.  Museums, historical societies, archives, and libraries all fall under their different (but overlapping) conditions. And before the law takes the wheel, the formation documents of an entity control what items fall within their mission, and what items don't make the cut.

So, for a simple question like: "Can you review our deed of gift and loan forms?" be ready for this response:

Yes!  We can review your deed of gift and loan forms.  To make sure the review supports your mission, is consistent with your governing documents, and ensures compliance with relevant law and regulation, can you send us:

• Charter or Certificate of Incorporation
• Bylaws
• Collection Management Policy
• Most recent form 990 or CHAR 500
• Insurance Summary (optional, but it helps to know the extent of insurance coverage for both owned and borrowed items)

Now, if your institution needs your forms reviewed, and you can't find these things, don't worry, we can help you find them.  Also be prepared for a quick phone call asking if there are any current disputes involving collection items, and to discuss any specific goals you have for the forms.

When reviewing gift forms, the goal is always to ensure that the contract terms created by the form are consistent with the law and foundation documents that will govern the institution's receipt of the gift.  The makes a form more likely to withstand a challenge from an angry relative, or during an internal dispute.

So, no matter what lawyer reviews your forms, be ready to give them a dossier of documents!

Thanks to the member out there who put up with me while I kept asking questions!
 

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

Short answer

There is no requirement to disclose the location of a remote participant under the past Executive Orders or the current modification.

Long answer

I am grateful for this question since it gives me a chance to revisit an earlier answer ("Ask the Lawyer" #120) and clarify something.

The answer in "120" was based on the Executive Order(s) that temporarily modified the Open Meetings Law, allowing proceedings to be entirely virtual in the interests of safety...IF the proceedings could be seen/heard by the public, AND IF they were later transcribed.

This new law--which expires on January 15, 2022--uses legislation to achieve the same (temporary) modification.

So, if it is duplicative, what do I need to clarify?

As the member's question alludes to, before these modifications, any board member who wanted to participate remotely in an OML-governed meeting (which is any library board or committee meeting) had to disclose the address they were calling in from--because, essentially, that location was considered a "satellite" location of the meeting, where members of the public could attend. 

This long-standing approach led to some interesting scenarios over the years.  If the remote link was in an airport, the meeting was being conducted, partially, in an airport.  Or if the remote link was in a person's living room, the meeting was being conducted, partially, in the living room.  And by law and guidance, any person who wanted to physically attend the meeting at the satellite location had the right to do so...which is why the satellite location had to be included in the meeting notice.

But the modifications we are discussing changed that.

While the current guidance and commentary from the New York Committee on Open Government (the "COOG") does not say anything expressly about home addresses,[1] as I read it, neither the Executive Order nor the current legislative modification good through January 2022, require remote participants to disclose the location they are calling/zooming in from.  Further, it certainly doesn't transform the location they are calling from into a "satellite" meeting location....which means, if I choose to attend from my living room, a member of the public can't, by law, demand entry.

So, if the current guidance is silent, why do I believe remote participants' addresses don't need to be provided under the modified law?  While we can debate the competing virtues of physical v. virtual participation,[2] what is clear to me is that the purpose of the modifications--public safety--would be undone if every remote participant became a satellite location and was required to host the public.  And if the public can't demand entry to a remote location, there is no basis to disclose its address.

In my original reply, I didn't drill this point in hard enough[3].  That is why the "short answer" above states my position plainly, and why I am grateful for this chance to clarify.

Thanks for a helpful question.  May all your meetings be safe and fruitful, no matter where they occur.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Because there are a lot of layers here, let's start with some bedrock fundamentals.

Bedrock #1: All NY-chartered libraries, including association libraries, must abide by the Open Meetings Law (the "OML"), a New York State law which requires certain meetings be accessible in real time to the general public.[1]

Bedrock #2: While all chartered libraries must follow the OML, only public libraries, as quasi-governmental agencies, are subject to its cousin, the Freedom of Information Law ("FOIL").[2]

Bedrock #3: As the members write, the OML has been changed to require the posting of materials to be reviewed at least 24 hours in advance of a meeting.  For libraries, this means that even if the library is not an "agency" subject to FOIL, the documents to be reviewed at the meeting--unless disclosure is barred for an express reason, such as attorney-client privilege[3]--must be posted.

Okay, with three sturdy bedrocks to build on, let's lay the foundation for the answers.

As stated before, the OML was recently changed to require advance posting of materials to be reviewed at a meeting.[4]

According to the Assembly memo that accompanied the bill, here is the basis for the change:

[S]ection 103 of the Open Meetings Law [currently only] requires agencies to make

any documents to be discussed at an upcoming open meeting available to

the public, "to the extent practicable." This vague phrase has created

loopholes and a way for agencies to bypass this requirement. In an anal-

ysis of 41 local governments conducted by the New York Coalition for

Open Government, 15 percent do not post meeting documents.

COVID-19 has made it apparent that there is technology readily available

for agencies to use in an effort to be more transparent.  Meetings are

only taking place virtually and individuals are at an immense disadvan-

tage because there is no in-person opportunity to request a hard copy of

any documents at the meeting. Therefore, it is even more important that

agencies utilize the technology available to post documents online where

the public can effectively access them.

The exact wording adopted to address these concerns, found in Section 103 of the New York Public Officers Law, goes into effect November 18th, and reads:

Agency records available to the public pursuant to article six of this chapter, as well as any proposed resolution, law, rule, regulation, policy or any amendment thereto, that is scheduled to be the subject of discussion by a public body during an open meeting shall be made available, upon request therefor, to the extent practicable at least twenty-four hours prior to the meeting during which the records will be discussed. Copies of such records may be made available for a reasonable fee, determined in the same manner as provided therefor in article six of this chapter. If the agency in which a public body functions maintains a regularly and routinely updated website and utilizes a high speed internet connection, such records shall be posted on the website to the extent practicable at least twenty-four hours prior to the meeting. An agency may, but shall not be required to, expend additional moneys to implement the provisions of this subdivision.

And with that "the Assembly hath spoken," and we can answer the questions.

Question 1: Do libraries that furnish the documents upon request also have to post the documents on their websites?

If a library "maintains a regularly and routinely updated website and utilizes a high speed internet connection" the documents must be "posted on the website to the extent practicable." 

I take this to read "If your library website has an event calendar you maintain, you need to get your meeting documents up on it at least 24 hours before the meeting."

Question 2: Does a library have to post the documents on their website 24 hours in advance, if no one requests them?

If a library "maintains a regularly and routinely updated website and utilizes a high speed internet connection" the documents must be "posted on the website to the extent practicable" even if no one has requested them.

What encompasses agency documents that “will be discussed”? I assume it includes agenda, previous meeting minutes, director’s report, treasurer’s report, proposed annual budget, etc.

Small note: Even before this change, the minutes should already be available, since Section 106 of the OML expressly requires availability within two weeks of the meeting.

Answer for public libraries: Every document that will be reviewed at the meeting.

Answer for association libraries: If you don't want to be a test case regarding the interaction of FOIL and the OML, post every document that will be reviewed at the meeting.   If you do want to be a test case, cite the slightly imperfect writing that describes what is to be disclosed ("Agency records available to the public pursuant to article six of this chapter"), and say that since your library is not an “agency” per Article 6 of the Open Meetings Law, and thus not subject to FOIL (see Bedrock #2), you don't need to provide a darn thing.

I am kidding.  Don't do that.  I am writing the Committee on Open Government to request guidance on this issue, and I am fairly confident they will confirm that the intent is that the entire board packet is required to be posted, even when the subject organization is not subject to FOIL; I will post a follow-up when I get some input.

Question 3: What about a new personnel manual that is enormous, or a board member who introduces items under “new business” but does not submit them ahead of time to add to the agenda?

Large documents should be posted; per the new section of the law, if requested in hard copy, the library can charge a "reasonable fee."

Regarding "new business," if the new business raised is only verbal, there is no problem.  If, however, the "new business" is a letter, article, or proposed policy, the board action should be confined to establishing the next steps to be taken once proper posting can be effected.  And if the "new business" must be handled on an emergency or expedited basis, that can be done via a meeting of the Executive Committee,[5] with any action ratified in a later meeting, with the written content shared in advance as required.

How long does a library have to leave the documents up on their website after the meeting takes place?

I am sure there will be more guidance on this in the future, but for now, I read the law as requiring the posting to be "to the extent practicable," meaning for as long as the content can be posted without causing undue expense or burden on the system.

Will this new law remain in effect if the Gov. does not extend the modification to Open Meetings Law after January 15, 2022?

Unlike the current change to the OML regarding remote attendance (which is currently in effect, and sunsets in January of 2022), this modification of the OML Section 103 goes into effect on November 18th and stays with us until it is struck down by a court (not likely) or changed by the Assembly (not likely, except for slight refinements).

Where we'll see some follow-up and guidance about this new law is from the Committee on Open Government.  The COOG, as they call it, posts notice of its meetings here: https://opengovernment.ny.gov/committee-news.  I'll be sending a question about the scope of document disclosure by association libraries, and if you tune into the next meeting (when it is scheduled), you will likely see me in the WebEx as a mute observer. 

Thanks for a thoughtful and timely array of questions.  Stay tuned.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

When it comes to the legal considerations of employee name tags, there are quite a few "do's" and just as many "don’ts."  I'll set them out below, with the legal rationale behind the guidance.

DO pick a legible font.

Accessibility matters.  Consult an ADA guide and pick a font that is easy to read.

For this reason, employee name-tags should not be hand-written.

DON'T require employees to wear name tags without a "Name Tag Policy".

As we'll see, some of the details of name tag use can get tricky.  A well-thought-out, board-adopted policy is the best way to ensure the policy covers all the required bases and is enforceable.

DO have a good reason to adopt the policy.

A name tag policy should not stand alone; it should be part of an overall approach to patron service.

DON'T adopt a “Name Tag Policy” solely because of the request of one patron.

Of course, a patron request could kick off a board's consideration of adopting such a policy, but again, employee name tags should be part of the overall approach to library operations.

DO memorialize the reason for the policy in the board minutes.

For example: "WHEREAS the board has found that easily identifying library employees by their first name or nickname promotes a positive experience for patrons, visitors, and vendors, and enhances initiatives to promote confidentiality and security...."[1]

DON'T demand that employees put their full name on the name tag.

This has to do with safety and privacy.  Most definitely, a board can determine that name tags may be part of the patron experience, and request that employees wear a badge that includes their name.  However, unless the policy sets out a reason why a full name is needed, full disclosure should not be required.[2]  Further, if an employee wants to use a nickname,[3] to further avoid identification outside of the workplace, that option should be considered.

DO consider that the format for the name tag include an employee's pronouns

This is just a nice thing to do, but is also a good way to document a practice of honoring the identity of employees in a way that is consistent with state and federal civil rights laws.

DON'T pass such a policy without thinking about your union (if there is one)

If there's a union, before you pass such a policy, get some legal input on the contract.  And even if there isn't a union, think about the requirement from the perspective of the employee experience.

DO require volunteers to wear name tags, if employees in similar situations are so required.

This goes back to documenting the reason for the name tag policy.  If the practice is that every employee working in patron-facing areas wears a name tag, patron-facing volunteers should, too.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

[NOTE:  For some initial background on New York's law governing museums and loaned/donated items, see https://www.wnylrc.org/ask-the-lawyer/filter/159]

On its face, NY Education Law 233-aa seems straightforward, but as the member's questions point out, it requires the consideration of a lot of details.

To answer the question while addressing those details, I'm going to use a story to give my answers some focus.

The Story

When I was in third grade,[1] a schoolmate brought her grandfather's shillelagh,[2] a family heirloom from Ireland, into school for "Show & Tell."

Before and after our "Show and Tell," the shillelagh was kept in my classmate's locker.

You probably know where this story is going.  At some point after "Show and Tell," the shillelagh went missing. 

I can still remember my teacher making the announcement, casting a discerning eye at my fellow third-graders, trying to pick out the criminal.[3]

To the best of my knowledge, that family heirloom has never been found.[4]  But because I am the sort of person who is very into both heirlooms and true crime mysteries, every few years, I find myself wondering where it is.[5]

But let's pretend that sometime in 1981, whoever took it that day held onto it for a bit, and then-- realizing they had no need for a hot shillelagh--hastily left it on a museum's doorstep with a note reading: "I thought you could use this, so here you go.  Sincerely, I.M. Purloiner." 

And to make my scenario work, let's further pretend the museum, finding an antique shillelagh to be within the scope of its mission,[6] accessions the item into its collection, and never hears from "I.M.  Purloiner" again.

And with that scenario to work with, let's answer these questions.

How much documentation is required for a donation to have sufficient written proof of legal transfer of ownership?

If a museum has any contemporaneous records showing that an item, when dropped off, was a "donation," unless there are circumstances to the contrary, I am comfortable saying the museum can regard the item as its own property.

In the member's scenario, that record would be a routine practice of recording items as either loans or donations.  In my scenario, there isn't quite enough (nothing shows an intent to transfer the ownership).

Of course, nowadays, there are very precise requirements for ensuring donors are aware of the terms of a gift to a museum.  For example, Education Law 233-aa (3) requires:

Prior to the acquisition of property by gift, a museum shall inform a donor or prospective donor of the provisions of this section and shall provide a donor or prospective donor with a written copy of its mission statement and collections policy, which shall include policies and procedures of the museum related to deaccessioning.

But what about, as the member writes, documentation of items from before the law was in effect?[7]  Again: if a museum can show a customary practice of accepting donations by recording them in a particular way, I believe it can make a compelling case that the title (ownership) of the piece was transferred to the museum at the time of the intake.

I base this conclusion, in part, on the law's definition of a "loan" and a "lender":

The term “loan” means a deposit of property with a museum not accompanied by a transfer to such museum of title to the property.

The term “lender” means a person legally entitled to, or claiming to be legally entitled to, property held by the museum or, if such person is deceased, the legal heirs of such person.

That said, if there is no record of how an item was accepted (as either a donation or loan), the only presumption I can endorse is that the item was a loan.

Which brings us to the member’s next question: In the collections, we have a significant number of donated items which do not appear to have deeds of gift clearly transferring title from the original owner to the museum. ...  In your reading of the Museum Property Law, should we consider such property to be undocumented, and to require similar measures to gain title?

Building on the idea that if there is clear evidence that the property was accepted as a gift--even if not through a "deed of gift" or other typical instrument--I would regard it not as "undocumented" (which means there is no reliable information as to the lender or donor), but as a donation.  On the flip side, if accepted as a loan, I would again not regard it as "undocumented," but rather, as "unclaimed" property, as contemplated by Section 7 of the Education Law 233-aa:

Unless there is a written loan agreement to the contrary, and notwithstanding any other provision of law regarding abandoned or lost property, a museum that has made a good faith and reasonable search for the identity and last known address of the lender from the museum records and other records reasonably available to museum staff may terminate a loan for unclaimed property in its possession in accordance with the provisions of this subdivision. [emphasis added]

Which brings us to the member's next question:  Regarding “unclaimed property”: How much of an effort is considered “good faith” in seeking lenders of very old loans?

There is no magic formula for "good faith" (in this context), but in general, if a museum feels it can show it has used all available resources, without undo time and expense, it should be able to demonstrate it.

The trick to "good faith" is being able to show a meaningful, genuine effort.  Does it mean a museum has to hire a private investigator to establish the identity of a person who left a shillelagh on its porch in 1981? No. But if a known lender with a known address is recently deceased, and a list of heirs can be obtained from the Surrogate’s Court in their county (for free or a nominal copying fee), should that be done? Yes.

This brings us to these final questions:

If we know that a lender is deceased, are we still required to send them certified letters?

If it is known that the lender is deceased, the letter should be addressed to their heir, if possible. 

Are we required to seek out their next of kin, and if so, are we required to continue seeking next of kin until we find a living relative?

It is not the next-of-kin, but the "heir" who should be sought (the terms are not synonymous[8]). 

How does a museum identify a deceased lender’s heir?  That information can "reasonably" be sought in the Surrogate's Court in the county of the lenders' last known residence.  And if the information isn't there, I feel comfortable saying that a documented attempt to locate it there is all that is needed to show "good faith."

Is seeking permission from next of kin actually counterproductive, in that it could open us up to a lawsuit from a non-next-of-kin heir?

As I say, because of how 233-aa defines "lender," it is not the next-of-kin who should be sought, but the "heir."   Of course, doing the right thing is never a guarantee that a museum won't be sued...but if there is a legal action, or threat of one, efforts to find the "heir" will establish a "good faith" attempt to follow the law, which will position a museum to legally defend its actions.

All of which brings me back to my classmate's missing shillelagh.  If the museum in my scenario decided it wasn't comfortable with the manner in which it was acquired, and wanted to firm up its claim to the item (or return it to its owner), that is when a museum can follow the process for "undocumented property" and publish a notice meeting the requirements of 233-aa.

I hope this walk through the details (with a shillelagh), has been helpful.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Welcome to "Back to School 2021"...a year unlike any other!

I have weathered many K-12 "back-to-schools."  For instance, second grade back-to-school, for me, was in 1980.  For my son, it was in 2010.  And for my daughter, it was just a few days before I sat down to write this.

That 1980-to-2021 time span has allowed me to realize two things:

Realization #1: Erasers smell the same in 2021 as they did in 1980; and

Realization #2: Back-to-school 2021 kicked off in a world that has gone through a lot of rapid and (at times) de-stabilizing change.[1]

The good news about realization #2 is that the law--which tends to change much more slowly than the world around it-- is much the same.  So, for this answer, where we can, we'll be linking back to prior "Ask the Lawyer" answers, and where there is something new, we'll add it.

QUESTION 1: Can a teacher use a Spotify account in their classroom?

ANSWER: Not unless the license has changed to allow more than "personal use."  For more on that, see "Using Streaming Services (Hulu, Netflix) in the Classroom - 4/17/2019" at https://www.wnylrc.org/ask-the-lawyer/raqs/79

QUESTION 2: Can a teacher use music with face-to-face instruction?

ANSWER:  Yes, so long as the music is part of the instruction, and the copy of the song was legally obtained.[2]

QUESTION 3: Can a service provider (counselor, therapist, social worker...) use music with students?

ANSWER:  There is no automatic permission or exception to the copyright law that allows a mental health service provider to use recordings, sheet music, or other copyright-protected property for purposes of licensed service.[3]

QUESTION 4: Can music be played during sporting events?

If the recorded or streamed music is protected by copyright, it should only be played with a license.

NOTE: Public schools will want to consult their lawyers about their risks in this regard now that the U.S. Supreme Court has (arguably) struck down the ability to sue "the state" and its subdivisions for copyright infringement.
 

5. Can music be used as part of the morning announcements?
If the music is protected by copyright, it should only be played with a license. 

NOTE: Public schools will want to consult their lawyers about their risks in this regard now that the U.S. Supreme Court has (arguably) struck down the ability to sue "the state" and its subdivisions for copyright infringement.

And with that, I wish you a joyous back-to-school.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

A library needs two documents to address this issue:

1.  Its template contract or "rider"[1] for performers and presenters;[2]and

2.  Its current Safety Plan.

How does the contract/rider come into play?  One of the conditions it should list is a "behavior requirement," requiring that any person performing a service at or for the library "will abide by the library's policies, and the reasonable requests of library staff."[3]

How does the Safety Plan[4]  come into play?  This is the document that likely addresses vaccination, PPE, and other safety requirements for those visiting your library.

Now, see how the two work together: the Safety Plan is a library policy; the "behavior requirement" means visitors must follow it.

When the two documents are assessed together, if it isn't crystal-clear that the library requires proof of vaccination before performance, the Safety Plan or the contract/riders--or both--can be amended to require:

To maximize the safety of in-person events, the ABC library requires all providers of in-person events to provide current proof of vaccination against COVID-19 at least seven days prior to the event.

 The ABC library will consider remote options if a prospective performer or presenter requests such a change as a reasonable accommodation under the ADA due to a disability.

How can this be done so simply?

While there are many nuances that libraries must consider prior to flatly requiring vaccination for all employees,[5] WHEN IT COMES TO CONTRACTORS PROVIDING ONE-TIME OR PERIODIC PERFORMANCES,[6] unless there are grant requirements or other obligations specifically hemming a library in, a library can be more blunt in its requirements.

While they can be a very beloved part of a library's offerings, independent contractors have less rights than employees when it comes to a library imposing the conditions on performance. This is because, whether incorporated, or working "DBA", independent contractors are free to accept and reject the terms of any particular contract--and thus have more leverage and freedom than employees.[7]  And because of that, when it comes to requiring them to provide proof of vaccination, there are a few less legal hoops to jump through than with employees (new, or otherwise).

So, after all that, what were the questions? "What about performers or presenters we hire to come into the library, especially to work with children? Are we allowed to ask/require proof of vaccination status before signing a contract?"

The answer is: with the right policy and contract terms[8] in place: yes.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Underlying all these highly specific questions is one Big Question: Can employers require vaccination? "Ask the Lawyer" addressed the Big Question on December 18, 2020, and that answer is perma-linked at: https://www.wnylrc.org/ask-the-lawyer/raqs/186.  For any reader who is new to this issue, or who needs a refresher, please read #186, because this answer uses that background to jump right into things.

And with that, let's jump right into things...

Question: Can we require new hires at a library to be vaccinated?

Answer: Only if the library's safety plan requires it, AND the job description of the specific position contains essential duties that cannot be performed without risk of transmission .[1]

Question: If so, how should we word this on the job application?

Answer: Here is one way:

"The essential duties of this position and the library's safety protocols require vaccination for COVID, therefore, an up-to-date COVID vaccination status is a requirement of this position."

Question: Are we allowed to ask for proof of vaccination?

Answer: Yes, but if you do, the library should have a written plan to maintain confidentially (this should be part of a Safety Plan).

Question: What if the new hire is not vaccinated because of religious reasons?

Answer: If being vaccinated is a "bona fide" occupational requirement of the position (which is what a library does by confirming that the essential duties of the position and the library's safety protocols require vaccination for COVID), a person who is not vaccinated will not become the new hire--regardless of medical or religious reasons.

As the question points out, this is a high-stakes game.  So, it is critical to work with the library's HR consultant or civil service liaison to update the job description so the front-facing work, or collaborative work, that require vaccination for that particular position is genuine.  If the "essential duties" of the position include numerous activities that could be done remotely, or in solitude, it may be that the job can be modified to accommodate either health or religious needs--both of which must be given maximum deference whenever the job requirements and the resources of the library make it possible.

Question: If the library requires those who are not vaccinated to get COVID tested weekly, does the library have to pay for those tests?

Answer:  I am not comfortable endorsing a Safety Plan or any type of procedure that includes a COVID testing requirement based solely on vaccination status.

Here is why:

The EEOC is currently the go-to agency for guidance on balancing privacy, disability, and employment needs when it comes to COVID.

Current EEOC guidance (posted at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws) as of August 16, 2021, states:

The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take screening steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others. The ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate. Testing administered by employers consistent with current CDC guidance will meet the ADA’s “business necessity” standard. [Emphasis added]

Here's where the COVID daisy-chain begins: the EEOC is basing its notion of "basic necessity" on the guidance from the CDC.

Here is the "current CDC guidance" (posted at https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/testing.html) as of August 16, 2021:

Who should get tested for current infection:

• People who have symptoms of COVID-19.
• Most people who have had close contact (within 6 feet for a total of 15 minutes or more over a 24-hour period) with someone with confirmed COVID-19.

-Fully vaccinated people should be tested 3-5 days following a known exposure to someone with suspected or confirmed COVID-19 and wear a mask in public indoor settings for 14 days or until they receive a negative test result.

-People who have tested positive for COVID-19 within the past 3 months and recovered do not need to get tested following an exposure as long as they do not develop new symptoms.

• Unvaccinated people who have taken part in activities that put them at higher risk for COVID-19 because they cannot physically distance as needed to avoid exposure, such as travel, attending large social or mass gatherings, or being in crowded or poorly-ventilated indoor settings.
• People who have been asked or referred to get tested by their healthcare provider, or state, tribal, local or territorial health department.

Nowhere on this list is "unvaccinated employees who report to work as usual." [2] A dilemma, right?

Not as I see it.

As I see it, while we can all find something to complain about in the lurching, evolving guidance from the alphabet soup of EEOC, NYSDOL, OSHA, NYSDOH, WHO and CDC, this current configuration makes perfect sense.

Why? Because this approach achieves balance.  Within these confines, libraries (along with other employers) are positioned to structure job requirements to be as safe as possible--not just for employees, but for the communities they serve.  The structure and requirements, however, must be "bona fide," meaning that personal safety, privacy, freedom of association, and respect for conscience are positioned to be honored, while ensuring they do not gain primacy to the detriment of public safety as a whole.

For these reasons, I will not answer the question as posed.  However, I will answer:

Question: If the library requires employees who trip a current CDC risk factor (showing symptoms, close contact, etc.) to get COVID tested, does the library have to pay for those tests?

Answer: I have found no requirement that an employer pay for a COVID test that is used as a pre-requisite for returning to work.  Of course, for employees who are sick, or on mandatory quarantine, or have been sent home by their employer for tripping a COVID factor, the protections for paid sick leave[3] that were set up earlier in the pandemic still apply.

And I will add this bonus question:

Question: If the library decides to use routine random COVID testing of all on-site employees as part of a Safety Plan, does the library have to pay for those tests?

Answer:  An employer cannot require an employee to pay for a COVID test,[4] and cannot deduct the cost of such a test from a paycheck, so if the employer sets up random testing as part of a Safety Plan, the employer must pay for it.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Before answering this question, I have one over-arching comment: the member who sent this inquiry was wise to submit the question when they did; it is not the type of question to be handled without the input of a pro.^[1]

Why is that?  This type of situation is, of course, riddled with legal pitfalls.  ADA, FMLA, paid sick leave law, workers' comp law, OSHA, union contract (if relevant), NY Civil Rights law, personal injury law, employee manual compliance...the list of legal considerations is lengthy.

But just as, if not more critical--and often buried in all the legal--is the fact that a place that "fires" a worker after they were injured in the line of duty risks seeming...heartless.  Mean.  Cruel...or at least, unfeeling.

Fortunately, focusing on the human sides of this type of issue (how is the employee doing?  Are they getting everything they need from the library's comp carrier?  Might their doctor clear them for light duty? How has the injury impacted their family? How are co-workers handling the loss of their co-worker's contributions?) will actually build the best framework for taking care of all the details that are "legal."

How can that happen?  With the pro helping them do things like: drafting a leave letter, developing an interim staffing plan, and planning for the employee's return to work, the Board has time to focus on the human factors.

So, how long can a library hold open a job while an employee is out on disability due to a work-related injury?  There are too many factors to give a numerical answer.  This is one where a library, museum, archive, historical society, etc. should seek a professional^[2] to get a custom response--enabling leadership to focus their energies on concern for the employee, the workforce, the community, and the library.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

I am writing this answer on a Friday afternoon, so before I give a formal answer (and I will, this is an important question), please indulge me in a small flight of fancy.

Instead of asking about book covers in a video book talk, let's pretend it's 1978 and you've asked me if you can bring some friends to Studio 54, where entry is based not on four fair use factors[1], but depends on a subjective analysis of fashion, beauty, eccentricity, and fame.[2]

So here we are.  It's Friday night, under the glittering marquee, approaching the doorman...[3] 

Your friend with the feather boa and the spandex?

IN.

Your friends clad totally in cutting-edge Halston?

IN.

Your friend whose art opening was recently on the cover of the Village Voice?

Mmmm... go to the back of the line and mingle, we'll see what we can do in an hour or so.

Your friend who is actually the nicest person on the planet, but is wearing a middy blouse and clogs?

OUT.

You? 

[...I'll let you decide if you have made the cut.[4]]

Flash back to a Friday afternoon in pandemic-fatigued 2021, book covers, and this fair use question.

Fair use is always complex, but adding book covers to the mix ups the ante.

That is because book covers, depending on what they feature, can have many layers of intellectual property protection--not only multiple copyrights (for the art, the cover arrangement, and the book as a whole), but any trademark on the cover and, if the cover features a photo of a real person, that person's image.

Enter my analogy to the door at Studio 54.  Not only does the usual analysis apply (is a person old enough to get in?) but with book covers, the content warrants an extra array of analysis...getting you "in" (to fair use) or "out" (risking infringement).

Which brings us to the member's very insightful sub-question: if you have to be careful about covers, how do the various library management systems ("LMS") out there include them in their catalog entries?

Since there are numerous LMS's, I can't answer for each one, but generally, permission for such a use is conveyed to the LMS by the publisher. Sometimes (if the cover is a very fuzzy copy) they are relying on fair use.

Here is a sign that your LMS has secured permission for the cover (this one is from the Terms and Condition for OverDrive[5]):

Of course, there are numerous LMS's, and each has its own approach.  However, this is the one I have seen most frequently in LMS contracts.

So, with all that said, what are some ways to mitigate the likelihood or limit the seriousness of a legal problem when considering incorporating book covers into a video book talk? I offer the following techniques:

1.  Rather than display a scan or borrowed digital image of the book, have the book held or displayed by the person giving the presentation.

2.  Do not use the cover image for purposes of promoting the video, especially if it is on a monetized site.

3.  Conduct your fair use analysis on a cover-by-cover basis, and retain a copy of the analysis to be able to show you made a good faith determination that the cover needed to be used for the presentation.

4.  If you plan to have the video feature the cover for long periods of time (relative to the presentation) make sure the cover is related to what is being said.  For example: the cover to the graphic novel adaptation of "Parable of the Sower" (found at https://www.hoopladigital.com/title/12473453) is a great contrast to the novel's cover (found at https://www.octaviabutler.com/parableseries); if the speaker's entire talk on your video is a "compare and contrast" of these two images, it could be a fair use to have them up on the screen the entire time.  However, that same defense might not apply if the purpose of the discussion is a broad presentation about the power of speculative fiction.

Of course, you can ditch relying on fair use and ask the publisher for permission...but if your use is genuinely "fair," there is of course no need to ask...just like Bianca Jagger never had to ask permission to enter Studio 54.[6]

I hope this has been helpful, and your videos make it safely past the doorman of Section 107[7] of the Copyright Act.                                                                                                           

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Quite a few laws, regulations, and regulatory authorities will impact the budget transfer policy of a school district public library.  Here are the biggies:

• NY State Constitution
• NY Education Law
• NY General Municipal Law; and
• GAGAS[1]

The trick to this question is that New York's school districts, which often (but not always) act as treasurer for an affiliated school district public library, must follow not only the above-listed laws and standards, but also must follow school district-specific rules for managing budgets.

What do those school district-specific rules say about budget transfers? As can be seen in the below excerpt from the "School Districts' Accounting and Reporting Manual," a school district can only transfer funds into the budget line of a contingent fund.[2]

Other public entities, however, follow different rules...rules that are a bit more liberal about transfers between budgeted lines, since for inter-line transfers, "only" board approval is required...as seen below in the[3] Comptroller's "Accounting and Reporting Manual" for towns, villages, and other local government entities:[4]

SO: does a school district public library in New York have to follow the rules of its sponsoring district? 

Here is what the Comptroller has to say:[5]

Public Libraries — Sponsored by counties, cities, towns, villages or school districts in most circumstances [are included in a local government's accounting] because of the existence of financial accountability as evidenced by funding of operations, approval of and responsibility for issuance and payment of debt and the ownership of real property. While this is the norm, situations do exist where the library is virtually autonomous and could be considered a special purpose government.

...

Final determination must be made at the local level after considering ... the appropriate criteria as they may apply to both governmental and non-governmental units.... [emphasis added]

In other words--while I hate to punt on this question-- IT DEPENDS.  There can be no one answer; the determination must be made at the local level--and by a person professionally qualified to make the determination.

That said, as a professional, I will go out on a limb and say that every Comptroller audit of a school district public library I have ever read emphasized the difference between the library and the district they are affiliated with.[6]  Further, the Comptroller, in those audits, has stated that independent board authority and oversight by the trustees must be exercised, even when the school district functions as treasurer. 

For this reason, I would comfortably suggest the presumption should be that the requirement to transfer only into a contingent fund, per the excerpt first pasted above, applies solely to a school district, and not to a school district's separate public library, even if the school district is the custodian of the funds, unless the two entities are so integrated that the library operates as a "component unit"[7] of the district.

That said, for school district public libraries who must develop policy based on this distinction, the person to answer this question is the accountant finalizing your audits and financial statements, since they are the one with the professional duty here.  That said, once they have determined that answer at the local level, ALL parties (the school district, the library, their accountants, and their lawyers) should be in agreement as to the reason for the decision.

Thank you for a good question, and for this reminder of why I became a lawyer, not an accountant![8]

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

The letters in the "NY HERO Act" stand for "Health and Essential Rights."[1]

What "essential rights" does it protect? 

• Section one of the HERO Act amends the New York Labor Law to create an "airborne infectious disease standard" covering all private employers.  The standard requires many things that will sound familiar: health checks, sanitization practices, and other preventative measure when there is a declared risk of airborne disease.
• Section two of the HERO Act amends the New York Labor Law to create joint employer-employee "workplace health and safety committees" (where there are 10 or more employees), so workers can collaborate and be involved in safety initiatives.

The new laws are activated only when an "infectious disease" is declared by the NY Commissioner of Health.  This means that right now, while the law is in effect, but no disease is designated, there is no need to have an active plan...but entities have to be ready to spring into action.[2]

Which brings us to the question: What types of libraries must comply?

We'll tackle the easy part first: without question, association libraries, which are private education corporations, must comply. 

For non-association libraries ("public" libraries), the language of the Act is much less clear, since the Act specifically exempts "...the state, any political subdivision of the state, a public authority, or any other governmental agency or instrumentality."

That sounds simple, right?  They should be exempt.  After all, libraries are considered, in some contexts, nigh-governmental entities.

But as many know, a public library's status as "governmental" ebbs and flows.

Here are just two recent examples:

Example #1: 2020 brought an interesting development when, after months of anxious curiosity, the NY Forward "powers that be" confirmed that public libraries were always considered to be exempt from the Executive Orders shutting down private businesses (and instead, were to follow the mandates governing local municipalities).  So: a governmental entity.

Example #2: A noteworthy new case[3] from NY's second-highest court has found that for purposes of the Prevailing Wage Act (Section 230 of the NY Labor Law), a public library is NOT "the state, any of its political subdivisions, a public benefit corporation, a public authority or commission or special purpose district board appointed pursuant to law, and a board of education."[4]  In other works:  not a governmental entity.

So, when it comes to this new law, I can't point to any definite authority either way; just because one part of the Labor Law excludes libraries, doesn't mean another does.  And certainly, we have no case law yet.  That said, if I HAD to pick, I would err on the side of caution and say that public libraries, which are education corporations with their own governance structures (just as the Court commented in "Executive Cleaning"), have to comply with the HERO Act.

Since the stakes are high for non-compliance, any public library that decides the HERO Act doesn't apply to them (and that's fine to reach a different conclusion; I am not omniscient, nor do I have a crystal ball) should:

1) Get that opinion, in writing, from an attorney retained to give advice to that library specifically, and considering its unique position under the law;

AND

2) Confirm the library is in compliance with New York Labor Law 27-a, which covers workplace safety in "the state, any political subdivision of the state, a public authority or any other governmental agency or instrumentality thereof."

The bottom line on this: when it comes to occupational safety, a public library can't fall into a hole between the mandates governing public and private entities: it either has to follow the rules of a "governmental instrumentality" employing people as government employees (and giving them all the protections government employees get under the law) OR it is following the rules of a private education corporation (and giving them all the protections private employees get under the law).

Since the HERO Act is really about taking all the protocols the State of New York developed in response to COVID, and ensuring they are on hand and ready for the next pandemic,[5] a library can't go wrong by having "an exposure prevention plan available, upon request, to all employees, employee representatives, collective bargaining representatives, independent contractors, the department of labor, and the department of health."[6]  By making a clear decision about what safety rules apply to your library, and developing a plan to follow them, you can not only comply with the law, but show that the library is working to keep employees safe.

Thank you for an important question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

At first glance, this question seems simple: what are the possible legal risks to a librarian helping a patron fill out a legal document?

But within this question lies another, slightly more complex issue: when does good customer service become an accommodation for a disability?

This "slightly more complex" consideration is brought up by this part of the member's scenario:  "We had a patron come in this past week who said that he couldn't see well...", potentially meaning: the patron could not access the library services (use of the computer and internet) without assistance, because of a disability.

Of course, not every visual limit is a bona fide disability (I have to take off my glasses to read these days, but that does not entitle me, by law, to an accommodation under the ADA).  However, a patron requesting help to access a library service due to "low vision" (meaning that patron cannot view the screen even with corrective lenses), is potentially requesting an accommodation.

This is because "low vision" can be "a physical or mental impairment that substantially limits one or more major life activities," (which is the ADA's definition of a disability).

For patrons with "low vision," an ADA accommodation can take many forms aside from a human-powered solution, including:

• Ensuring computers have increased operating system font size with large-size computer monitors
• Screen magnification software
• Locator dots and/or large print keyboard labels for keyboard navigation
• External computer screen magnifier[1]

What accommodations a library chooses to offer to someone needing an accommodation to access library services will vary based on that library's size, type, served population, and (of course) budget. [2]  For some libraries, the "human solution" will be the only one available...which creates dilemmas like the one shown in the member's question.

Okay, let's press "pause" on the ADA aspect (we'll come back to it) and return to the original, simple question: what are the possible legal risks of a librarian helping a patron fill out a legal document?

The risks, of course, are that if the patron is accused of fraud, identity theft, or any other illegal activity based on the form's contents, it could lead to complications for the library (and thus, potentially, the employee).

Of course, most types of crimes based on fraud, false personation, and identity theft turn on the awareness and intent of the involved parties. Basically--and this is a big paraphrase--so long as a person can show they had no awareness or intent to help with a crime, they will have a defense against such an accusation...especially if they are performing the action as part of a duty in their job description.

But how can a library avoid such accusations against its employees in the first place?  This is where we take the ADA aspect off "pause," and consider how a library's policies can set firm boundaries for good customer service, while also facilitating accommodations for disability.

How is that done? Many libraries already have a version of this approach, but here's my plain-language version of a policy:

Library employees are here to help patrons use library resources, but librarians and library staff may not interpret, provide guidance, or fill in forms for patrons.

Patrons who need assistance filling in a form or completing a document due to uncertainty about the content are welcome to ask librarians for help locating the instructions or contact information for assistance.

Patrons who need assistance filling in a form or completing a document on the library's computer or other resource as an accommodation for a disability, please alert the Director or [insert alternate, accessible means], so the Library may act on the request per the library's ADA policy.

So, to be clear, my answer to the member's overall question is: to avoid doubt, librarians should never help patrons fill out the answers on legal forms if the help is just part of good customer service.[3]   HOWEVER, librarians absolutely can read the content and type substantive answers on a patron's legal forms if the library decides (and documents) that it is providing the assistance as part of a reasonable accommodation for a disability.

When considering employee-powered assistance as a form of accommodation, part of evaluating the request must be consideration of how it can be fulfilled ethically.  For instance, a person providing an ADA accommodation as an ASL Interpreter must follow the Registry of Interpreters' Code of Ethics[4] (or other professional association).  A person providing an ADA accommodation as a "reader" for a person who is blind or has low vision should not offer guidance or commentary on the content--their role is limited to reading, and perhaps typing, based on verbal prompts from the accommodated party.[5]  A person typing because the library's only keyboard is inaccessible to the patron and the library has no dictation software should similarly only type as an accommodation, and not offer comment or guidance. [6]

Some libraries, looking at the range and requirements for certain types of human-powered accommodations, may decide they do not have the staff capacity to provide such resources.  Others will say (and support by well-developed policy): sure, we can do that, here's how.[7]

The important thing, no matter what the decision is, is to keep a record as to why a library employee (or contractor) would assist a patron with filling out and/or submitting a confidential or legal document.  Since the only reason should be as an accommodation, that reason should be documented in either the policy (for instance, if the library has a standard service) or as an ad hoc request.

Thank you for a very compassionate and thoughtful question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This question comes at a very challenging time.[1]

The question is difficult because right now, the World Health Organization is looking at the "Delta Variant" of COVID-19 and telling the world to consider continuing to use masks and social distancing while inside.[2]

New York, of course, after a 6-day scramble, started following the Center for Disease Control's May 13 "surprise" guidelines stating that vaccinated people no longer need to wear masks or social distance indoors.[3]  And as of July 1, 2021, the state announced that almost all COVID-related restrictions were lifted.[4]

Where does this leave us?

Throughout the Pandemic, when asked about how to interpret and follow law, regulations, and Executive Orders governing the state's COVID response, my watchword has been: "Safety first."

After that, I have listed what is required at that point in time, and then referred libraries and cultural institutions to resources about how they can develop a Safety Plan[5] crafted to suit their unique identity (by "unique identity" I mean things like a large library with outdated HVAC and windows that don't open, has different considerations than a small library with assurance of constant fresh air).

With so much uncertainly at this time, my tired playbook is getting tested.  But I'll use it to try and answer each of the member's questions:

Now that Open Meetings Law modifications have been lifted, are we still required to maintain physical distancing for board meetings?

If your (now optional, but if the board keeps it in place, enforceable) Safety Plan still requires physical distancing, then yes.

We have a fifteen member board which makes it difficult to spread our trustees out. I understand that we can ask trustees whether they have been vaccinated: If all are vaccinated, do we have to maintain physical distancing?

If your Safety Plan has opted to continue using the NYS May 19th guidance, and the meeting is not exceeding the occupancy threshold, no, you do not.  HOWEVER, there is nothing to stop the board from deciding that, in the interest of safety and enabling each trustee to take whatever steps they need to feel safe, they are going to allow some trustees to attend from a remote location.[6]

If some of them are not vaccinated, do we required all the trustees to wear masks?

The WHO would (currently[7]) say: yes.

The CDC and the State of NY would (currently[8]) say: no.

For what it's worth, I tend to follow the most cautious reputable source at any given time (so would say: there is ample ground for your Safety Plan to require this, while there is also ample ground for your board to revise the Safety Plan to require only the bare minimum of advised precautions).

Do we provide physical distancing for the ones who are not fully vaccinated?

If that is at all possible, I strongly support that idea.  Being able to show an institution took the time to consider the best way to keep its community safe is good from any angle: mission, legal compliance, and employee/community relations.

I would like to host a staff luncheon (I understand that is now allowable[9]) but some of my staff are not vaccinated. If it is held outside, do we have to maintain physical distancing measures? What about holding the luncheon inside?

It pains me to say it, but sometimes, the law is not the best guide as to what to do!  Legally, if your library is still using the May 19th NYS Guidance, your Safety Plan can allow for this to happen, if you follow the required prescriptions.

However, it makes sense to me to "read the room" and see if such a luncheon would be a team-building exercise, or (because some employees might not feel at ease eating in close proximity to others) risk bad feelings and alienation.  If everyone cannot attend with the same level of comfort, it might be better to come up with an alternate bonding exercise.[10]

Conclusion

I truly wish I could offer more definite guidance.  The truth is, libraries--even with the return to the strict requirements of the Open Meetings Law--have many options for how to proceed.  So as tired as it may sound, put "safety first," and all things will follow from there.

Coda

Since the Powers That Be out there move quickly, here are some snapshots of the current guidance I am referencing in this answer.

Snapshot of the current WHO Guidance:

Snapshot of NY's July 1 announcement:

Snapshot of New York's May 19th Guidance (now largely optional):

Snapshot of current (June 10) OSHA guidance:

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

First question: Yes...with the expiration of the Executive Orders on June 24th, including the Order modifying the Open Meetings law,[1] things are "back to normal."

Or, as the Committee on Open Government, the authority on the State's Open Meetings Law (OML), put it:

So, does this mean "trustees who still want/need to attend remotely from home must disclose their address in the meeting notice?"

Various case law and commentary about the OML has confirmed that when a public body needs to meet via teleconference, the public must be able to attend from any remote location "calling in" to the meeting, and that location should be part of the meeting notice.[2]

Or, as the COOG put it in Advisory Opinion 5535 in 2018:

"So long as the public is permitted to attend at any location at which a member participates and can observe the members wherever they may be, I believe that the members may participate and be counted for purposes of attaining a quorum and for voting, and that a meeting may validly be held." [emphasis added]

For large public bodies such as the Regents, the New York Power Authority, and other entities that must hold publicly accessible meetings, and whose board members may reside in far-flung areas of the state, the use of publicly accessible call-in sites comes with an IT team and a budget.

For a public library, whose members generally reside within that library's area of service, this "back to normal" pretty much means that you're back to meetings in person.

Of course, under the Not-for-Profit Corporation law (which, along with the Education Law, governs the conduct of library meetings), a library board of trustees is allowed to conduct meetings telephonically.[3]  When coupled with the requirements of the OML, however, that latitude is severely reigned in--since whatever space is used for the remote call-in must be accessible to the public, and included in the notice.

For this reason, unless a library trustee is very comfortable inviting the public into their home, I advise against using the "dial in from home" option.[4]

NOTE:  This answer does not consider if a trustee needs to attend remotely due to it being an accommodation under the ADA.  That is a separate and critical question; for now, I'll simply say that adherence to the OML should not rule out consideration of ADA issues.

The transparency created by Education Law 260-a's requirement that public libraries abide by the Open Meetings Law is laudable--but is also based on older notions of technology.  Now that the State of New York has lived under different rules for over a year, we might see some changes in legislation.

But for now, we're "back to normal."

I hope this is helpful.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This submission is a "fair use”^[1] question coming at us from a private college, so before we delve into a reply, I have to emphasize that the specific analysis in this case is limited to that type of entity (a private, accredited school).

Since it can get boring "emphasizing" disclaimers in prose form, I will emphasize it in verse:

          If ye a public library be

          This analysis is not for ye

          If a SUNY or public school

          Do not swim in this legal pool

Okay.  With that out of the way (and for those of you not put off by either the disclaimer, nor the crude verse), here is my answer:

Riffing on, parodying, and building on popular songs can be an effective way to convey a unifying or powerful message to a group.  The use of a known work of art can build on shared familiarity, while modifying it with a unique twist can create a unique and unifying experience. 

The technique described by the member is a very popular approach for higher education institutions, and for unrecorded performances/parodies/riffs that are done live on campus, the school's ASCAP/BMI may even apply (meaning, the site of the performance has permission).

Of course, this is 2021, and that means, it doesn't happen if it isn't on video (or in a picture).  And since we are still in the midst of a pandemic (although things are looking a tad brighter, here in May of 2021), having a video that is an experience customized, created and controlled by the school is a desirable way to build remote cohesion.

When considering the use of copyright-protected content without permission, there are two factors a private institution must consider:

1. Risk management

2. Copyright infringement

"Risk management" is not about the actual legality of one's actions, but the risk that one's actions will be observed and perceived as illegal.

In this case, the additional circumstances the member lists here (not using YouTube to post the final product) enables "risk management" in two ways: a) the resulting video will not be "purged" from YouTube due to a copyright "red flag" (which can happen even if there is a fair use); and b) by hosting it on a less popular server, it is less likely to be seen by services and bots that are "out there"^[2] policing copyright laws.

But of course, an educational institution doesn't want to get away with infringement, it wants to not commit it.  And that is the essence of the member's question: is creation of this derivative work^[3] a "fair use"?

In their question, the member has walked us through some of the "fair use" factors. The member identifies as an educational institution. The member states that the use of the work will be "transformative." The institution will use all of the audio, and be evocative of but different from the video.  And, although it is not specifically mentioned as such, the described use of the resulting derivative work will (clearly) not be a replacement in the market for the original.

What is missing from the submission is the consideration: why this particular work?  In order to justify a fair use-especially of an entire work (the audio), the use must not only be transformative, but there must be a reason why that particular work is chosen, and the message sent by the "transformed" work must relate to that reason.

In other words, you don't select the underlying work to re-transmit it at face value; you select the works to say something new, that at least in part, relates back to the riffed/parodied work.

The best example I have seen of this lately is a complete, unaltered use of the "Avengers, assemble," scene from the "Endgame."  The clip is exactly as it is in the movie, with no changes to audio or video, except the author puts captions near the various super-heroes as they show up, giving the characters new names, and drawing an analogy to how they saw the protests of 2020 developing. 

The end result of this modified "Avengers, assemble" clip is not only highly transformative--the clip is no longer in any way about the original superheroes--but the author uses the identities of the originals to make comments about both those iconic comic book figures, and the categorical names he ascribed to them.  It's such a good example, it could be used to teach "fair use" in a law school class (you can see it here, or just search "endgame protestors 2020 avengers" and it'll pop right up).

With regard to this use of audio and video, it is this question--why this particular work was selected--that is the missing piece of the puzzle.  So long as that piece fits in, there is a good claim for fair use.

If it is decided that there is a good reason to select the original work, the other thing to be cautious about is how the end result (the new video with the unmodified audio) is used.  If it is used only as described and is built into a structured discussion about equity and inclusion--especially if the lyrics and images are used as focal points in the discussion-there is a strong case that this is an academic, non-commercial use. 

However, we have to remember that at the end of the day, a college is a place where students pay to be.  If the video bleeds into recruitment materials, or is not coupled with the education/discussion, the more likely the use could be found to be commercial. 

So: the more "academic" the end result (and its context) is, and the more the initiative functions as both a comment on the source material, and its own, stand-alone message, the better.  Since fair use is not simply an additive analysis (it's not just one factor vs. another, but rather, how the factors resolve and then inter-relate to each other), every aspect of this is critical.

Within those parameters, and if care is taken so the video is only used in the educational context (not simply sending a link to it out in a newsletter, without the educational content and context), there is a strong case to make that the new video, inspired by the song’s current video and using that unmodified song, is not a copyright infringement. 

I am sorry I could not be more definitive...answers like this are why very often, people just ask for permission!^[4]

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Behold, the humble skateboarder: wheels spinning, scabby knees, and (if they have gotten over the fact that even when worn by Tony Hawk, it looks dorky) brain carefully protected by helmet, ready for action.  Never has a humble sport posed more of a challenge to local governments, park designers, architects, and urban planners; lay down a relatively smooth surface, and there they are, ready to challenge both gravity and the rules governing property.

As a lawyer who studies^[1] how the law impacts what people do--and how we do it--I find skateboarding fascinating.^[2]  Since at least the late 80's,^[3] in town meeting after town meeting, legal case after legal case,^[4] site design after site design, public authorities and property owners have attempted to control when and where people can skate (and bike, and rollerblade, and hang out while watching others do those things).

That we as a society often fail at such prohibitions and dissuasions is shown by the magnitude of letters-to-the-editor and news reporting regarding parking lot/ramp/sidewalk incident and injury.^[5]  It has also spawned an array of dangerous and off-putting site design, such as metal rivets on walkways and spikes on hardscaping.^[6]

Of course, this question is not about skateboards, but rather, about signage effective enough to reduce risky activity and to avoid liability while keeping library premises welcoming to everybody.^[7]

For any library, museum, or other public cultural institution wrestling with this issue, this poses a conundrum.  The mission of your institution is to be accessible, inclusive, and to serve your community.  Yet at the same time, the promotion of a safe parking lot and grounds during open hours is critical...while after-hours promotion of safety is just as important (especially if you offer 24-hour Wi-Fi that is accessible in the parking lot and grounds). 

How can an institution achieve this balance?

For an institution confronted by this issue, there is a five-step process that must be conducted:

STEP ONE: Confirm who legally owns and/or controls the parking lot and grounds.^[8]  Does your library own the lot, or is it rented and subject to the terms of a lease?  What you learn during this step will show who has to solve this issue (with a landlord, collaboration will be required).

STEP TWO:  What insurance covers the lot, and what types of incidents are covered?  This step will provide insight into how your institution is set up to manage the risks you've identified.

STEP THREE:  What is the purpose of the parking lot and grounds?  What functions do those resources serve?  Hopefully, the uses are already limited to only things that serve the mission and plan of service of the library.  However, in the case of a lease or shared premises, that might not be the case.

STEP FOUR:  Confirm and harmonize everything from the first three steps. 

This fourth step sounds simple, but it can take many forms. 

For instance:

NOTE: For these reasons (and more), whenever, possible, "Step Four" should be done with a lawyer.

STEP FIVE: Only after completing Steps "One" through "FOUR" should a library board approve a signage plan.

Why these steps?  Because the details they draw out will help your library determine the final text of the signage, whittling it down from many permutations.  For instance:

In addition to helping your library check all the boxes (ownership, risk management, mission, messaging), I advise this approach because it will position your library to give your signage some personality...something that projects the library’s values and mission out into the community.

For instance, there is nothing wrong, after your property/purpose/insurance analysis, with posting a friendly sign like this:

"Our parking lot is for the safety and convenience of

our Library's diverse and wonderful community.

Please limit your use of our lot to parking your bike or car

while using the services of the library."

Or, if the "personality" of your library is a bit less celebratory, and there has been collaboration with local law enforcement on the issue, and it has been determined that it is safest to employ some forceful messaging, the signage can say:

"Parking lot use limited to parking for

library patrons, employees, and vendors.

POLICE ENFORCED."^[11]

Which brings me to the member's actual question:

"Would something more specific like [listing barred activities] be a benefit or would it be worse because if they hurt themselves doing an activity other than those listed they can say they were in their right?"

As you can see, I do not recommend barring a list of activities--partly for the reason in the question, but more fundamentally, because a list of “forbidden” activities only invites quibbling during enforcement (see footnote 9), which creates a needless headache. 

In my experience, those who actually have to enforce a policy (a director, a security officer, a police officer, a municipal employee), should be meaningfully consulted during its development, and are better served by a final product that positions them to quote a broad definition of purpose, together with a bar on unrelated activity, such as:

"This parking lot is for parking only.

No recreational use allowed at any time."

And finally, let's talk about that all-important STEP SIX: Dealing with the Human Factor.

We all know this: an institution can install signage six feet high, in flaming letters, and if someone wants to trespass on it after hours, that signage will not stop them.

If that is true, what is the purpose of the signage?

The purpose of the signage is 1) to promote safety; 2) to reinforce mission; and 3) to be able to show that, if injury occurs, the library in no way encouraged, condoned, or sanctioned the activity that caused it (and in fact, forbid it).

Now, while that is important, there is one other thing I must get out there while we're talking about limiting premises liability: just as critical as clear, enforceable signage is ensuring that the library is not maintaining a hazardous condition.

Why?  If the injury a trespasser experiences on property is related to a known defective condition (a pothole, for instance, or a heaved sidewalk) the owner/controller of the parking lot could still face liability.  To truly promote safety and guard against liability, an owner who invites the public onto their land must be able to show it was not "on notice" about the defect, or that if it was, it had taken adequate steps to protect the public from the hazard (surrounding the pothole by cones, or getting it temporarily filled with cold patch, for instance).

This is why a vigorous facility maintenance plan and deferred maintenance/contingency repair budget is just as--if not more--critical as proper parking lot signage.

In closing, I have to say: writing effective property signage is a tricky thing.^[12]   Since there is no perfect way to do it, I advise aiming for something that clearly limits the use of the restricted property to its core function (in this case, parking), while also reinforcing the identity of the library as a community resource.  Here is a model to consider (after your library follows all the steps):

"To promote a safe and welcoming environment,

this parking lot is for parking and library-approved events only.

All other uses must be approved in writing by the library.

To inquire about using our lot for a community event, call ###-###-####."

...with shorter, smaller, punchier signs at key areas to reinforce the core message:

"No playing in our parking lot at any time.

Safety first!"

I wish all libraries reading this a reduced-risk, injury-free parking lot.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Before I answer, I would like to thank this unnamed trustee for bringing forward this important issue.  Dealing with personal legal matters is rarely easy; remembering to factor in consideration of one's volunteer obligations at the same time is impressive.

On its surface, this question is a fairly simple exercise:^[1] does the status of a library trustee as a plaintiff against the district supporting the library create a "conflict of interest" that would violate the library's bylaws, ethics, or the Not-for-Profit Corporation Law ("NFPCL")?

To address that question, one must first understand what is meant by a "conflict of interest."

The concept “conflict of interest” sounds simple, but often quickly gets, as they say these days, “complicated.”

Why is that?  For a library,^[2]  the concept of a "conflict of interest" could consist of layered elements like the petals of one, single (but complex) rose...or it could be a complex, multi-variety bouquet.

What can comprise this bouquet?

Let's start with the rose.

Section 715-a of the NFPCL requires every charitable corporation in New York (a category that includes most libraries), to adopt and enforce a policy "to ensure that its directors, officers and key persons act in the corporation's best interest and comply with applicable legal requirements, including but not limited to the requirements set forth in section seven hundred fifteen of [the NFPCL]."

Let's peel back the petals on this first thorny flower.  In one sentence, 715-a lists a broad expectation (acting in "the corporation's best interest"), a broad mandate ("comply with legal requirements"), and one very specific law to follow (NPFCL 715, which bars "related party transactions").^[3]

Let's take that last petal first.  What is a "related party transaction?"

According to the NFPCL's "Definitions" section, a "related party transaction" means "any transaction, agreement or any other arrangement in which a related party^[4] has a financial interest and in which the corporation or any affiliate of the corporation^[5] is a participant..."

Based on the information provided, the trustee submitting the question is not in a "related party transaction".  The suit is not against the library, and in this scenario, the district who will be named in the suit is not an "affiliate" of the library.  Since the district is required to put the tax vote on the ballot (the school board has no control over this; it has to put the ballot up as proposed by the library board), the act of using the district to float the vote to the public does not create a relationship that could serve as the basis of a conflict.

Let's take the middle petal: "legal requirements?"  Is there any "legal requirement" that a trustee not bring an unrelated legal action against a school district who facilitates a library budget vote?  No.^[6]

And finally, that first, most fraught petal: "the corporation's best interest?" --We're going to leave that for last.

What other “blooms” could join, and affect, this "conflict of interest" bouquet?

• The library' bylaws
• The library's customized "Conflict of Interest" policy^[7]
• An association library's trustee oath of office^[8]
• A grant or other contractual obligation that creates a temporary definition of a conflict
• The library's strategic plan, or other planning document that would create a conflict as defined by law, bylaw, or policy.^[9]

Fortunately, no matter how many blossoms in the "conflict of interest" bouquet, the law requires that when the possibility of a conflict arises, it is the board--not the individual trustee--who must assess it.

The NFPCL does that by requiring a board to pass a conflict of interest policy that:

 ...include[s], at a minimum, the following provisions:

  (1) a definition of the circumstances that constitute a conflict of interest;

  (2) procedures for disclosing a conflict of interest or possible conflict of interest to the board or to a committee of the board, and procedures for the board or committee to determine whether a conflict exists;

  (3) a requirement that the person with the conflict of interest not be present at or participate in board or committee deliberation or vote on the matter giving rise to such conflict, provided that nothing in this section shall prohibit the board or a committee from requesting that the person with the conflict of interest present information as background or answer questions at a committee or board meeting prior to the commencement of deliberations or voting relating thereto;

  (4) a prohibition against any attempt by the person with the conflict to influence improperly the deliberation or voting on the matter giving rise to such conflict;

  (5) a requirement that the existence and resolution of the conflict be documented in the corporation's records, including in the minutes of any meeting at which the conflict was discussed or voted upon....
  

So, at the end of the day, no matter how large the "conflict of Interest" bouquet, it is the board, as a whole, who has to sniff out a problem.^[10]

In this case, the rub is in that first petal: the requirement that a trustee always act "in the corporation's best interest."

At the surface, there is no conflict whatsoever in this scenario: the school district is not a partner or contractor with the library, and the school board has no discretion about whether or not to put the library's budget on the ballot (they must put it exactly as the library board requests it).^[11] Therefore, even if the contemplated lawsuit by the trustee is not taken kindly by the school district's board, there can be no direct negative impact.

Now, however, for a pragmatic answer: in a world where everything is political, and library budgets all the more so, could an adversarial relationship between an individual library trustee and a school district board be in something other than "in the best interest" of the library?

That consideration--and its answer--is not a legal issue.  In this scenario, there is nothing that violates the law, and I have never seen an oath of office, nor a bylaws provision, that would bar trustee service under such circumstances.  Further, as discussed above, even if the school board takes umbrage, they would be powerless to block the requested ballot item.

However, there is a "soft" consideration here that goes beyond the law.  I categorize these types of concerns not as "legal" issues, but that dreaded concept: "diplomacy."

When it comes to "diplomacy"...could members of a community, including an individual school board member in their individual capacity, decide to take a dim view of a library trustee who is suing their district, and try to punish the library?  They shouldn't, but as individuals, speaking just for themselves, they could...they absolutely could.  And even though their negative actions couldn't block the budget vote, it could influence a vote in non-official ways.

That said, the possibility of such personal vengeance in no way creates a legal conflict of interest.  So, for the reasons set forth above, a board doing an assessment of this situation--unless their policy specifically includes a unique definition or example that bars trustees sowing bad PR, even incidentally--would likely not determine that it constitutes a forbidden conflict.

Of course, a trustee may decide that they have enough on their plate, just being a plaintiff in a stressful lawsuit, and resign to avoid the (real or possible) stress of the situation.  Or the board and trustee may engage in some practical "risk management" and mutually agree that, given a high likelihood it could impact the board-to-board relationship, it is best if the trustee steps down for a time.  But such an option would not be required by law and would be based on pragmatism...and it could only be effected with the consent of the trustee.

And THAT is my answer to this very important question. 

I wish the trustee who posed it both 1) a thoughtful and supportive library board, and 2) a school board with the ability to maturely and completely compartmentalize legal issues from diplomatic ones.

Thank you.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

[DISCLAIMER: This answer presumes there is no collective bargaining agreement or landlord/municipal host terms that impact the library's flexibility while revising their Safety Plan.]

Okay, with that disclaimer out of the way, here are my "short answers" to these excellent questions:

"[F]or those in shared offices, how do we handle the vaccinated/not vaccinated issue?"

Short answer:  Revise your library's current Safety Plan to specify how it has adopted the 5/19 NY Forward Guidelines (for advice on how to do that, please see my "Long Answer," below).

"Do we go with the honor system and tell those in shared offices that if they are vaccinated, they may go maskless?"  

Short answer:  I advise requiring proof (for the legal/operational rationale behind this opinion, please see my "Long Answer," below).

"I've heard that some restaurants are allowing their servers to go maskless if they show proof of their vaccination to their employer.  Would we be allowed to do something like that?"

Short answer:  Yes (for more on that, please see my "Long Answer", below!).

Long Answer

This question comes at a good time, since on June 10, 2021, the U.S. Occupational Safety & Hazard Administration ("OSHA") updated its guidance for employers on protecting workers from COVID-19.^[1]  This new "6/10 OSHA Guidance" speaks to questions like these. 

But first, a quick recap. 

When the CDC came out with their "surprise" interim guidance for fully vaccinated people on May 13th, 2021 (the "5/13 CDC Guidance"), it took New York six days to incorporate it (into the "5/19 NY Guidance").

OSHA, on the other hand, took a bit more than six days.^[2]  But by June 10th, here's what they had to say:

CDC's Interim Public Health Recommendations for Fully Vaccinated People explain that under most circumstances, fully vaccinated people need not take all the precautions that unvaccinated people should take. For example, CDC advises that most fully vaccinated people can resume activities without wearing masks or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidance.

And from there, OSHA takes it granular.^[3]

The 6/10 OSHA Guidance sets out an array of factors for employers and workers to not just consider in isolation, but to think about as a continuum of risk assessment and safety measures.  The factors they list include consideration of vaccination status, and shared office space.

Because it is so critical that employers get this right, I am putting this "6/10 OSHA Guidance"^[4] below.  Now that we have this resource, I strongly advise employers to refer to it when updating their Safety Plan to include the 5/19 NY Guidance.

And now, for this library's very specific set of questions about non-public, shared office space, here is the rest of my "long answer."

As you can see in OSHA's listing, the consideration of shared office space isn't simply one of vaccination and proximity.  It also involves the consideration of things such as ventilation, worker education, and individual worker vulnerabilities.

Because of this, there is no "one size fits all" answer to this library's question.  Rather, the library should review the non-public, shared workspace against the OSHA criteria, and then craft a customized plan...recognizing that the protocol for areas with up-to-date HVAC systems will be different from a work area near the stacks where there might be very little fresh air. 

This variability is the key consideration of shared non-public workspace.  Your library's safety measures may be different when the weather is cold and workers can't open a window.  Your library's Safety Plan measures may be limited if the workspace is near a rare book collection or other assets requiring precise climate control.  And on top of that (literally, as an add-on after the fact) your library will need to consider the impact that a Safety Plan's working conditions can have on individuals with disclosed, pre-existing conditions (such as allergies, heightened vulnerability to COVID, or a health condition impeding vaccination).^[5]

Within all this variability (which is a LOT for any employer to handle, to say nothing of a library that is also focusing most of its energy on meeting the needs of the public), I advise requesting proof of vaccination for two reasons.  First, it positions an employer to be more confident in their adherence to the plan they develop.  Second, it positions employees to be confident that they are in a position to advocate for their own health.

Now, on the flip side, the employee relations challenge of requiring workers to provide vaccination status can be onerous.  Some people are just not comfortable revealing that type of information, and I totally get it.  BUT the EEOC and the New York State Division of Human Rights have both determined that an employer requesting proof of vaccination is not the same as an employer demanding disclosure of confidential medical information.^[6]  Barring a union contract or other term forbidding the demanding proof of vaccination, employers should be confident they can require it.

That confidence can, in turn, transfer to the employees who are certain that their unmasked and nearby co-workers are vaccinated.  In my experience, nothing can erode trust like an honor system where someone is suspected of being dishonorable.   Further, that suspicion can turn into full-on blame if a worst-case scenario emerges and someone does get sick.

And while the current CDC and NY Forward guidance mean an employer won't likely be successfully sued for using the honor system as opposed to requiring proof, I wouldn't put it past one of my fellow attorneys to try.^[7]  This is especially true if your library's Safety Plan or past planning has identified certain front-facing work or other tasks as "higher" risk, meaning there is an acknowledgement on the record that some work may bring increased exposure.

Okay, to sum up: you don't have to, but it's worth considering requiring proof of vaccination.   But most critically, whatever your library does, if you update your Safety Plan, factor in the new 6/10 OSHA Guidance.

Since the combination of options is extensive (New guidance? Old? Require vaccinations? Proof?) I have laid out a chart below.  Below that are some of the high points of the 6/10 OSHA Guidance, which every employer should read.

I hope this reply makes up for in helpfulness what it poses in complexity.  I wish you calm and careful planning as your library moves into this next phase.

OSHA

Except for workplace settings covered by OSHA's ETS and mask requirements for public transportation, most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated. Employers should still take steps to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces. ²

Employers should engage with workers and their representatives to determine how to implement multi-layered interventions to protect unvaccinated or otherwise at-risk workers and mitigate the spread of COVID-19, including:

1. Grant paid time off for employees to get vaccinated. The Department of Labor and OSHA, as well as other federal agencies, are working diligently to ensure access to COVID-19 vaccinations. CDC provides information on the benefits and safety of vaccinations. Businesses with fewer than 500 employees may be eligible for tax credits under the American Rescue Plan if they provide paid time off for employees who decide to receive the vaccine and to recover from any potential side effects from the vaccine.
2. Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-CoV-2, and all workers with COVID-19 symptoms to stay home from work to prevent or reduce the risk of transmission of the virus that causes COVID-19. Ensure that absence policies are non-punitive. Eliminate or revise policies that encourage workers to come to work sick or when unvaccinated workers have been exposed to COVID-19. Businesses with fewer than 500 employees may be eligible for refundable tax credits under the American Rescue Plan if they provide paid time off for sick and family leave to their employees due to COVID-19 related reasons. The ARP tax credits are available to eligible employers that pay sick and family leave for qualified leave from April 1, 2021, through September 30, 2021. More information is available from the IRS.
3. Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas. A key way to protect unvaccinated or otherwise at-risk workers is to physically distance them from other unvaccinated or otherwise at-risk people (workers or customers) – generally at least 6 feet of distance is recommended, although this is not a guarantee of safety, especially in enclosed or poorly ventilated spaces.

Employers could also limit the number of unvaccinated or otherwise at-risk workers in one place at any given time, for example by implementing flexible worksites (e.g., telework); implementing flexible work hours (e.g., rotate or stagger shifts to limit the number of such workers in the workplace at the same time); delivering services remotely (e.g., phone, video, or web); or implementing flexible meeting and travel options, all for such workers.

At fixed workstations where unvaccinated or otherwise at-risk workers are not able to remain at least 6 feet away from other people, transparent shields or other solid barriers (e.g., fire resistant plastic sheeting or flexible strip curtains) can separate these workers from other people. Barriers should block face-to-face pathways between individuals in order to prevent direct transmission of respiratory droplets, and any openings should be placed at the bottom and made as small as possible. The posture (sitting or standing) of users and the safety of the work environment should be considered when designing and installing barriers, as should the need for enhanced ventilation.

4. Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE. Such workers should wear a face covering that covers the nose and mouth to contain the wearer's respiratory droplets and help protect others and potentially themselves. Face coverings should be made of at least two layers of a tightly woven breathable fabric, such as cotton, and should not have exhalation valves or vents. They should fit snugly over the nose, mouth, and chin with no large gaps on the outside of the face. CDC provides general guidance on masks.

Employers should provide face coverings to unvaccinated and otherwise at-risk workers at no cost. Under federal anti-discrimination laws, employers may need to provide reasonable accommodation for any workers who are unable to wear or have difficulty wearing certain types of face coverings due to a disability or who need a religious accommodation under Title VII. In workplaces with employees who are deaf or hard of hearing, employers should consider acquiring masks with clear coverings over the mouth for unvaccinated and otherwise at-risk workers to facilitate lip-reading.

Unless otherwise provided by federal, state, or local requirements, unvaccinated workers who are outdoors may opt not to wear face coverings unless they are at-risk, for example, if they are immunocompromised. Regardless, all workers should be supported in continuing face covering use if they choose, especially in order to safely work closely with other people.

When an employer determines that PPE is necessary to protect unvaccinated and otherwise at-risk workers, the employer must provide PPE in accordance with relevant mandatory OSHA standards and should consider providing PPE in accordance with other industry-specific guidance. Respirators, if necessary, must be provided and used in compliance with 29 CFR 1910.134 (e.g., medical determination, fit testing, training on its correct use), including certain provisions for voluntary use when workers supply their own respirators, and other PPE must be provided and used in accordance with the applicable standards in 29 CFR 1910, Subpart I (e.g., 1910.132 and 133). There are times when PPE is not called for by OSHA standards or other industry-specific guidance, but some workers may have a legal right to PPE as a reasonable accommodation under the ADA. Employers are encouraged to proactively inform employees who have a legal right to PPE as a reasonable accommodation for their disability about how to make such a request. Other workers may want to use PPE if they are still concerned about their personal safety (e.g., if a family member is at higher-risk for severe illness, they may want to wear a face shield in addition to a face covering as an added layer of protection). Encourage and support voluntary use of PPE in these circumstances and ensure the equipment is adequate to protect the worker.

For operations where the face covering can become wet and soiled, provide unvaccinated and otherwise at-risk workers with replacements daily or more frequently, as needed. Face shields may be provided for use with face coverings to protect them from getting wet and soiled, but they do not provide protection by themselves. See CDC's Guide to Masks.

Employers with workers in a setting where face coverings may increase the risk of heat-related illness indoors or outdoors or cause safety concerns due to introduction of a hazard (for instance, straps getting caught in machinery) may wish to consult with an occupational safety and health professional to help determine the appropriate face covering/respirator use for their setting.

5. Educate and train workers on your COVID-19 policies and procedures using accessible formats and in language they understand. Train managers on how to implement COVID-19 policies. Communicate supportive workplace policies clearly, frequently, and via multiple methods to promote a safe and healthy workplace. Communications should be in plain language that unvaccinated and otherwise at-risk workers understand (including non-English languages, and American Sign Language or other accessible communication methods, if applicable) and in a manner accessible to individuals with disabilities. Training should be directed at employees, contractors, and any other individuals on site, as appropriate, and should include:
   1. Basic facts about COVID-19, including how it is spread and the importance of physical distancing (including remote work), ventilation, vaccination, use of face coverings, and hand hygiene.
   2. Workplace policies and procedures implemented to protect workers from COVID-19 hazards.

For basic facts, see About COVID-19 and What Workers Need to Know About COVID-19, above and see more on vaccinations, improving ventilation, physical distancing (including remote work), PPE, and face coverings, respectively, elsewhere in this document. Some means of tracking which workers have received this information, and when, could be utilized, by the employer, as appropriate.

In addition, ensure that workers understand their rights to a safe and healthful work environment, whom to contact with questions or concerns about workplace safety and health, and their right to raise workplace safety and health concerns free from retaliation. This information should also be provided in a language that workers understand. (See Implementing Protections from Retaliation, below.) Ensure supervisors are familiar with workplace flexibilities and other human resources policies and procedures.

6. Suggest that unvaccinated customers, visitors, or guests wear face coverings, especially in public-facing workplaces such as retail establishments, if there are unvaccinated or otherwise at-risk workers in the workplace who are likely to interact with these customers, visitors, or guests. This could include posting a notice or otherwise suggesting unvaccinated people wear face coverings, even if no longer required by your jurisdiction. Individuals who are under the age of 2 or are actively consuming food or beverages on site need not wear face coverings.
7. Maintain Ventilation Systems. The virus that causes COVID-19 spreads between people more readily indoors than outdoors. Improving ventilation is a key engineering control that can be used as part of a layered strategy to reduce the concentration of viral particles in indoor air and the risk of virus transmission to unvaccinated workers in particular. Some measures to improve ventilation are discussed in CDC's Ventilation in Buildings and in the OSHA Alert: COVID-19 Guidance on Ventilation in the Workplace. These recommendations are based on ASHRAE Guidance for Building Operations During the COVID-19 Pandemic. Adequate ventilation will protect all people in a closed space. Key measures include ensuring the HVAC system(s) is operating in accordance with the manufacturer's instructions and design specifications, conducting all regularly scheduled inspections and maintenance procedures, maximizing the amount of outside air supplied, installing air filters with a Minimum Efficiency Reporting Value (MERV) 13 or higher where feasible, maximizing natural ventilation in buildings without HVAC systems by opening windows or doors, when conditions allow (if that does not pose a safety risk), and considering the use of portable air cleaners with High Efficiency Particulate Air (HEPA) filters in spaces with high occupancy or limited ventilation.
8. Perform routine cleaning and disinfection. If someone who has been in the facility within 24 hours is suspected of having or confirmed to have COVID-19, follow the CDC cleaning and disinfection recommendations. Follow requirements in mandatory OSHA standards 29 CFR 1910.1200 and 1910.132, 133, and 138 for hazard communication and PPE appropriate for exposure to cleaning chemicals.
9. Record and report COVID-19 infections and deaths: Under mandatory OSHA rules in 29 CFR 1904, employers are responsible for recording work-related cases of COVID-19 illness on OSHA's Form 300 logs if the following requirements are met: (1) the case is a confirmed case of COVID-19; (2) the case is work-related (as defined by 29 CFR 1904.5); and (3) the case involves one or more relevant recording criteria (set forth in 29 CFR 1904.7) (e.g., medical treatment, days away from work). Employers must follow the requirements in 29 CFR 1904 when reporting COVID-19 fatalities and hospitalizations to OSHA. More information is available on OSHA's website. Employers should also report outbreaks to health departments as required and support their contact tracing efforts.

In addition, employers should be aware that Section 11(c) of the Act prohibits reprisal or discrimination against an employee for speaking out about unsafe working conditions or reporting an infection or exposure to COVID-19 to an employer. In addition, mandatory OSHA standard 29 CFR 1904.35(b) also prohibits discrimination against an employee for reporting a work-related illness.

Note on recording adverse reactions to vaccines: DOL and OSHA, as well as other federal agencies, are working diligently to encourage COVID-19 vaccinations. OSHA does not want to give any suggestion of discouraging workers from receiving COVID-19 vaccination or to disincentivize employers' vaccination efforts. As a result, OSHA will not enforce 29 CFR 1904's recording requirements to require any employers to record worker side effects from COVID-19 vaccination through May 2022. OSHA will reevaluate the agency's position at that time to determine the best course of action moving forward. Individuals may choose to submit adverse reactions to the federal Vaccine Adverse Event Reporting System.

10. Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards: Section 11(c) of the OSH Act prohibits discharging or in any other way discriminating against an employee for engaging in various occupational safety and health activities. Examples of violations of Section 11(c) could include discriminating against employees for raising a reasonable concern about infection control related to COVID-19 to the employer, the employer's agent, other employees, a government agency, or to the public, such as through print, online, social, or any other media; or against an employee for voluntarily providing and safely wearing their own PPE, such as a respirator, face shield, gloves, or surgical mask.

In addition to notifying workers of their rights to a safe and healthful work environment, ensure that workers know whom to contact with questions or concerns about workplace safety and health, and that there are prohibitions against retaliation for raising workplace safety and health concerns or engaging in other protected occupational safety and health activities (see educating and training workers about COVID-19 policies and procedures, above); also consider using a hotline or other method for workers to voice concerns anonymously.

11. Follow other applicable mandatory OSHA standards: All of OSHA's standards that apply to protecting workers from infection remain in place. These mandatory OSHA standards include: requirements for PPE (29 CFR 1910, Subpart I (e.g., 1910.132 and 133)), respiratory protection (29 CFR 1910.134), sanitation (29 CFR 1910.141), protection from bloodborne pathogens: (29 CFR 1910.1030), and OSHA's requirements for employee access to medical and exposure records (29 CFR 1910.1020). Many healthcare workplaces will be covered by the mandatory OSHA COVID-19 Emergency Temporary Standard. More information on that standard is available on the OSHA website at [link]. Where the ETS does not apply, employers are required under the General Duty Clause, Section 5(a)(1) of the OSH Act, to provide a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm .

Appendix: Measures Appropriate for Higher-Risk Workplaces with Mixed-Vaccination Status Workers

Employers should take additional steps to mitigate the spread of COVID-19 for unvaccinated and otherwise at-risk workers in workplaces where there is heightened risk due to the following types of factors:

• Close contact– where unvaccinated or otherwise at-risk workers are working close to one another, for example, on production or assembly lines. Such workers may also be near one another at other times, such as when clocking in or out, during breaks, or in locker/changing rooms.
• Duration of contact – where unvaccinated or otherwise at-risk workers often have prolonged closeness to coworkers (e.g., for 8–12 hours per shift). Continued contact with potentially infectious individuals increases the risk of SARS-CoV-2 transmission.
• Type of contact – unvaccinated or otherwise at-risk workers who may be exposed to the infectious virus through respiratory droplets in the air—for example, when unvaccinated or otherwise at-risk workers in a manufacturing or factory setting who have the virus cough or sneeze. It is also possible that exposure could occur from contact with contaminated surfaces or objects, such as tools, workstations, or break room tables. Shared spaces such as break rooms, locker rooms, and entrances/exits to the facility may contribute to their risk.
• Other distinctive factors that may increase risk among these unvaccinated or otherwise at-risk workers include:
  • A common practice at some workplaces of sharing employer-provided transportation such as ride-share vans or shuttle vehicles;
  • Frequent contact with other unvaccinated or otherwise at-risk individuals in community settings in areas where there is elevated community transmission; and
  • Communal housing or living quarters onboard vessels with other unvaccinated or otherwise at-risk individuals.

In these types of higher-risk workplaces – which include manufacturing, meat and poultry processing, high-volume retail and grocery, and seafood processing – this Appendix provides best practices to protect unvaccinated or otherwise at-risk workers. Please note that these recommendations are in addition to those in the general precautions described above, including isolation of infected or possibly infected workers, and other precautions.

In all higher-risk workplaces where there are unvaccinated or otherwise at-risk workers:

• Stagger break times in these generally high-population workplaces, or provide temporary break areas and restrooms to avoid groups of unvaccinated or otherwise at-risk workers congregating during breaks. Unvaccinated or otherwise at-risk workers should maintain at least 6 feet of distance from others at all times, including on breaks.
• Stagger workers' arrival and departure times to avoid congregations of unvaccinated or otherwise at-risk in parking areas, locker rooms, and near time clocks.
• Provide visual cues (e.g., floor markings, signs) as a reminder to maintain physical distancing.
• Implement strategies (tailored to your workplace) to improve ventilation that protects workers as outlined in CDC's Ventilation in Buildings and in the OSHA Alert: COVID-19 Guidance on Ventilation in the Workplace.

In workplaces (or well-defined work areas) with processing or assembly lines where there are unvaccinated or otherwise at-risk workers:

• Working on food processing or assembly lines can result in virus exposure because these workplaces have often been designed for a number of workers to stand next to or across from each other to maximize productivity. Proper spacing of unvaccinated or otherwise at-risk workers (or if not possible, appropriate use of barriers) can help reduce the risks for such workers.

In retail workplaces (or well-defined work areas within retail) where there are unvaccinated or otherwise at-risk workers:

• Suggest masks for unvaccinated (or unknown-status) customers and other visitors.
• Consider means for physical distancing from other people who are not known to be fully vaccinated. If distancing is not possible, consider the use of barriers between work stations used by unvaccinated or otherwise at-risk workers and the locations customers will stand, with pass-through openings at the bottom, if possible.
• Move the electronic payment terminal/credit card reader farther away from any unvaccinated or otherwise at-risk workers in order to increase the distance between customers and such workers, if possible.
• Shift primary stocking activities of unvaccinated or otherwise at-risk workers to off-peak or after hours when possible to reduce contact between unvaccinated or otherwise at-risk workers and customers.

Unvaccinated and otherwise at-risk workers are also at risk when traveling to and from work in employer-provided buses and vans.

• Notify unvaccinated and otherwise at-risk workers of this risk and, to the extent feasible, help them limit the number of such workers in one vehicle.
• Make sure all unvaccinated and otherwise at-risk workers sharing a vehicle are wearing appropriate face coverings.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Before I dive into this meaty and spectacular[1] question, here is a necessary disclaimer: this answer does not apply to chartered libraries.

Who does it apply to?  The following:

• New York State Education Department chartered or incorporated museums, archives, historical societies, and other non-public entities;
• Not-for-profit charitable corporations (like a "Friends of the Library");
• Clubs, fraternal organizations, benevolent societies (like a knitting club, a bike club, or athletic league).

Specifically excluded from this answer are municipal, school district, and special district libraries, because their rules of conduct must accord with state and federal requirements of due process.  Indian[2] and association libraries must also be cautious about this issue, since the law and practices that form those libraries may have express and at times unique provisions about access.[3]

So, to be clear: NO PUBLIC LIBRARIES should rely on this answer (unless you are using it to help a private museum answer questions about enforcing its code of conduct). [4]

Okay, with that established, here is the answer:

At the heart of this question is the charter (or certificate of incorporation) and bylaws of an organization. Close to the beating heart are its policies.

In New York, most not-for-profit organizations are made "official" through a filing with the NY Department of State.  However, many cultural not-for-profit organizations (including the New York Archives Conference) are made "official" via "chartering" or "incorporating" through the State Department of Ed. 

Both types of entities--"chartered" organizations, and "not-for-profit corporations"--are "real" entities, created by law. 

It is this act of creation--through charter, or incorporation--that sets the stage for how an organization gathers its participants and conducts its business...which is exactly the member's question.

So, before anything else, to determine "what legal ground we can stand on while enforcing our code of conduct" one must look at those documents, which are the key to the identity of the entity.

In this case, the Conference's certificate of incorporation[5] says nothing about membership criteria, but the Conference's Constitutions and bylaws[6] say:

3.1 Membership. Membership shall be open to all persons interested in the purposes of the Corporation. The Members and Board may establish such other criteria for membership, including a schedule of dues, as they deem appropriate.

Meanwhile the Conference's membership terms on its website[7] state:

The constitution and by-laws reflect as much as possible the traditional informality of NYAC. Traditionally, membership in NYAC has been based on attendance at an annual meeting. A single attendance put a person’s name on NYAC’s mailing list for a long time, resulting in a cumbersome list with many out-of-date addresses.

The membership year will coincide with the fiscal year of NYAC, from July through June. The annual meeting registration fee will include the membership dues (currently $15.00). For people unable to attend the annual meeting, membership dues should be sent to the NYAC treasurer to ensure receipt of the following year’s program. If, by some strange chance, a member pays the annual dues prior to conference registration in a given year, his or her registration will be reduced accordingly.

The authority of the Conference's board to adopt the criterial for membership, including adherence to a "Code of Conduct" that can apply to members (and guests), is found back in the bylaws, which state:

4.2 General Powers. In addition to specific powers delineated in the By-Laws, the Board may adopt such rules and regulations, not inconsistent with the Certificate of Incorporation, the By-Laws, or applicable laws, as it may deem proper for the conduct of its meetings and the management of the Corporation.

The "Code of Conduct" the member's question links to is one of the "rules and regulations" mentioned in Bylaws section 4.2.   

Looking at the Code, you can see that it encourages certain (welcome) behavior, and bars certain (unwelcome) behavior, with the following being used to enforce the requirements:

All participants are expected to observe these guidelines during the conference or any NYAC proceedings, including virtual settings. If you may witness or experience any inappropriate or harassing behavior please report this concern using the form below.

Dial 911 for immediate medical emergencies or to report a crime. All reports to NYAC will be followed up and taken seriously in order to protect our participants from further abuse. 

The policy then sets out multiple options for reporting, including an online form, which states:

We can't follow up on an anonymous report with you directly, but we will fully investigate it and take whatever action is necessary to prevent a recurrence.

...all of which brings us to the member's question: how can this be enforced?

First, it is important to consider just what is being prohibited. Here is the list from the Code (as stated at the bottom of the Code, this policy is inspired by Codes adopted by other archival organizations):

Unacceptable Behavior: 

NYAC does not tolerate harassment of any shape. If any participant engages in any demeaning, abusive, coercive, discriminatory, or harassing behavior, appropriate consequences will be taken against such individuals. This could result in something as minimal as a warning or more serious as being handled by the authorities. Harassers may lose privileges to the conference(s). 

• Threats or acts of violence.
• Intimidation or stalking.
• Disruption of any speakers/panelists or any conference proceedings
• Derogatory or unwelcome comments regarding a person’s race, gender, sexual orientation, religion, disability, lifestyle choices and practices.
• Inappropriate physical contact or unwelcome sexual attention.

Second, it is important to establish: as a not-for-profit corporation operating in New York, the New York Archives Conference already has to follow the below-listed laws:

• Conflict of Interest requirements of the Not-for-Profit Corporation law;
• (If it ever had the right amount of money or employees, or wants to meet some donor criteria) the Whistleblowing requirements of the Not-for-Profit Corporation law;
• The New York Human Rights Law (barring illegal discrimination on an array of characteristics[8]) and other civil rights laws.

So even without such a policy, there is not only authority, but could be an obligation, to receive reports of certain behavior, and deal with them as required by law. 

A good example of this, from the Code, would be derogatory comments based on sexual orientation (which could be a violation of New York's bar of sexual harassment).

Third, it is important to consider that some of the conduct listed in the Code is criminal.  Examples of that include:

• Stalking
• Threats of violence
• Unwelcome physical contact (this is of course highly fact-specific)

For instances involving the alleged commission of a crime, a report and investigation could quickly become complicated by questions such as: will the reporter want to contact law enforcement?  Does the venue have an obligation with regard to the incident?[9]   Does the Conference have evidence that could later become relevant in a criminal proceeding? 

And finally, it is important to see that this Code requires conduct that "rises above" the bare minimum set by various laws.

For instance, the Code bars interruptions, rudeness, and demeaning conduct.  While sometimes such conduct can be a part of illegal "harassment" or even "coercion," barring even one minor instance of such conduct is more about setting the professional atmosphere for the Conference, rather than simply obeying the law.

"Setting the professional atmosphere" for an organization might also be called "setting the norm."  By adopting this Code, the Conference is setting a norm of courtesy and respect, ensuring members are not interrupted or jeered when participating in Conference activities. 

So how does the board enforce this "professional atmosphere"?

I could go on and on about the law,[10] but I have 5 tips:

Tip #1: Model the behavior you require.

The best way to enforce a Code of Conduct is to ensure the leadership within the group visibly complies with it (this will also ensure compliance by directors and officers, which will help avoid legal complications).

Tip #2: Repeat the rules often.

It may leave leadership feeling like a broken record,[11] but when it comes to new norms of behavior, repetition is your friend.  It is great that the Code has its own sub-page on the Conference web site; for an event or meeting invitation, a link should be on all materials.  Conference event leaders and speakers should get at least a 15-minute orientation on how to comply with and benefit from the Code during events, meetings, and online discussion (I am a fan of training through role-play).  The board should revisit the Code at least once a year to discuss specific incidents and assess if the institution's response requires refinement. 

By repeatedly describing and addressing the norms, they will be built into the foundations of the organization.

Tip #3:  Follow through on enforcement.

The Conference's Code says "All reports to NYAC will be followed up and taken seriously in order to protect our participants from further abuse."  What does that mean? That each report must result in a final summary as to how the incident was handled.

Unfortunately, there is no one way to ensure this level of follow-through.  Some instances may be resolved simply by a discrete chat with a person to let them know that their romantic overtures are inappropriate.  Other incidents may warrant an announcement to all attendees at an event ("We received reports of numerous interruptions.  We want to emphasize that this is a violation of our Code of Conduct."), as well as more private action directed to specific individuals (a letter or warning).  Still other incidents (hopefully very rare) could result in ejection from an event and/or a report to law enforcement.

The trick is that for every report received, there be a good summary of the reported conduct, and a thorough "final summary" as to how the incident was investigated and resolved.  Again, there is no one-size-fits-all for this: some instances might be resolved with a paragraph ("The attendee was told that for the remainder of the Conference, no interruptions would be tolerated, and she agreed"), others could result in multiple pages and coordination with other organizations (for instance, if two co-workers get into a screaming match and call each other discriminatory names, be ready for lots of paperwork).

Tip #4: Have an established team, and a back-up team, to handle reports.

A reported incident under a Code of Conduct is not a trip for a part-time volunteer to fly solo.

Even if a report seems straightforward ("I sat down after presenting and PERSON gave me a long hug that made me very uncomfortable"), handling reports under this Code is not a one-person job.  There are too many variables[12] that can trip up even the most diplomatic and well-intentioned individual. 

If you are a designated report recipient, you need calm, steady back-up.  This is why having a pool of at least six people who know the Code, and are ready to respond to a report, is critical, and using no less than two people to respond to each report is also important.

Tip #5: Know when to bring in a pro.

The member has asked:

Are there any considerations for the standards we use in evaluating a complaint? What should we use for the burden of proof? To what extent are we empowered to investigate claims? What happens if someone challenges any resulting board action? Can we be sued for taking action and besmirching someone’s professional reputation?

These are excellent questions fueled by perceptive concerns; even the most professionally handled investigation with maximum due process can lead to distrust, the forming of factions, destabilization, and even (as the last question alludes) claims of liability.

How does an organization avoid that?

For a policy such as this Code of Conduct, at an all-volunteer organization, it is good to have a sense of what things can be handled in-house, and when it is time to call in an expert.

Here are some broad guidelines for when to bring in a ringer:

• If there is an allegation of criminal conduct, especially if there is an allegation of physical abuse or stalking;
• If there is an allegation that-if true-would lead to suspension or permanent ejection from the organization;
• If there is property damage.

Now, when I say "bring in a ringer," I don't mean a person to take over the whole investigation (although they may).  And I don't necessarily mean a lawyer.  I simply mean a person with the professional skills and past experience to help the organization consider issues beyond the Code, but critical to the organization: risk of personal harm, liability, legal compliance, insurance, and (a distant fifth, but still important) public relations.

For issues that are going to result in a "soft" correction ("Hi, we know people hug here on occasion, but please know that unless a person has told you it is okay to hug them, it's a Conference rule that you refrain"), there is no need to consult a pro. 

But for "hard" corrections ("After repeated warnings regarding physical contact, you continue to impose unwelcome physical contact, and we must ask you to leave the Conference immediately") it is good to quickly check in with a pro.

For example, if I was consulted on the above "inappropriate hugging leading to a ban" scenario, I would ask:

• Is/are the complainant/s injured?
• Is/are the complainant/s the recipients of the hugs, or a third party?
• When was the hugger last spoken to about this?
• Who has witnessed the behavior?
• Is the person a paid speaker or ticketed attendee?
• What dynamics are at play?
• What is the venue?

I would then work with the client to craft a swift but thorough response that ensured clear documentation of the occurrences, ruled in or out any allegation of injury or illegality (a very prolonged hug can be a criminal act, or just a very welcome gesture, depending on the details), used a risk analysis to adopt an immediate response, and developed a clear path forward to effect a resolution.

The good thing is, with the power of leadership modeling, repetition, and training, most complaints will be in the "soft consequences" zone ("I was speaking and PERSON interrupted me to tell me our approach was 'junk' and say how much better their database would handle the content; I just want to know that you have let them know that is unacceptable.").[13]

If a serious complaint does come along, there is no "catch-all" due process I can recommend for responding.  However, I can say that for each report, each response should follow this pattern:

• A written statement of the complaint (held in confidence by the Conference; there is no need to share this document with any party, and it should be considered confidential) NOTE: This is the phase where you consult an expert if things are serious;
• An initial assessment as to if the complaint is bona fide (if it isn't, you document that, and things end there, except perhaps to explore if you need to address a confabulated allegation);
• A process for collection of relevant evidence and designation of an appropriate deadline for wrapping up the process;
• A consistently applied means of evaluating the evidence;[14]
• If there is to be action based on a finding of fact, a chance for the accused party to set forth their perspective on the accusation (a private organization has no obligation to share evidence in this type of proceeding, and shouldn't, without very careful planning);
• A final summary as to how the report was resolved (a "soft" resolution simply advising an accused party of the rules, but no penalty, or a "hard" resolution with conditions imposed), and how the resolution can reinforce the norms of the Conference (does there need to be both a "private" and "public" resolution?)

In my experience, where all-volunteer organizations get in trouble is when a serious complaint (such as a complaint with injuries, or extreme rancor, or challenging harmful norms in the organization) is sat on (meaning: no action is taken, because they just don't know what to do).  This, along with early identification of risks and planning to avoid liability, is why I advise bringing in a pro for "serious" matters.

Other than the "serious" matters, having a group of board members or a volunteer committee trained and ready to nimbly and promptly address concerns under the Code will be a tremendous service to your organization.  I applaud the Conference for adopting a Code, and for thinking about the details of enforcing it.

I wish you many challenging-but-polite, innovative-but-patient, and rigorous-but-respectful events. 

Thanks for a great question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This reply will answer the questions up-front, and then tackle the concern about the full board not seeing a matter since it was voted on in committee in the "background and commentary" section.

The questions:

1.  Can the non-trustee members of a committee vote if one is called for in the committee?

Yes, if a library board has a committee with non-trustee members, those non-trustee members can vote.

2.  Should we amend the by-laws to specify them as voting/non-voting members of committees?

No, there is no need to amend the bylaws.  If the non-trustees are properly appointed committee members, they may vote.  If the non-trustees are not actual committee members but are instead there in an advisory capacity, they should not be referred to as "members" in the first place, and the appointment letter should make that clear.

And now, for some background and commentary.[1]

Back in 2014, the New York Not-for-Profit Corporation law was amended to create two types of board committee:

• Committees of the Board
• Committees of the Corporation

As the member points out, "Committees of the Corporation" are committees that--while they might work hard on matters of great importance to the library--cannot "bind" the board...meaning, they can't make "official" decisions final (authorizing a budget, signing a contract, or voting to hire a director).

"Committees of the Board," on the other hand, are authorized to "bind" the board in certain matters, including investments, endowments, employment, and some matters relating to real property.[2]

While this "Committees of the ______" change was quietly revolutionary in many not-for-profit circles,[3] it was already somewhat familiar territory for libraries, because the Education Law already authorized them to have an "Executive Committee" to "transact business of the corporation" between meetings.[4]  In other words, libraries were already used to designating committees with express and binding authority.  This just gave them more options to bring on more participants who were not trustees.

Now, while "Committees of the Corporation" may not be not tasked with the Really Big Decisions, as the member points out, they can still do very important work.

For example: let's say a library has created a "Public Relations Committee" ("of the Corporation") responsible for monitoring and identifying tactics for the library's presence in traditional and social media.  The committee doesn't sign contracts or even write press releases; it simply monitors and issues advice, meeting virtually once a month to review the library's media footprint and track its various metrics.

Based on some observations, the committee decides the library should adopt a "Social Media Policy."[5]  Since the committee can't "bind the board," they can't vote to adopt the policy, but if they vote to do so, they can:

• Vote to designate a committee member or sub-committee to draft the policy;
• Draft the policy;
• Write a memo urging the board to adopt the draft policy;
• When both are ready, vote to authorize the submission of the draft policy and endorsing memo to the full board.

Now, here's where the member's concern comes in: How does the full board know this work is being done? 

The critical work of committees "of the corporation"--even if they are not "binding" the board--should be connected to that of the full board by a routine report (or meeting minutes) that are "received and filed" by the full board subsequent to every committee meeting.[6] That way, whether or not the committee votes, the board is aware of its work, and what is in the pipeline.  Committee work should never take place in a vacuum; it should always be linked to the operations of the board by reports and minutes.

A high-functioning library board operates like an orchestra--different sections may rehearse separately, and sometimes, there may even be a prima donna moment or two--but the end goal should be harmony. 

A board's various committee types may have different functions, compositions, and authority, but they are all part of that system.  Thank you for a great question that showcases their differences and value.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

"Is this legal?"  Not likely.

But before I say more, I just want to offer a quick primer on how things work at "Ask the Lawyer."

Since the situation depicted in the question could result in legal claims by the Director, the board, and/or even the Town--or be relevant to an audit by the State Comptroller--this is the type of "Ask the Lawyer" question that can only be answered--really answered--under attorney-client privilege.

Why is that?  Because of how "Ask the Lawyer” works.  When questions like this are submitted (questions that ask for advice and guidance for the requesting member and their council, as joint clients[1]), our typical approach is to a) contact the member, b) get any additional information needed to assess the question, and then c) send an attorney-client privileged answer. [2]

After that, if the member consents to it, we create a "generic" answer, channeling the research gathered into general advice that may be useful for a broad audience (of libraries, museums, historical societies, and other regional council members).

This question, of course, presents an issue mostly relevant to public libraries.  And here is the "generic" answer to the scenario presented:

There are a number of factors an attorney needs to dig into in order to answer this question.

First: is the director an hourly employee, or salaried?  If salaried, this question doesn't make much sense,[3] so we'll go with hourly.

Second: Is the director required as part of their job to attend the meeting?  Since they are mostly there in their professional capacity, let's say "yes."

Third:  Did the director, in the past, report the hours into the payroll system, and receive compensation for them?  Let's again say "yes."

Fourth: Has the board consistently performed the aspects of board authority over the position (making the decision to hire, signing the hiring letter, performing annual reviews, working with Civil Service to amend the job description when needed, effecting disciplinary action and plans of improvement if needed, approving payroll,[4] approving scheduled vacation times, overseeing time off for disability, effecting termination)?  Again, from the scenario, we'll say "yes," which means the board has not laid a foundation for the lines of employment to be blurred (they are undisputedly in charge).

Fifth: Has the previous payroll, which included compensation for attending the meetings, been approved per the requirements of the Civil Service law?[5]  While that may be something happening subtly behind the scenes, based on the scenario, again it is probably "yes."

If we added those details to the scenario, I would see no basis for a town official to be able to unilaterally decide what tasks may or may not be compensated.

In fact, the only way I could see a town official being able to (legitimately) do such a thing is if the library board had expressly delegated all authority for supervision and payroll oversight to the town...something that would be a dangerous practice, since it would seriously undercut the library board's autonomy and authority.

The courts in New York, the State Comptroller,[6] the State Attorney General, and local Civil Service agencies all grasp the nuances of public library boards' authority, but it can be a struggle for newer public officers.  The autonomy and authority of a library board can often feel like a square peg to a public official used to only round holes.  That is why it is important to nurture the relationship routinely, deliberately, and carefully.[7]

What can be done in this case?  To avoid a claim of unpaid wages, a library board would need to develop a plan to put things right.  There are a number of ways to approach this, but I'd start out by enlisting the help of the local Civil Service, who can confirm that the library is a separate employer, with an obligation to confirm their employees' hours.[8] In the alternative, a good resource who may take a similar technical approach could be the municipality's attorney.

Since all that could take some time, if the board wants to vote to adjust the payroll (ensuring the payment is properly subject to taxes and withholding, etc.), the board may also want to enlist the help of the State Comptroller (the authority that audits public library payroll from time-to-time).  How would a library do that?  Prior to any adjustment, it would be a good idea to confirm the basis for the correcting payment in writing with the Comptroller, after which the board could resolve to make the adjusting payment (since the minutes of the meeting, and the meeting itself, are a public record, this is a good exercise in transparency).

Because of the risks involved in compensation-related matters, if at all possible, this type of challenge is a good one to work through with an attorney.[9]

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This question tugged at my heart, because lawyers face issues like this, too.^[1]

Maintaining confidentiality while addressing concerns that a person is being victimized creates terrible tension.  The need to maintain a trusting relationship, governed by professional ethics, makes the tension all the more acute.

It is those professional ethics, however, that will carry the day.

What is the basis of a librarian's obligation of confidentiality?  Confidentiality of library records is, of course, protected by state law,^[2] but it starts in item "III" in the ALA Code of Ethics^[3]:

III. We protect each library user's right to privacy and confidentiality with respect to information sought or received and resources consulted, borrowed, acquired or transmitted.

But this issue also related to item "I" from that Code:

I. We provide the highest level of service to all library users through appropriate and usefully organized resources; equitable service policies; equitable access; and accurate, unbiased, and courteous responses to all requests.  [emphasis added]

So, here we are: iron-clad confidentiality, coupled with "unbiased" responses to all service requests.  From within those ethical boundaries, the member has asked:

• If there is an obligation to protect a patron from a suspected scam;
• How they can help even if there is not an obligation; and
• Could the situation lead to liability for the library?

There are information management professionals far more qualified than I to discuss the professional nuances of these questions.  But from the legal perspective, and to address the legal questions about obligations, protection, and liability, here are my answers.

Question 1

What responsibility do library staff have to inform a patron if we think they may be in the process of communicating with and sending documents to a scammer?

Answer 1

There is no legal duty to inform a patron of this suspicion.  Further, I see nothing in the ALA Codes of Ethics that makes it an ethical duty of the profession. 

Question 2

How do we protect our patrons from scams/fraud while also respecting their privacy?

Answer 2

We have reviewed that there is no legal or ethical obligation to "protect" a patron in these circumstances, and there can even be concerns related to trust, confidentiality, and perceived bias that mean a librarian should keep their suspicions to themselves.

However, neither the requirement to be confidential, nor the obligation to provide services without bias, stop a librarian from doing what they do best: sharing information.  And nothing stops a library from pre-assembling a compilation of available resources the library can use to empower a patron to assess if they are being scammed.

Here is a scenario showing how such a "compilation" could be used:

PATRON: I need to print an email.

LIBRARIAN:  Sure, the computer in over here.  Let me know if you need instructions on how to print. 

PATRON:  Can you also help me find the email?  It has instructions to wire money.  It's from my grandson, Michael.  Normally I would ask his mother to help me but this is a real emergency and I can't tell her what's happening, it would just kill her.

LIBRARIAN: I am happy to help; there, it's printing. [pauses] You know, this request reminds me of something I read/heard about.  Do you want to know about it?

PATRON:  Sure.^[4]

LIBRARIAN [searches for "bail the grandchild" scam]:  Here it is.^[5]  [Retrieves list of information.] And here is a resource about who to call when there is a concern about the type of thing on this website. [Hands patron list of resources]

[end scene]

Here is a template for this type of "list of resources":

A simple offer of information, and a plain-language resource like this can be a handy way to raise concerns without having to tell someone "You're being scammed." 

At the end of the day, not all patrons will be receptive to this offer of information, and not all patrons will believe they are being scammed--even if their story matches a scam-scenario. 

But no matter what the patron's reaction, by taking this approach, the librarian will have done the only thing the librarian is ethically obligated to do in this type of situation: provided unbiased services, and granted access to information, while maintaining the confidentiality of same.

Question 3

How liable is the library/library staff if a patron is scammed after library staff use library resources to send documents/information that played into the scam, even at the patron's request?

Answer 3

If the librarian suspects that the scenario could be an illicit scam, but doesn't know this is phishing, social engineering, or another type of activity that can lead to fraud, there is no responsibility for what happens next (unless the library has adopted an internal policy^[6] stating otherwise, in which case there could be some employer-imposed consequences).

On the other hand, if the librarian somehow knows that the scenario is an illicit scam, and actively helps with the commission of what they know to be a crime, then yes, there could be liability.  But once such a scam is known, not merely suspected, this becomes a whole other question.^[7]

A few more comments

Another aspect I want to address is if the librarian is concerned not that the person is being duped, but that they don't have the mental capacity to comprehend and/or remember they are being duped. 

People with Alzheimer's and other conditions impacting cognitive ability may rely heavily on an established routine of visiting their local library.  Further, people with that impairment still may be able to function independently for most aspects of their day. However, a librarian detecting a possible scam could be on the front line of a legitimate concern that they don't have the function to assess the situation.

There are too many permutations of this situation for me to give general guidance, except to say: if there is a concern that a person can be vulnerable to harm due to a medical condition or disability, but their condition is not so extreme that there is clearly a justification to call medical services, call an expert.

If the person is over 55, the Center for Elder Law and Justice is a great resource; they address these types of issues every day, and their hot line is there to help assess a situation and identify possible next steps.  If the person is not over 55, a good resource could be the local Social Services agency.

Conclusion

When it comes to this issue, my overall advice is to remember that as a resource to the community, library employees are there to provide access to information and resources, not to protect people from harm.  The good news is, by providing that access in a manner consistent with library ethics, library employees can help patrons protect themselves from harm.  And that is how a library can help stop a person from being scammed.

Speaking from experience, I can say that not every person will take information when it is offered.  There are times when the only comfort that can be taken from a situation is to know that you tried your best.  But by focusing on the ethics, and the provision of information, a librarian can help a person identify a scam, and avoid legal entanglements.

I wish you strength on this one.  Your patrons are very fortunate.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

I am expediting the answer to this question in light of the new guidance issued by the CDC on 5/13 (stating that people two weeks past their final vaccination can relax on wearing masks)[1], because I foresee more situations like this are going to arise.[2]

The short answer to the member's question is: yes, your mail carrier should provide service in a manner compliant with USPS delivery standards, while following the requirements of current executive orders and your library's safety plan.

Further, based on the delivery standards in various postal handbooks,[3]  I think you indeed may have "a leg to stand on" in pressing the matter.

That said, when it comes to contract service providers or vendors--even the USPS--refusing to abide by your library's policy and, instead, altering a long-established mode of service, the only recourse (unless there is a service contract in play[4]) is to do what you have done: take up the issue with their employer.

So, what more can the member do?

This question gave me a chance to do a little digging, and I was not surprised to see that the USPS  has been dealing with this type of issue for a year now[5].

The pandemic has thrown curveball after curveball at the USPS.  This onslaught has resulted in a series of temporary guidance and local union contract modifications being layered on top of the already complex web of regulations and union contracts governing the delivery of the US mail.

In other words, the "legs" supporting the case for safe and compliant delivery in this case might be tangled...making identifying the applicable rules tough, even for a local supervisor with the union contract at their fingertips. 

If you try to re-visit the issue with the local office, my suggestion is to approach the issue in a spirit of problem-solving, focused on how the library can get the "actual delivery" it needs, while keeping the postal carrier safe and the library compliant with its own policy.

The Postal Service, the United Postal Workers Union (the APWU[6]) and the National Association of Letter Carriers" (or "NALC") support the use of acknowledged safety measures. 

In December, 2020, the President of the NALC wrote to the union's membership[7]:

Today, over 14,000 postal employees are under quarantine from the virus. Well over 66,000 previously quarantined postal employees have been cleared and returned to work. About 5300 of the currently quarantined postal employees have tested positive for the virus, and another 1800 plus are presumed to be positive. Almost 16,000 postal employees who tested positive in the past have recovered and returned to work. Of all these numbers, about thirty percent are letter carriers. Sadly, 105 active postal employees have passed away from the virus, including 22 city letter carriers. We have been notified of 6 retired members who have passed away from the virus as well.

The heroic work you do each day delivering the nation’s mail is of great importance to our economy, to our health, and through the election season during a pandemic, to our democracy. As you continue this important work, please also continue to take every precaution regarding social distancing and face coverings. Please do all that you can to protect yourselves, your families, your coworkers, and your customers. Thank you for all that you do. God bless each of you and your families, please stay safe. [emphasis added]

So, what more can the member do here?

While acknowledging it could be a tangled web, working with a post office's local supervisor to truly confirm that the carrier cannot be required to follow your safety plan--in light of the statements by both USPS and the unions--might be a good first step.

I also want to take the opportunity to address the "5/13 development" (the new CDC guidance).

This pandemic isn't over, but we are clearly moving into a new phase...a new phase that will include the state, the various counties and municipalities, and OSHA (whose COVID guidance has been the go-to for workers across the country, including New York State), working to "catch up" with the new guidance from CDC.[8]

What can a library do right now to address this new CDC guidance?  We'll know soon enough...but (this is being finalized May 16, 2021) we don't know right now.

Until we have that new guidance, from a source you trust (confirmed by your county health department, straight from OSHA, or the NY Department of Health), here is a suggested template for addressing the new guidance:

Well, the CDC hit us with a curveball on 5/13 when it issued guidance stating that people at least 2 weeks past their final immunization shot can be without masks.

As of 5/16, the State of New York has not changed its mandates and guidance to incorporate this guideline.  In addition, OSHA, from which many draw their safety practices, has not changed its guidance yet.

Therefore: for now, the [NAME] Library's Safety Plan is unchanged.  Please continue to wear masks as before, regardless of vaccination status.  Further, please continue to use social distancing when required, and continue with our established wipe-down procedures.

We are all ready for a time when we can come to work with less restrictions.  We expect updated guidance from the State soon, and we will amend our Safety Plan when it is appropriate to do so.

Until then, please keep following the Plan, and carry on.

Thanks for all you do.

Overall, here is my suggested order of priorities for board and library employees working to provide critical services in this time of rapid change:

• Safety first (including your safety)
• Also: People first (starting with people's safety, which is both physical and emotional well-being)
• Routinely check the applicable requirements (designate a person to do this daily)
• As needed, update your Safety Plan
• When enforcing a policy, to the greatest extent possible, work with a buddy
• Boards and directors: stay nimble

We're getting there.

More soon....

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

To give readers a bit of context about my answer to this: between 2006 and 2017, I was an in-house attorney at a university.  During that time, I hobnobbed with a lot of other higher education attorneys; first, because the hobnobbing helped keep us current in our practice, and second, because attorneys--like murders of crows or parliaments of rooks--are social creatures, who just need to talk about the law.

One of the many higher education/law topics that could turn a flock of lawyers into a full-fledged symposium was the issue of what is meant by the term "faculty."[1]

Are adjuncts "faculty"?[2]  Are grad student instructors "faculty"?  If a full-time staff member teaches a course or two, are they "faculty?"

Complicating the issue is that the definition of "faculty" will vary from institution to institution, based on union agreements and accreditor criteria--to say nothing of state law and regulations.

And finally, a wrinkle can be created when a "faculty" member leaves regular employment with a college or university, but assumes a new (and often under-defined) status, such as:

• Retired faculty (whose retirement is governed by contract or policy)
• Retired faculty with honorary title "Emeritus" (a title which may or may not convey benefits)
• Terminated but "consulting" faculty who have a formal continuing affiliation with the institution (by contract or policy)
• Terminated but "proximate" faculty who don't have a formal continuing affiliation with the institution, but for whatever reason, may retain the trappings of their former affiliation (network access, library card, the computer they used when they were employed, etc.).

This issue of undefined status is the type of topic that will occasion lots of discussion and perhaps another round of potables at a lawyer’s kettle.[3]  Why the fuss?  Examples exactly like the one brought up in this question.  Lawyers hate it when we can't put things into minutely defined boxes to process through a legal formula (after all, the order we impose by doing so is the entire reason for our professional existence).[4]

Here are some examples of what "disorder" a clause like those in the question is meant, by the content provider, to avoid:

• The licensed content access flowing to any person with privileges at the institution's library (since many institutions allow community members to get cards);
• The licensed content access flowing to a large body of people affiliated with the institution, such as alumni or boosters;
• The content access flowing to groups or people with only a loose association with the institution (for instance, sometimes student clubs are open to community members); and
• Any other way the institution could allow access that could deprive the licensor of revenue.

Of course, just what is barred, and how "former faculty" access could violate it, is highly fact-specific.  So let's take a look at the member's specific question:

...we have more than 20 licenses that state in one way or another "current faculty" only.  I would take that to mean that former faculty, regardless if the institution allows them to keep their credentials for a year after termination, would NOT be legally allowed to continue to access those resources.  Am I right?

Yes, you're right: if a faculty member is terminated and has no ongoing affiliation as a faculty member (even a tenuous affiliation, such as an honorary appointment or "emeritus" designation, which could give some slim justification), then there is no basis to claim they are "current faculty."

In my experience talking with aeries of higher ed attorneys, the most common way this type of concern is raised is when a faculty member is terminated, and asks to take their institutionally-issued laptop computer with them (often because it is the sole computer they have)--continuing access to servers and databases that would otherwise be cut off.  Many places want to do the nice thing and say "yes," but there's a catch: the institutionally-issued computer usually has proprietary software and access that is only available to (you guessed it) current employees.  (In addition, if the faculty member was teaching, it might house a lot of content protected by FERPA.  So, this question of ongoing access to content only licensed for use by current employees is often the tip of a big compliance iceberg.)[5]

But at this point, I have passed from answering the question (remember?  The answer was "Yes!") and moved onto the practical considerations.   Practical considerations, of course, are where many of the devilish details reside, but having answered the question, we'll leave it there for now.

Hopefully, this answer from within the conclave of the higher education law has provided some assistance and clarity.  I wish the member well; raising this type of contract compliance concern, which can cut across departments at a college or university, is rarely easy, but it's the right thing to do for an institution.

Thanks for a good question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Above all, "Ask the Lawyer" strives to provide useful, plain-language legal information and analysis for the members of New York's regional library councils.

So before I delve into the background, legal analysis, and compliance tips I would like to offer in response to these questions, here are some useful, plain-language answers:

• The posted signage must specify that the single-occupancy bathroom is "gender neutral;"
• Symbols are allowed only if they effectively convey that the bathroom is "gender neutral";
• Amounts and ratios of toilet facilities depend on the type and size of the library;
• Yes, there is a defined standard-height requirement for Braille signs designating a public bathroom.

And with that said...let's delve.

Background

First, let's check in with the legislation[1] the member references, which was signed into law in December 2020, and went into effect in March 2021.

Called "AN ACT to amend the civil rights law and the education law, in relation to single-occupancy bathroom facilities," this legislation affects not only bathrooms in public spaces (like bars, restaurants, etc.), but also bathrooms in SUNY, CUNY, and all community colleges.[2]

While the title and the text of the new laws may sound a tad dry, the "legislative memo" that accompanied it left no room for doubt as to the law-makers' aspirations:

Access to public spaces should not be a privilege. A person's sexual orientation and gender identity are not justifications to exclude individuals from public spaces, including bathrooms. The argument that transgender individuals must use the restroom that corresponds with their assigned gender at birth is discriminatory and wrong. New York State has been a safe haven for people from all backgrounds and beliefs, and we must recognize our role as a leader in the fight for transgender rights. Expanding the civil liberties of transgender individuals is a task New York must take up with pride. We must acknowledge that this issue is not about bathrooms, but is instead about fighting for a person's right to exist in the world free from harassment and discrimination. The California legislature recently passed the most progressive bill on bathroom access in the nation. Now is an opportunity for New York to join California in its efforts to protect transgender individuals and expand inclusivity and dignity for all.  Modeled after

California's bill, this act would require all publicly accessible bathrooms, including those in public and private schools, restaurants, bars, mercantile establishments, factories or state-owned or operated buildings, to designate all single occupancy bathrooms as gender neutral.

The memo makes it crystal clear: the intent of the act is to protect civil rights.

This background is important to consider, because as we analyze how to comply with the new laws, the lawmakers' intent--sometimes called the "spirit" of the law--is relevant. 

 Legal Analysis

Any institution that must comply with the Americans with Disabilities Act ("ADA")[3] should use the United States Department of Justice (USDOJ)'s standards for accessible design, including when creating the now-required postings to designate gender-neutral[4]  bathrooms.

The USDOJ's ADA standards are silent about gender-neutral space.  However, they do set parameters for signage, including, as the member writes, use and placement of Braille and signs with "tactile" (can be discerned through touch) elements.

Among what is required (sorry if this language is opaque, I don't write the guidance, I just quote it):

Tactile text descriptors are required for pictograms that are provided to label or identify a permanent room or space. Pictograms that provide information about a room or space, such as "no smoking," occupant logos, and the International Symbol of Accessibility, are not required to have text descriptors.

And

703.4.2 Location. Where a tactile sign is provided at a door, the sign shall be located alongside the door at the latch side. Where a tactile sign is provided at double doors with one active leaf, the sign shall be located on the inactive leaf. Where a tactile sign is provided at double doors with two active leafs, the sign shall be located to the right of the right hand door. Where there is no wall space at the latch side of a single door or at the right side of double doors, signs shall be located on the nearest adjacent wall. Signs containing tactile characters shall be located so that a clear floor space of 18 inches (455 mm) minimum by 18 inches (455 mm) minimum, centered on the tactile characters, is provided beyond the arc of any door swing between the closed position and 45 degree open position.

And

703.4.1 Height Above Finish Floor or Ground. Tactile characters on signs shall be located 48 inches (1220 mm) minimum above the finish floor or ground surface, measured from the baseline of the lowest tactile character and 60 inches (1525 mm) maximum above the finish floor or ground surface, measured from the baseline of the highest tactile character.

Meanwhile, in the State of New York, the State Building Code Section E 107.3 reinforces these signage requirements.

What does all this mean?  Ideally, the posted signage designating a gender-neutral, single-occupancy or family assist restroom should have either a pictogram with a tactile element on it, or Braille text descriptors describing the room, and with regard to placement, that sign's center should be no less than four feet and no more than five feet above the floor.

Now, let's talk about symbols (as opposed to words).

What if your library wants to use a symbol (or "pictogram") instead of the phrase "gender-neutral"?  This is a tough one.  If you still have those USDOJ ADA standards open, take a look at how they refer to use of symbols.

First, you'll see that there is a "universal" symbol, set by the International Organization for Standardization (the "ISO"[5]) for designating a bathroom that meets the standards for wheelchair access:[6]

Use of this "universal" symbol is described in both the USDOJ ADA guidelines, and the NY State Building Code.

Next, you'll see that the ISO does have a symbol they have developed to designate that a bathroom is "unisex":

Now, this is just me saying this, so take it with a grain of "persnickety lawyer" salt, but "unisex" is not the same as "gender neutral."  Further, a symbol combining the binary designations for "female" and "male" is not quite consistent with an initiative seeking to respect the innate dignity of people who might not identify with either category.[7]

So, until the ISO develops a symbol for "gender-neutral" that doesn't rely on a binary construct of gender, I advise considering not using a symbol at all (for the "gender-neutral") part.  Give the ISO time to craft a more appropriate pictogram.

That said, if you are a library lucky enough to have a bidet in your single-occupancy, gender-neutral, family-assist bathroom, the ISO might still have an option for the "bidet" part:[8]

--Just make sure that as required, the pictogram has a tactile element.

Compliance tips

With the legislative record clearly establishing that this change to the law is about civil rights, and with libraries eager to emphasize their missions of access and inclusivity, the signage for a library's gender-neutral bathroom is a good one to demonstrably get right.

However, as you can see from the "Legal Analysis" above, "getting it right" can be complex. 

As just a final example of that complexity (and to delve a bit more into one of the member's questions) here is a section of the New York State Building Code's Section 2902, on the prescribed ratio of plumbing facilities for libraries (including total amount of lavatories, amount for men, and amount for women[9]):

What is the take-away from this chart?  If your library is struggling with how to designate, plan, or build the right number and/or type of bathrooms, don't be surprised: this stuff is not simple, and it takes consideration of old/new construction, your status as a tenant or building owner, local law, and a host of other factors.  Which is why (in addition to your lawyer), a local architect, or a planner with experience on civic and public assembly spaces, is a good person to reach out to. 

Architects and planners are the people who live and breathe place-making and ordinal signage.  By design, these are professions that think about how people organize buildings, and how people can feel welcome in spaces.  An architect or planner with experience in your area will know exactly how to not only designate the space, but to order the signage, and assess the required number of facilities.  Since there is no "one size fits all" answer to some of these issues, a library needs to consider a custom fit.

If you aren't sure where to start on a quest for an architect or planner, a call to your local "Permits" officer might yield a name or two, and if there is a local college, their librarian might be able to connect you to the "head of planning." 

Conclusion

I have included a lot of analysis in this answer, because in my experience an audience of information management professionals can handle it.

That said, after all the above analysis and commentary, the answers regarding a gender-neutral, single occupancy/family assist bathroom are simple:

• The posted signage must expressly specify that the single-occupancy bathroom is "gender neutral;"
• Symbols are allowed if they convey that the bathroom is gender neutral, but (my thoughts) the "official" symbols out there aren't 100% on point, so proceed with caution;
• Whether or not a library is required to have at least one designated male and one designated female bathroom in their building depends on the type and size of the library; consult a planner or licensed architect in your area if you are unsure;
• If you order ADA-compliant signage with Braille or a tactile element, affix the center of the sign between four and five feet from the floor, taking care to select a space that meets the USDOJ's requirements.

Thank you so much for a thoughtful array of questions, I was very grateful to be able to spend some time delving into this topic.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Menus can be works of art.[1]

"Art" of course, is a subjective term, and has no precise, stand-along definition in copyright law.[2]  So more importantly for this discussion, a "menu" can be a composition of such originality and substance, that it is protected by copyright law.

This protection can be for the work as a whole (the entire menu), and/or it can be for individual elements in the work.  It can cover stand-alone elements (such as a cover photo image or flavor text[3] used to describe a signature dish), and, in these days of Slice and Grubhub and Yelp, it can be for the menu as a physical object, or a version published only online.  It can cover the original art in a trademarked logo, whether that art was generated by an independent contractor or employee.

Recent case law illustrates how these protections can be sliced-and-diced, and also shows just how nasty litigation over restaurant copyrights and trademarks can be.[4]  Menus and the logos and information they carry can be the apex of a restaurant's brand, reputation, and intellectual property.  So the member is right to take this concern seriously.

With care, however, the act of creating an online archive of carefully curated restaurant menus, for well-articulated academic purposes, should be able to find protection in the line of "fair use" case law building on the 2nd Circuit's 2015 decision in Authors Guild v. Google,[5] which relates to the creation of online repositories.[6]

As the Court found in that case: The purpose of the copying [to create the online resource] is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals.

The key to scanning and incorporating menus still under copyright protection into an archival database of menus at a library or educational institution, while taking advantage of the fair use defense set forth in Authors Guild, is to do so in a manner that:

• Yields an asset that is useful beyond the mere replication of a single menu;
• Ensures the archive will not enable use of its images in place of a copyright-protected original text or image; and
• Uses an array of professionally developed standards to confirm and assert the academic and/or cultural value of the archive as a whole, and the inclusion of a particular work in that archive.

There are numerous techniques to achieve this.

First and foremost, the purpose of the archive should be developed and set forth on the archive in clear, well-developed terms. The database should not look like a group of menus simply gathered together by a person who happens to have made a collection of his favorite restaurants.[7] The cultural value and purpose of the collection should be stated in very certain terms, and consistently repeated throughout the archive's pages, cataloging text, and metadata.

Second, the function of the archive should be such that users can demonstrably benefit from the aggregated content and information. For instance, menus should be searchable by geographic region, type of food, notable characteristics, and other relevant factors...giving the aggregated content value beyond what is created by each individual entry.[8]

Third, the archive should adopt a standard approach to assessing and depicting the authorship, ownership, and copyright status of archived works.[9]

Fourth, the images themselves should be created so that a third party using the image cannot create a credible replica of the menu or the original originating restaurant's logo or copyright-protected content. A picture taken with a border, or the use of a watermark indicating that the image is part of the archive are some common ways to do this; technology creates many other and evolving options.

Fifth, since it will help mitigate damage in the event a copyright owner simply refuses to believe an archive has made a "fair use" of their content, the overall approach of the collection should be assessed using your institution's fair use assessment form, and that record should be kept. Why is that?  Being able to demonstrate a good-faith effort to establish that the use is fair can help mitigate damages, and can be a deterrent to a plaintiff pursuing a lawsuit all the way to a verdict.

Sixth, the "Terms and Conditions" of your online archive should feature a process for owners to report good-faith suspicion of copyright infringement, and your institution should have a registered agent as provided by the DMCA.  An example of this type of statement can be found in the DPLA's Terms and Conditions as of April 15, 2021: https://dp.la/about/terms-conditions. [10]

Seventh, if you haven't, consider the benefits of registering an agent under the DMCA, and if it's a good move for your institution, register (you can look up and see if your institution already has an agent here: https://www.copyright.gov/dmca-directory/).

And finally, to the extent possible, for steps five, six, and seven, work with your institution's attorney, who can connect all these steps and the academic activity they support with your institution's insurance and risk tolerance.[11]

So, with all that as background, here are my answers to the questions:

Can we scan and put online menus dated after 1977 (and especially more recent – up until 2021) if it is for educational purposes?

Answer: Yes, copyright-protected materials can be duplicated if the use is fair; by following the cautions above, an institution can set itself up to both create a highly useful and important archive, to claim fair use, and to mitigate damages in the event of a worst-case scenario.

If we do scan them, would we need permissions from every single chef/owner?

Answer: if the use is fair, there is no need for permission...and in fact, asking for it could be introduced by a plaintiff as an admission that you concluded you needed permission.

Now, a word of caution on this: if your archive is part of a larger institution, the other departments of that larger institution need to be alerted that just because an image is on your archive, that doesn't mean they can use it for a catalog cover, a web site image, or a poster advertising your institution.  After all, a use that is "fair" for an academic archive might not be so "fair" if it is on a brochure for a program or event (even if the program or event is not subject to a charge).  This is especially true since menus will often feature not only copyright-protected material, but trademarks (which, unlike copyrights, do not expire if they are in continuous use).

The copyright status of menus in general has always seemed murky to me, but I don’t even know where to go to find clear answers for this situation.

Because the menus themselves can be protected by copyright--as well as the individual elements in the menus--that "murkiness" is here to stay. Unless a menu is clearly in the public domain, it is best to assume that it--or some part of it--is subject to copyright, and remember that a restaurant's name and logo are its intellectual property, too.  The reason an archival initiative can make this assumption, and still hope to achieve its objective, is because by carefully and deliberately assembling those individually protected elements, they are creating a broader work with value beyond each individual element.

The value of a collection of menus is likely obvious to librarians, academics, and information managers.  But just as an example of how valuable such a resource can be, even outside the field of scholarship, I'll share a personal anecdote: while working on a case for a neighborhood fighting a fast food drive-thru in their dense, urban neighborhood, I used the New York Public Library's digital collection to find a menu for the "Little Harlem Hotel" in Buffalo NY.  The menu was part of the research we used to make the case that the neighborhood has a history worth fighting for. 

We lost the case,[12] but that menu helped create a vivid argument about the history of the neighborhood and its vibrant legacy, and that argument was energized by the archive.  An online archive of menus can be important in countless ways; finding the right legal recipe to make it happen is worth it.

Thank you for a great question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Many libraries, for a variety of good reasons, have security cameras.  Some libraries control those recording systems; others do not.  But no matter how they get there, when cameras are in a library, the questions posed by the member are critical.

Here is why: every library in the State of New York is bound by ethics and law to safeguard patron privacy.  Those obligations start with the ethics of the American Library Association[1] and the New York Library Association,[2] assuring patron privacy; these ethics find legal teeth in New York Civil Practice Law and Rules[3] and the Public Officer's Law.[4]

At the local level, patron privacy is often reinforced in a library's ethics statement, bylaws, and policies.  The practical duties of patron privacy are found in job descriptions (particularly of directors and IT professionals), and in membership terms between libraries and systems.  And it is part of every new employees' on-boarding.[5]

Because librarians and library leadership are so aware of this privacy obligation, and because assurance of patron privacy is a key component of information access, protecting patron privacy is often referred to in the library community as nigh-unto-sacred duty. So sacred, in fact, that I have met more than one librarian willing to go toe-to-toe with law enforcement seeking unauthorized access to patron data.[6]

While it takes a certain type of gumption to stand up to law enforcement, it takes another type (equally critical, but not as concentratedly defiant) of gumption to think about patron privacy in the context of software, landlords, and security cameras.  One takes a willingness to take a stand in the moment.  The other takes a willingness to think about details, to leave nothing to chance, and to ask a lot of very specific, very persistent questions.[7]

Both of these types of gumption are critical to the modern librarian, but only one gives you an easily dramatic answer to the question "how was your day?"

We'll leave the dramatic aspect of this for another time.[8]  Below, please find a boring--but vital-- checklist of steps and language to help a library answer the questions posed by the member, when a landlord is using cameras trained on library premises:

Step 1: Assess what the library's lease says about security and use of cameras

For libraries with landlords (remember, your library has a landlord even if you only pay a token amount of rent,[9]) it is important to have a written lease. 

Why?  Because, among other critical things,[10] that lease can provide clarity about who provides the on-site security (including a camera system) and set the stage for how the landlord and the tenant will manage security-related details.

In this case, the member has clarified that the security system will be controlled by the municipal (county) landlord.  Here are the details posited by the member:

These cameras will not be regularly monitored unless there is a reason to consult them. We will not be viewing the footage per a patron’s request. They will be maintained by our county facilities staff and consulted only in cases where a criminal act was committed.

These details, upon which the library will base its own actions, should be confirmed in the lease.  Such confirmation should include, whenever possible, a marked survey or map of the property, showing the limits of the camera's line of sight.

Step 2:  Assess if the lease terms and security camera arrangements promote the privacy commitments of the library

Just a note: while a municipality may procure and install a camera system with the intent to only monitor it "in the event of alleged criminal activity," in my experience, there is no way to enforce such a restriction, and some risk that the use of the cameras could change over time.

For instance:

• The recordings could be subject to disclosure under the Freedom of Information law;
• The recordings could be accessed via subpoena in the event of an alleged personal injury or other civil claim;
• The temptation for a town, city, or county to use the recordings internally (even for something as innocent as using them to check if a snowplow crew did a good job, or if a worker is arriving on time) might be hard to resist.

A library can't control this.  That said, when a camera system is installed, a library can request assurance that the municipality's internal policy, governing the cameras, include language:

• Alerting the users of the system to the sensitivity of patron records at a library;
• Confirming that the footage showing people entering and leaving the library is not regarded as a "library record" by either party; and
• Confirm that under no circumstances should the security cameras enable recording of information reflecting patron use of services.[11]

Once a library performs these two steps, it can answer the member's two questions:

First question: What type of permanent notification do we need to post about the use of cameras?

Once the library has written assurance that the landlord's use of recording technology will not result in the creation or disclosure of a library record, it is up to the director and board if, or how, your library should alert the community.

Personally, as a patron, I would appreciate a "courtesy notice" such as: "Your library records are confidential.  Please know that while our landlord has security cameras in [ZONES], the library does not allow recording that could impact patron privacy inside the building."[12]

OR (if the library makes use of its own security cameras): "Your library records are confidential.  Please know that our landlord has security cameras in [ZONES] and may use those for security purposes, but any security camera record maintained by the Library that shows use of library services is considered confidential and is used for library purposes only."

Second question: What major points do we need to ensure we include in our privacy policy?

The privacy policy of the library, or in the alternative, the minutes of the board, should reflect the details and privacy safeguards confirmed through the two-step analysis above. 

For instance, after the analysis is done, the board can note in the minutes: "Regarding the landlord's use of outside security cameras: As of DATE, the Library's landlord, NAME, will have security cameras observing certain outdoor areas, including library property.  The Library has verified that its lease, and the landlord's internal policy, prevent the landlord's security cameras from generating or disclosing confidential library records.  The public will be notified as to where the cameras are recording, and that such recordings are not confidential library records."

I appreciate that this review/confirm process can be a bit clunky.  However, it is also an opportunity to alert a critical partner (a landlord, and sponsoring municipality) to the importance of library-patron confidentiality, and to assure the public that privacy is a priority.  By seizing the moment to confirm that privacy is being properly considered and enforced, a library not only assures its ethics and legal compliance, but can create an ally in that eternal (and important) fight.[13]

I hope this approach is helpful.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

There are some really good, separate answers to this question.  I'll present them in the order I think would be useful to students and academics.

Answer #1: Clarity of ownership

Students own the academic work they author.  Even if they are completing an assignment with requirements tightly prescribed by a syllabus (such as: "Write an essay about four different civil rights cases heard in 2019; no more than 2,000 words; cite no less than four peer-reviewed law journal articles commenting on each case; identify a shared theme of the cases; conclude with a short paragraph as to which case is your favorite and why."^[1]), the end result--if the student is the  only writer--is the student's.

Registration is not necessary to claim a copyright any more, but it remains strong evidence as to the ownership of a work.^[2]  A student who authors something of importance to that student (such as a thesis, or a student film) should consider registration so they can readily assert that ownership.

Answer #2: Publicly establishing co-authorship

Not only do students own the copyright to their academic work, but students who are co-authors own that copyright together. 

This is true even if co-authors take on different tasks (such as: "Student 1 summarizes two cases, Student 2 summarizes two cases; each summary is 250 words; each cites to eight articles; they flip a coin to see whose paragraph on their favorite civil rights case is in the final version, and they proofread, edit, and finalize the document together."^[3]), the end result--if they combine their work into a single whole--is the students'.

This is also true of students collaborating with a faculty member or a faculty research partner--even if one author/researcher has more experience than the other.  So, while most academic collaborations might not warrant the time and expense of registration, if the end result could be valuable (either financially, or as an academic credit in a published journal or on a CV) the co-authorship should be established in a written collaboration agreement, and confirmed with a joint registration.

Answer #3: Being able to quickly fight infringement

Before I dive into this one, a bit of commentary on copyright and academia:

The world of copyright--and of students taking credit for their artistic and academic expression--is changing: more and more authors are authorizing audiences to use their work through mechanisms such as an “open license” through the Creative Commons.

As a person who (still) believes that "information [still] wants to be free," I see this trend as a positive, but I do have one concern with this generous/generative approach: sometimes, the use of the work might be...wrong. 

What do I mean by this?  While an author might assume that anyone wishing to use their work would do so for a reason that aligns with that author's own perspective, values, and vision, that is simply not always the case. Sometimes, a person or organization could make a use of a work that is simply unacceptable to the author.^[4]

Authors who think they could be impacted by this type of concern should consider using a copyright notice together with an easy way for would-be users to request permission, rather than an “open license.”  With this approach, an author/owner can still enable use, but will have a bit more control over what their work is associated with.^[5]

The concern over work being used in a way that is objectionable to the author (and isn’t a fair use), is one of the biggest reasons to register a copyright: if a writer/photographer/muralist/etc. really wants to stop someone from infringing their work, that work's copyright must be registered, because that is the only way an author can sue for infringement and obtain an injunction.^[6]

 Answer #4: Money

My final answer is 100% financial.

As the member's question states, authors no longer have to make a registration to claim a copyright. So what is the motivation to register?  In addition to answers "1" through "3," above, if a student/copyright owner, finding that their work has been infringed, wants to be able to sue for "statutory"^[7] damages, actual damages,[8] and attorney's fees, they need to have completed the registration of a published work prior to the infringement. 

Among many other things, these “statutory” damages, and the ability to recoup the costs of enforcement, are a motivation for a copyright attorney to take your infringement case without needing an up-front deposit.  So, it's another tool in the toolbox of copyright enforcement.

Final question

I believe answers "1" through "4" take care of the member's last two questions.  But what about the first one:

When is it advisable for an author/creator to register a work with the copyright office?

I don't usually play this card on "Ask the Lawyer," but I have to say, this is an almost unanswerable question.

For some people, the mere prestige of being able to look up their registrations at copyright.gov is important.

For others, the certainty of knowing they've done everything they can to protect their work from mis-use is critical.

And for still others--especially those planning to support themselves and their families through their intellectual property--registration is an important habit to ensure they are protecting their valuable property.   After all, copyrights are property rights left to a person's heirs after they die, just like money in the bank and real estate.

When I advise a client to register a Copyright, it is because they have flagged that work as important for some reason. For some, they might have already self-published it, and want to be able to control how their work is used. For others, it is because they plan to shop it or sell it, and they want to have optimal protection before they share it. And for others, it is because they suspect that the work has that "special something," and people in the future may copy it.

Any of these, and more, are valid reasons. For students, and those working in academia, the important thing is to be aware of your full body of work, to have clarity about its ownership, and --when you know you've created and own something important to you—to protect it.

Thank you for making sure today's students are thinking about their work and their intellectual property.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Your understanding is correct, but there are three additional details it is helpful to consider in this type of situation:

First, when a school confronts a concern like this, it should take a careful look at the license (the permission to use a copyright-protected composition) it purchased. 

This is because a license for sheet music can convey not only permission for on-site performance and broadcast, but also "recording" and "publishing" (posting).  I have observed that the range of these permissions will vary not only between publishers, but even between songs at the same publisher.  So, before recording (or deliberately not recording), check the fine print; you might have more (or less) permission than your district thought.

Second, it is good to consider why the school wants to make the recording and post it on the school website.  Is it to simply showcase the band on a page dedicated to the school's achievements?  Is it for fundraising purposes?  Or is it posted as part of a student newspaper or student club newscast?  If the post is part of an academic endeavor--especially one related to commentary or gathering news--posting part of a recorded performance could be a fair use. 

And third--though still on the topic of fair use--it is important to remember that "Circular 21" pertaining to "Reproduction of Copyrighted Works by Educators and Librarians" confirms that the Copyright Act allows educators to make:

"A single copy of recordings of performances by students...for evaluation or rehearsal purposes...."

Now, under no circumstances am I saying that this provision gives a school permission to record and publish (post) a copyright-protected musical work.  But a copy that is created incident to streaming^[1] can be retained by the school or teacher, and perhaps posted to an intranet, if they plan to use it for rehearsal or evaluation later. 

The important take-away from all of these is: your school may have options from not only within but additional to the license.  By assessing the precise permission your school received, the reasons for recording, and the reasons for posting, a school can consider their full range of options.^[2]

Of course, what copyright law can give, contract law can take away.  So, if your school has secured a license with a specific agreement that you will not make and post a recording, remember that's a contract term it agreed to, even if fair use would otherwise authorize the use.^[3]

I know, I know, thinking about copyright while planning to make the most of a performance can feel like allegro, adagio, adagio, allegro...

Just andante, like the question models, plan what you need, and you'll find a good pace!
Thank you for a thoughtful question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

First: thank you very much for your kind words and feedback.  Both are very appreciated, and I encourage users of the service to keep a dialogue going--the service is only as good as the questions and input that inspire it.

Second, just to recap my advice from the November, 2020 "Ask the Lawyer" referenced by the member, it boiled down to:

"With no clear bucket and no clear requirements, at this point, I have to answer that retention of proof of screening should be permanent."

Time, as they say, has marched on, and as the member states, the State Archives has offered some additional guidance on this topic.

Here's where I am at: I have reviewed the additional information referenced by the member, and despite that input, I am just not confident that the time periods in LGS-792 "c" and "d" are the right fit for records showing a public library's routine use of employee screening as part of their Safety Plan,[1] and I continued to advise that retention be permanent (at least for now).

Here are the three reasons for my continued hesitation:

Reason 1: LGS-1 792a-f have a clear application, and I am not certain a pandemic response is quite it

I appreciate that 792c, which is part of the "Public Health" section of the LGS-1, applies to a "positive report" of a screening, and 792d is for a "negative report of individual screened."

However, as the remaining sections of 792 show, 792 applies to screenings conducted for public health initiatives that also (might) use: summary reports, master indices of "participants," informed consent forms, and a log used to compile data extracted from the screen.  

Logs, data crunching, and "informed consent" are all part of a public health agency's toolbox for public health initiatives in response to concerns such as the transmission and impact of a dangerous virus like COVID-19.

But unlike the majority of such initiatives, which tackle challenges such as STD's, tuberculosis, and cancer, employee health screenings for COVID-19 symptoms are part of a much larger effort conducted as part of an emergency response.

Reason 2: Emergency response records under the LGS-1

Because of the "emergency response" aspect discussed above, when I first reviewed the original question, I considered the applicability of LGS-1 802 ("public health incident files") which pertains to "records related to public health emergencies, communicable disease occurrences, and epidemics." 

Under 802 (also referenced in the State Archive's resource linked by the member), the retention period for "[s]urveillance, investigation, and response records" created in response to an epidemic is THREE YEARS "after [the] outbreak has abated."

Are a public library's employee health screenings "surveillance, investigation, and response records" during a "public health incident?"  Since employers are required to report the names of employees who screen positive to their local health department--who then engage in contract tracing and outreach--I believe they could be, which debatably makes the retention period of employee screenings (positive or negative) three years.

However, even three years doesn't sit right with me.  Here is why:

Reason 3: The other reasons to keep the records

My original answer went a little beyond the scope of required retention, addressing not only the precise retention period that might be required by the NY Arts & Cultural Affairs Law,[2]  but also, the other factors a public library might wish to consider when determining how long to retain the records of employee screenings.[3]

These "other factors" include legal claims based on alleged non-compliance with required pandemic procedures, some of which could underlie personal injury claims, alleged civil rights violations or even a contract violation (which has a six-year statute of limitations).[4]

In the body of New York case law involving personal injury, civil rights, and contract claims against public libraries, one can see an interesting pattern: sometimes public libraries are treated as government agencies, and sometimes, they are not.[5]  This is why public libraries are often required by their municipality to have their own insurance.  This also means that while they might be held to the document retention standards of municipal agencies, sometimes, they won't have the legal protections of one.

My concern was--and strongly remains--that a process of purging documents that could demonstrate use of and adherence to screening programs will only disadvantage a library, even if the lost record was properly disposed of under the LGS-1.[6]  There are reasons beyond required retention to keep those records.  And without a clear directive on retention, I think it is best that a library keep a close hold on them.

In closing

I am sure no public library that documents input from State Archives about the applicable retention period and then purges negative screens after 1 year will be met with a penalty from the State. 

But as you can see in "Reason 3," the State is not my primary concern. 

With the benefit of 5 additional months since my original answer, I will take advantage of this chance to refine it to revise my above-quoted statement and change it to:

"Even when we get clear requirements, I have to answer that retention of proof of screening should be permanent, or at least until your library's attorney has determined that any advantage to the library created by retention is past, and your library has determined they are of no historical significance."

Thank you very much to the member for giving me the opportunity to re-visit this issue and to offer this updated (and hopefully improved) guidance.  I am sorry to cause you more use of storage room, but gratified to have the chance to offer this analysis!

Afternote:  Below are the relevant excerpts from LGS-1 792 and 802:

792 CO2 508, MU1 472, MI1 409

Results of screening programs, except lead poisoning

a          Summary reports on screening results: RETENTION: PERMANENT

b          Master index or listing of participants: RETENTION: 50 years

c          Positive report of individual screened, including statement of consent or participation   and authorization for release of information: RETENTION: 6 years, or 3 years after    individual attains age 18, whichever is longer

d          Negative report of individual screened, including statement of consent or participation   and authorization for release of information: RETENTION: 1 year

e          Log or other working record of screening and testing, used to compile statistics and other      data: RETENTION: 1 year

f           Anonymous H.I.V. test results and related records: RETENTION: 7 years

NOTE: Identifiable H.I.V. related records are covered by item nos. 743 and 745, and related laboratory records are covered by items in the Laboratory subsection.

802

Public health incident files, including records related to public health emergencies, communicable disease occurrences, and epidemics

a          Surveillance, investigation, and response records: RETENTION: 3 years after outbreak          has abated

...

NOTE: Appraise these records for historical significance prior to disposition. Records of unusual disease occurrences or epidemics may have continuing value for historical or other research and should be retained permanently. Contact the State Archives for additional advice.

MEMBER QUESTION

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.

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

Over and over again, I am floored by the care, tenacity, and creativity of the libraries determined to provide services in a time of pandemic.  New York's libraries just don't give up.  This question shows the mechanics of that fighting spirit.

So much of what we do in this pandemic comes back to why we are doing things in this pandemic.  For many libraries, the "why" of offering services is making sure their communities have lifelines to professionally curated information.

For this question, the "why" of asking for proof of vaccination is right there in the submission's core:

... so that we can have some sense of how many employees have been vaccinated, if that is to somehow figure into any decisions we might need to make re: staffing and proximity to others, or any considerations for the possible liability of "direct threat" to others by those who either choose not to get vaccinated, or are awaiting vaccination eligibility?

Let's take that "direct threat" part first.

Back on March 19, 2020, we addressed a question about employer (library) liability due to Coronavirus exposure.  Although much has changed since that time (we have vaccines), the basic recipe for liability has not changed: liability happens when a person/entity owes a duty of care to a person, does not perform that duty, and the failure results in damage.

Because if this recipe, it is essential for libraries to always know what "duty of care" they owe their workers, and their community.

In a pandemic, evolving data and resulting best practices can change the "duty of care" rapidly (No masks? One mask? Two?).

While many resources are aggregating and pushing out up-to-the-minute guidance on "best practices," there are only three places libraries in the State of New York should be drawing their duty of care practices directly from: the New York State Department of Health ("NYSDOH"), the Centers for Disease Control ("CDC"), and the Occupational Hazard and Safety Administration ("OSHA").

Right now, as of this writing, OSHA's 1/29/2021 workplace guidance[1] for mitigating the impact of COVID-19 lists 16 "elements" of an effective COVID protection program.  Here is what OSHA recommends about using awareness of vaccination status of employees:

Not distinguishing between workers who are vaccinated and those who are not: Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person. The CDC explains that experts need to understand more about the protection that COVID-19 vaccines provide before deciding to change recommendations on steps everyone should take to slow the spread of the virus that causes COVID-19.

So right now, the "duty of care" set out by OSHA expressly excludes relying on vaccination status to reduce the spread of the virus.  Rather, it focuses on providing and insisting on appropriate PPE.

That said, in the same guidance, OSHA continues to recommend allowing employees who self-identify as medically vulnerable to swap tasks to limit risk:

Offer vulnerable workers duties that minimize their contact with customers and other workers (e.g., restocking shelves rather than working as a cashier), if the worker agrees to this.

This means if a person, relying on their vaccination status, decides to not self-identify as medically vulnerable, the employer is not advised to offer them contact-minimizing duties.

There are other steps on the current OSHA list that the member is already doing.  By enabling the use of PTO for vaccination, they are following the guidance in element "14":

Making a COVID-19 vaccine or vaccination series available at no cost to all eligible employees. Provide information and training on the benefits and safety of vaccinations.

This guidance, I imagine, will evolve.  That evolution should be reflected in revised Safety Plans.

And with that said, let's answer the member's specific questions:

Can or should be asking for proof of vaccination from *all* employees, so that we can have some sense of how many employees have been vaccinated, if that is to somehow figure into any decisions we might need to make re: staffing and proximity to others, or any considerations for the possible liability of "direct threat" to others by those who either choose not to get vaccinated, or are awaiting vaccination eligibility?
 

Based on the current OSHA guidance, along with guidance from the EEOC, the answer to this is "yes," and then "no."  Yes, an employer can ask for proof of vaccination (whether acquired on PTO or off-hours).[2]  No, right now, it should not be used for assignment of duties[3] or with the idea of reducing possible liability.

Here is the member's follow-up question:

If it is desirable or permissible for us to obtain proof of vaccination universally, should compliance by the employee be optional/voluntary or compulsory?

Based on the current OSHA guidance, along with guidance from the EEOC, right now does not seem like the time to rely on vaccination status and data to make determinations about workplace risk management and safety.  So while requiring a notification of vaccination status may be permissible, it does not appear desirable if its purpose is to mitigate concerns about liability.

If, however, the motivation is to verify that the library is effectively encouraging the most employees possible to get vaccinated—simply for the employees' own personal health and safety—then yes, tracking those metrics (and any non-disability factors barring vaccinations) might not only be permissible, but desirable. In that case, the question is: does the information need to be tied directly to a particular employee, or is it just as meaningful if anonymous?

Which brings us to the member's last question:

But how do (or can) I share specifics on who has been vaccinated (versus who has not) with others, such as supervisors and managers?...I would be leery of divulging such information, out of concerns for maintaining employee confidentiality...

This HR manager knows their stuff!

First, yes: no matter what, never create a risk of trampling on employees' privacy.

Second: Right now, it appears that sharing such information is unnecessary.

In a December 18th, 2020 "Ask the Lawyer," I stated that a vaccine requirement should only be implemented if it is part of a well-thought-out, board-approved Safety Plan.  Right now, it appears that no Safety Plan should rely on a vaccine requirement to reduce transmission of the virus.  With that in mind, right now, it appears the safest course of action –both COVID-wise, and legally—is to encourage vaccination, but not require it, and if a library tracks it, only do it for purposes of encouraging more employee vaccinations (or finding out you've hit close to 100%).

Of course, here we are on February 26, 2021.  If you are reading this in March, or April, or that sunny, warmer time in the future, May and beyond[4], this answer might no longer apply.

Keep checking with NYSDOH, with the CDC, and of course, with OSHA.  At some point, requiring vaccination—or allocating duties by vaccination status—could become something expected of an employer.  If that happens, a library's "duty of care" could change, altering the threshold for liability, and the answer to these questions could shift—some subtly, some not-so-subtly. 

But we have had a lot of twists and turns in the Pandemic.  That "shift" may or may not happen.[5]  As I often say at my office, "the only plan we can make is that the plan will change."  And how do you plan for that?  By doing what this member has done: keeping employees' well-being and safety at the forefront, and adapting every time the data and guidance change. 

If your library does that, you'll be as safe as you can be.  And mitigate your liability.

Thank you for a thoughtful question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

I am always fascinated by the transformation documents can undergo, simply by operation of law, circumstance, or time.  For instance:

• Documents that are "education records" under FERPA can become simply "records," or "nothing" once the person to whom they pertain has died.^[1]
• Documents that are "private information" under New York's new(ish) SHIELD Act^[2] are no longer controlled by the Act if the digital copy is swapped for a copy on paper.
• Documents that use the "name and likeness" of a deceased performer, currently allowed, will be far more restricted when New York's new Civil Rights Law 50-f, which requires written permission for certain commercial uses, goes into effect on May 29th, 2021.^[3]

And of course, documents can be "in" copyright, and "out" of copyright, or restricted due to medical content, or under terms of non-disclosure...restrictions that can shift based on any number of factors. 

An educational institution considering levels of access and use of student-related documents^[4] has to consider not only these legal factors, but their unique policies.  Factor in fame,^[5] and the stakes get even higher. 

Because of that complexity, I could muse/write/talk on this topic for hours.  But let's focus on the member’s specific questions:

1) When should on-site access to historical educational records be allowed (if ever), with reference to FERPA? What about providing copies of historical educational records?

If a former student is not deceased, there can be NO release of FERPA-protected education records to otherwise barred parties without written, dated consent.

If the former student is known to be deceased—or the passage of time suggests they might be deceased—then the records are no longer protected by FERPA, and that restriction no longer applies.

But as the member points out, there are other considerations.

2) When should on-site access to unpublished, non-educational records related to former students be allowed, in reference to state and federal copyright and privacy laws, and possibly FERPA? What about providing copies of these documents?
 

This is an interesting question because unless the records we're talking about ("related to former students") only contain "directory information,”^[6] then they are by definition "education records" under FERPA.^[7]  That is because the FERPA is intentionally expansive.  So old bills, dusty admissions files, and antiquated (but often fascinating) "administrative" records, although not "educational," per se, are still barred from release by FERPA if they relate directly to a student.^[8]

BUT, as this question implies, FERPA isn't the only thing that could bar or restrict access to old records.  Copyright, privacy laws, and general prudence are all good reasons to not release institutional records unless there is a policy and process for doing so (like a policy for sending transcripts to future employers), or your institution is compelled to release them (like a judicial order or subpoena).

So, while a student will always have access to their records under FERPA, both former students and third parties should by default be barred from access or obtaining copies to records they are not entitled to.

Which brings us to:

3) Should we take a more risk-averse approach to high-profile alumni materials, or should our policies apply equally to all alums?

Many, but not all, educational institutions have internal archives—not formal "Archives" they hold in trust for the public (like the W.E.B. DuBois papers at University of Massachusetts),^[9] but rather, materials they regard as important pieces of their institution's history and identity, so deliberately retain.

For some, this may be a complex and far-reaching catalog of institutional history.  For others, it may be simply hanging onto every program for every graduation ceremony.  And of course, for many, it will be special handling of any material that is related to famous or noteworthy alumnae.

Whether formal and well-funded, or informal and not funded,^[10] every educational institution's internal archive should have a policy that covers: 1) that the archive exists to transition material from "records" into "archives;" 2) how those materials are selected; 3) how those archival materials are to be preserved; 4) how the archival materials are used and accessed internally; 5) how the archival materials are used and accessed externally; 6) the ethical standards and institutional values being applied in the overall operation of the archive. ^[11]

If an educational institution has in-house records of such magnitude that they warrant being their own archive (for instance, the Eqbal Ahmad papers at Hampshire College), yes, the development of that archive could warrant its own separate policy.  In that case, unique care would have to be taken to consider not only FERPA, but privacy laws, copyright (the author of an admissions letter is the copyright owner of that admissions letter...not the institution the letter was sent to, even if the institution retains the only physical copy).  

All that said, the end result need not be "risk-averse," so much as "risk-informed:" carefully assessing all the compliance concerns and risks,^[12] how does an institution create an archive that suits its stated purpose and conforms to institutional ethics?  Until an institution is confident it has reached the right answer, access to third parties should not be granted, and only need-to-know access should be granted to those within the institution. 

I would like to thank the member for this question, it is a good one.  And I think we may have reached a new milestone at "Ask the Lawyer"—a reply where the footnotes are as long as the reply!

Thanks.  I wish you a well-resourced and culturally rich archive, and continue positive alumnae relations.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This is a cool idea—aggregating and cataloging drone shots.   Someone fifty years from now will be very, very grateful for that type of work!

But as the member points out, there could be some technical or legal issues, namely: copyright, privacy, and security.  How does the library make sure none of those concerns negatively impact the project?

Let's take those in order.

Legal Concern: Copyright

This one is pretty simple: with one exception, the copyrights to pictures taken by a drone are owned by the operator(s) of the camera, who usually (but not always) is the same person/people flying the drone.  They are never the property of the area photographed (unless the property owner is also the photographer).

What is the "one exception" to that ownership?  If the photographer is taking the drone images as part of their regular job,^[1] the copyright will belong to their employer (for example: if the drone shot was taken by the photographer to illustrate a story in a newspaper).^[2]

Once the library establishes the copyright owner, the only copyright-related impediment to including the images in the catalog would be if the owner had sold the copyright, or given someone else "an exclusive license," since that would mean they could no longer license the images to your library.  Other than those complications, with the right agreement,^[3] permission and use should be simple.

Legal Concern: Privacy & Security

The "copyright" section, above, is fairly simple.  Things are a bit more complex when it comes to privacy and security.

There is a huge array of drone-shot content that I could see risking a violation of privacy or a threat to security.  Here are the most common I could rattle off at a cocktail party:

• The risk of the images being the result of "Unlawful Surveillance,"^[4] which is an “E” Felony in the state of New York.  "Unlawful Surveillance” is (among other things) taking a picture of a person dressing (or undressing) in a place where that person has a “reasonable expectation of privacy” (and they haven't agreed to pose for the picture);^[5]
• The risk of the images being a violation of a person's "right of publicity,"^[6] which is using someone's image for commercial purposes without their written authorization.  For instance, if the images were found on a site where they were being used for a commercial purpose.
• The risk of the images being the result of, or evidence of, trespass, harassment, and other criminal law violations that could result from a person deploying a drone over a residence, business, or area near an airport.

In addition to my "rattle it off" list, I did some research.  If we leave out the restrictions of reconnaissance and targeting drones, there is one other drone-related “no-no” to be wary of:

• The risk that the images are the result of harassing sea otters.^[7]

In most of these concerns, it is not the act of including the images in the catalog that would be the legal issue--but rather, that the images themselves could be proof of a legal violation.  We’ll address that more in the last section.

Legal Concern: FAA-restricted Areas

The Federal Aviation Administration’s rules for academic, hobbyist and other forms of non-military drone use are here:

https://www.faa.gov/uas/public_safety_gov/media/FAA_UAS-PO_LEA_Guidance.pdf. 

I won't re-hash them, but the FAA does not bar taking pictures—just flying at certain locations and times.^[8]  However, all operators--whether hobbyists or professionals--have to avoid certain areas at certain times. 

The FAA maintains a list of those areas, as well as a list of designated recreational UAS flight zones, available here:

https://www.faa.gov/uas/recreational_fliers/where_can_i_fly/airspace_restrictions/

This was so cool, I looked up my part of the state:

And now I know where not to fly the drone I don’t own.

Sample License for Use of Drone Pictures

Once you have confirmed that any drone shots your library would like to use are not: the result of or evidence of a crime, taken in forbidden air space,^[9] or otter harassment, here is a sample license for securing permission to include them in an online catalog:

IRREVOCABLE, NON-EXCLUSIVE LICENSE

[NAME] ("Photographer"), an individual residing at [ADDRESS], and at least 18 years of age, hereby gives the [NAME LIBRARY] (the "Library") an irrevocable, non-exclusive, transferable license to use an image entitled [TITLE], a copy of which is attached hereto as "A" (the "Image"). The permission to use the Image includes unlimited use in any format now existing or later developed.

Photographer represents and warrants that the Image is their original work and that to the best of their ability to determine the rights of no individual or entity were violated by the creation of the Image.

In consideration of the rights granted herein, Library shall at all times credit Photographer with authorship and ownership of the photo as follows: This image is © [NAME], [YEAR], and is used by the [NAME LIBRARY] with permission from the photographer, who may be reached at [email address].

Signed by Photographer: _________________________.

Signed on behalf of the Library: ___________________________.

A Final Word on Getting "Permission"

This question was pre-packaged to consider issues of permission/legal concern related to images generated via drone, so I have structured it to give primary consideration of those issues.

However, I would be remiss if I didn't stress that when assembling an archive or image collection, worries about permission shouldn't always be a threshold consideration.

Why is that?  If a library or archive crafts the parameters of an image catalog around the purpose of that catalog—around why it is important to gather a certain type of content, within a certain range of criteria—permission might not even be necessary. 

Concerns about permission and legality should not prevent the assembly of a resource that has academic, documentary, or investigative value.^[10]  And the more a collection or archive is shaped as a documentary, academic, or investigatory endeavor, the less the subject matter and content can pose legal concerns...or rather, the more protections^[11] the project will be able to avail itself of.

Taking advantage of those exemptions starts with having a very clear scope for your project, a written set of ethics, and a statement of purpose for the endeavor. ^[12]

My takeaway in this final part of the answer?   If your project is of academic, historical, or social value, don't let lack of permission be a roadblock.  Instead, just like the member does in this question, set up a clear scope for your project, and then tackle any reservations head-on.  This will lay the groundwork for a strong archive or catalog.

Posterity will thank you.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Earlier this week I was having a conversation with Brian, one of my paralegals, about the challenges we—our office and our clients—are facing due to the pandemic.  The conversation ranged from the personal (Brian is a musician whose band hasn't been able to play; my father-in-law is in the hospital and we can't go see him), to the professional (how to handle a contract breached because people can’t gather to do the work).  We concluded, in a very non-scientific way, that everything—whether it used to be easy, or was only a little bit difficult—is now "at least 30% harder" than before.^[1]

On the flip side, later that day, I spoke via Zoom with a friend about how the increased reliance on Zoom, FB Live, and other virtual fora has done wonders for democracy.  "People are going to meetings they could never get to before," said my friend. "People who would never have had time to get to City Hall, or would have faced actual physical barriers to getting in a building,^[2] are now able to attend."  And I optimistically thought: Cool...one thing that isn't 30% harder.

But these current times are not kind to optimists, and this question shows that, for some, even the Zoom-ification of democracy might make life at least 30% harder. 

And with that harsh reality established, let's take a look at the legal considerations of this question.

I.  Meetings during COVID

As "Ask the Lawyer" has addressed a few times^[3] since the onset of NY's response to the pandemic,^[4] chartered libraries are obligated to conduct their board meetings in compliance with the "Open Meetings Law (the “OML”). When New York went into social-distancing mode, the requirements of that law were modified by Executive Order to allow people to attend remotely, or through a blend of in-person and remote solutions.^[5]

The New York Committee on Open Government (the "COOG") addressed some of the practical considerations of these modifications in guidance issued on August 20, 2020.  In that opinion, the COOG stated that if a body subject to the OML resumed meeting in person while the executive orders allowing the modifications were effective, a remote attendance alternative must be provided.^[6]  As of this writing, modification is good through February 26, 2021.

II.  Attendance as a Trustee During COVID

The Executive Orders and COOG guidance clearly require enabling attendance through remote measures.  What the executive orders and COOG^[7] guidance are silent on is the scenario posed by the member: if a library board and community have transitioned to meeting 100% virtually, and one trustee, due to the technology, isn't able to attend, is the board able to address that under the law?^[8]

I have found no guidance precisely on point, but below is my legal analysis, and what I hope will be helpful guidance.

III.  Analysis

Library trustee service is governed by the laws of New York and a library's enabling legislation, charter, bylaws, and policies (in that order).  Aside from customized provisions in a charter, bylaws or policy, the law has two means of addressing serial trustee absence:

Means #1: "Unexcused Absence"

Per Section 226(4) of the Education Law,^[9] trustees who are absent for three consecutive meetings without a "satisfactory excuse" for missing the meeting are "deemed to have resigned."  That is why, when a trustee lets a board know that they are unable to attend a meeting (virtual or otherwise), and they don’t show up, they are noted on the minutes as "excused," since to do otherwise could put the trustee on a path of resignation-by-law.^[10]

Many NY library bylaws have this language in them, but it is not required...since it's in the law.  But what isn't in the law is what a board can regard as a "satisfactory" excuse. Is the excuse of a trustee who can't attend remotely, due entirely to technology, "acceptable"?  Only a board can say.  In a very rural community, it might be.  In a highly wired urban area with free wi-fi, where a trustee could perhaps even borrow some library technology to attend the meeting, it might not. So long as the reason is not discriminatory,^[11] and not contrary to the bylaws or being unfairly applied, a board has some discretion in what type of reason they are "satisfied" by.

But I can say this: if the absences aren't noted as "unexcused" on the board minutes, a board should not contemplate this as a basis for implied resignation, since the law is clear that this must be based on absence that is unexcused.

Means #2: "Neglect of Duty"

The other statutory basis for removal of a trustee is found in Section 226 (8) of the Education Law: "Removals and Suspensions,” which states that a board may:

“Remove or suspend from office by a vote of a majority of the entire board any trustee, officer or employee engaged under special contract, on examination and due proof of the truth of a written complaint by any trustee, of misconduct, incapacity or neglect of duty; provided, that at least one week’s previous notice of the proposed action shall have been given to the accused and to each trustee."

As you can see, this section (a provision often replicated in library bylaws) creates a more intricate process than Section 226(4): it requires a written complaint, advance notice, and a majority vote of trustees to confirm a removal. 

To use this provision to address nothing more than repeated absence due to technical issues is probably overkill, unless the board finds that the mounting excuses—while perhaps initially acceptable—are causing real harm to the library or the operations of the board.  Before resorting to this step, it is always good for a board president or other leader to have a conversation with a board member and ask if they would like to offer their resignation (for some, this request may come as a relief).^[12]

That said, a "neglect of duty" removal doesn't have to be hostile.  It can simply state that a trustee has failed to attend X number of meetings, has been unable to fulfill their duty as a trustee, and that to ensure the board has the benefit of a fully participating body, the board must consider removal. Give proper notice of the “complaint,” make sure the trustee has a chance to be heard, and vote.

IV.  Guidance

So: Is removal an option?

Yes, removal is an option, but as can be seen, when considering such removal, a board should pay close attention to the documentation that it is basing its decision upon.

I am very glad the member who submitted this question is being so thoughtful about this.  It is clear from the law, the pandemic-related Executive Orders, and the COOG guidance, that it is the public policy of the State of New York to encourage attendance and access to library trustee meetings, even during difficult times. 

While trustees have a different set of rights and obligations than the general public, an effort to orchestrate meetings to be free of pandemic-created impediments to trustee participation is clearly within the spirit, if not the letter of the law. To that end, if a library is open and if it has a Safety Plan that could allow a capacity-limited physical component of a virtual board meeting (perhaps set up in the room where the trustees used to meet, if possible under the Safety Plan), it is worth considering allowing trustees to attend in that manner—even if the rest of the trustees appear virtually. 

But to be clear: that is not what the law requires.  And if everything feels at least 30% harder these days, every library needs every trustee to be giving 100%.  So, if steps need to be taken to ensure a board has its full capacity of engaged trustees, just double-check your bylaws and documentation, and do what's best for the library.

Thanks for a difficult but very important question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

I am glad the column is helpful, but this issue really shows the limits of the law!

Before I say what I mean, I need to emphasize three things:

1. State and federal law often protects employees who complain about "working conditions."[1] Since an odor is a "working condition," no matter what position a library takes on "bad" smell (barring it as a disturbance, allowing it as a matter of mission, or a solution somewhere in between), leadership should carefully listen to employees' concerns.

2. While my November 17th answer mused there are several compelling reasons to opt for a more inclusive solution (like use of a "scent free" zone), I want to re-emphasize: that is not what the law requires.  Rather, the law requires that people not be barred from library access on the basis of disability or protected characteristics.  Since that is a slippery slope, not barring people on the basis of smell (or using a "scent free zone") is a good way to stay in a legally safe zone. 

But barring disturbing odors, if done carefully, is still allowed by law.

3.  Although I imagine that the member submitting the question didn't mean "taking sides" literally, because it is so critical, I have to say: library employees should never perceptibly "take sides" with one patron against another patron, even if they privately agree that a patron's odor is off-putting.[2]  This is because if access is going to be limited, the library must be able to show fair and equitable treatment.  An employee with a concern, of course, can take it directly (and discretely) to their supervisor.

So with all that said...

From the legal perspective, the key on the employee side of the "smell" issue is to listen to employees' bona fide concerns about their working conditions.  This is true whether your library decides to bar certain smells as "distractions," or to find creative ways that, ultimately, might expose an employee to an unwelcome smell.  Above all, whatever approach is taken, it should be clearly set out in a written policy, and decisions under that policy should be well-documented.  And to address concerns like the one raised by the member, to the greatest extent possible, the policy should be written with the input of employees, who should also be trained on how to work with it.

But that said...

Does this mean some employees, believing their library should have a more inclusive policy, might have to enforce a restrictive policy?  Yes.

Does this mean some employees, not liking their library's more inclusive policy, may have to work near a person whose smell they do not like?  Yes.

This is what I mean by "the limits of the law."  The law can help libraries foster positive working conditions and employee morale—to a point.  After that, it is down to leadership, well-developed polices, and good employee relations.

This is why people often like their HR director more than their lawyer!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

In law school, one of the first classes you take is "real property."
 

I remember thinking, back in that first semester before my brain got converted into that of a lawyer: "Real" property?  What...is there something called UNreal property?

Of course, nowadays when I see questions like this—about land, and land rights, and the laws impacting them—I think "Oooh...a question about real property!"

Warn your kids: this is what three years of law school will do to you.

I appreciate questions about real property, because I really enjoy working on issues involving land, and land rights, and the laws impacting them.  Whether it's roads, old buildings, or construction matters, some of my favorite work requires reviewing surveys, obsessing over title abstracts,[1] and poring over inspection reports.  And don't get me started about design-build contracts.

In this case, many of the fundamental considerations of this submission were addressed in a previous "Ask the Lawyer" from 12/13/2019.  So as a primer, readers may want to take a look at that previous answer, where we discuss some of the fundamental things a library has to consider when selling real property.

This background allows me to jump right into the specific concerns of the member's questions:

Question 1: "How much autonomy does the Library have in accepting and selling this property?"

Answer: unless there is a specific provision in the library's charter, bylaws, or contract with its sponsoring municipality that expressly creates some type of co-ownership, the library, as the sole owner, has ALL the autonomy.

Question 2: The sponsoring municipality feels that perhaps it is their responsibility to handle the sale according to their regular procedures, including a permissive referendum.

Answer: unless there is a clear legal claim that puts title entirely or partly into the municipality, the various state laws governing sale of municipal property do not apply; rather, the sale is governed by Education Law Section 226.

Question 3: Finally, who controls the proceeds from the sale?

Answer: the board of the library, and no one else.

To the member's brief, pithy questions, I will add a question of my own:

Question 4: Why am I so confident about the answers to questions 1 through 3?

Answer: because I have researched the following:

• The relevant state laws and regulations of the State of New York
• Case law regarding cases involving public library sale of property
• Relevant guidance from the State Comptroller
• Relevant guidance from the NY Attorney General
• Relevant guidance from the State Education Department

These materials span over sixty years of library law-making, and I am not going to summarize them all here.  But for those who wish to dive a little deeper into this topic (buckle up, unless you, too, are interested in real property, I've been told this is pretty boring), here is a brief overview:

Education Laws 260 and 226, together, confirm that the trustees of every library chartered in New York,[2] may "[b]uy, sell, mortgage, let and otherwise use and dispose of its property as they shall deem for the best interests of the institution..."

Here are some examples showing how this legal structure has been applied:

In 1953, the NY State Comptroller opined that when a village and a library jointly acquired property, they were co-owners.[3]  This means a library can co-own a library building along with its sponsor (much as two individuals can co-own a parking lot).  If that is the case, the law and regulations applicable to both entities would govern a sale.  However, that same year, the Education Department confirmed that a chartered library is a separate entity from its municipal sponsor.[4]  

Flash forward to 1976, when the Comptroller stated that a school district library[5] could acquire a building on its own.[6]   Since that time, there hasn't been a lot of case law over who owns library buildings:[7] like any other stand-alone, not-for-profit education corporation, a library can own its own building.

That said, while the New York Education Law empowers public libraries to buy, sell, mortgage, and otherwise dispose of their real property, there are other laws and regulations controlling how the resulting assets can be used.[8]  This is why a public library (or any library) should not buy, sell, lease, or arrange for capital improvements without its lawyer involved (that goes double for accepting a bequest or a restricted donation of land or a building, which has not only legal/regulatory considerations, but could also be fraught with the drama that can accompany wills and transfers of land).

Now, in the midst of all this ownership/autonomy, it is good to remember: not all public libraries own their buildings.[9]  Some libraries are tenants of their sponsoring municipality (to check the ownership of the building, check the deed or the real property tax records for your county).  But even a library that is a tenant of their municipality buildings can own a separate building—if some nice person or entity decides to give them one.

So in a case like the one described by the member, the most useful thing would be to 1) check the library's charter; 2) check the documents giving title of the property to the library; and 3) make sure the lawyers for both the municipality and the library (and the buyer!) are on the same page about ownership and salability.  As the lawyers do their "real property" thing, so long as the title is "clear" and solely in the name of the library, it is the library who owns the property, and the board of the library who decides if/how to sell it (in a way consistent with its charter, bylaws, and charitable status....on that, see the "Ask the Lawyer" from 12/13/2019).

Thank you for a great question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

For those readers who haven't been following it, the "CASE Act" authorizes the federal Copyright office to create a "small claims" division for the adjudication of "small" (under $30k, and no award of attorney's fees) copyright infringement cases. [1],[2]

Like the member, I know many attorneys who think this legislation is "awful."  I also suspect that if I took an insurance carrier and a publisher out to a bar, they would think it is "pretty cool," and would toast the efforts of the well-paid lobbyists who worked so hard to ensure it got passed this December along with the federal budget.

There is a LOT of writing out there on the CASE Act, so I am going to focus on the practical aspect of the member's question: when it comes to the inevitable trolls[3] who will use genuine claims and fraudulent allusions to this new method of bringing copyright claims, what should libraries and other information professionals be aware of?

The good news is: even with new legislation, your response remains the same: keep calm, and deal with a copyright infringement allegation step-by-step. 

What are those steps?  Updated for a CASE Act-containing world, here is the "Ask the Lawyer" "Copyright Troll Begone!" Emergency Response Procedure.[4]

"Copyright Troll Begone!" Emergency Response Procedure

Step 1: Receiving the complaint

If your institution receives ANY assertion of copyright violation (by email, mail, phone, in person, or fax), do not immediately reply to the allegations.  Never!

If the accusation is in writing, simply move on to step "2." 

For interpersonal outreach (on the phone, in person, in yet another Zoom meeting),[5] state, "I am making a note of your concerns.  What is a good number/email to reach you at [at least one day later]?"  NOTE: Even if they keep trying to get you to argue/response/engage, don't take the bait, just set up a time to reply.

Step 2: Dealing with the complaint

Okay, you have in writing before you (either as submitted, or in your notes) an allegation of infringement.   It is either: i) a scam; ii) an honest but empty threat; or iii) a problem.  To determine which of these options it is, you need to either consult your lawyer, or do some research.

Step 3: If you conclude it is a scam

There are copyright-based scams all over the place, and with the CASE Act, the scammers will have yet another point of entry for their menacing but baseless threats.  "You owe us $150,000!!!"  "To avoid prosecution, contact us NOW."  "The CASE Act means we can sue you without registration, so we're attaching your bank account for $30k."  Scare tactics.  Bogus claims.

If your attorney or your research shows that the complaint you received is illegitimate, I encourage you to send a copy of it to the New York Attorney General,[6] and to the Copyright Office.[7]  Then you can stop thinking about the claim, and move on with your day.[8]

Step 3: If you conclude it is not a scam, or can't tell

If you examine the complaint and it seems legitimate, the only thing I can say is: consult your institution's insurance carrier and/or your attorney as soon as possible. 

Even if you think your use was "fair" (as in, not an infringement), or you can show you had permission, there is too much risk in saying something that could be problematic later, if you respond to the allegation without a pro.

Step 4: Ensure the Hand-off

Make sure that whoever is handling the matter for you (attorney, insurance carrier) takes responsibility for the next steps, in writing.  If an attorney is handling it, a letter or e-mail confirming they are representing your institution in the matter is essential.  If your institution's insurance carrier is handling it (many general liability policies cover this...do not forget to check!), you will get a notice of "tender," telling your library that there is coverage, and if/how they will handle it (including if legal counsel will be assigned). With that assurance in writing, you are ready to get back to the business of information management.

Step 5: Check in this time next year on the CASE Act

As the blogger cited by the member writes, the CASE Act was only passed this December.  Implementing it will take the federal Copyright Office some time.  Or as they put it[9]:

The Office must establish the CCB by within one year of enactment, unless the Register of Copyrights, for good cause, extends the time period for no more than 180 additional days. The Office will soon begin implementation activities. Proposed regulations will be published in the Federal Register and the Office will provide updates through its NewsNet service.

We'll keep an eye on the developing regulations here, and send a "CASE Act" update this summer or early spring.

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

Put your sneakers on.  These questions require us to jump through several analytical hoops.

Hoop 1

First, a library that is part[1] of a chartered museum or historical society in the state of New York, when weeding materials, must figure out which, if any, of the materials within the library are part of the museum's official collection, and thus controlled by the museum's "collection management policy."

Most museums and historical societies maintain good records of this, and it's a yes-or-no question, so this first hoop is fairly simple.

Hoop 2

With collection status determined, any materials within the library that were "accessioned" (brought into the museum's official collection) under the collection management policy must also be "de-accessioned" per that policy,[2] before they can be weeded from the library's collection and thrown out,[3] donated or sold.

Any materials that were not accessioned into the museum's official collection are still assets of the chartered entity, but do not have to go through the de-accession ritual prior to what comes next.

Hoop 3

Next, the museum or historical society must determine if there are any conditions or restrictions on the materials, such as a donor agreement, a grant, or other contractual terms.  If there are any restrictions, those must be addressed.

Hoop 4

Next is to confirm ownership.  If the museum doesn't have a clear record of how the materials were acquired (either by purchase or donation), or if they were loaned to the museum and never picked up, the museum must follow the procedure in Education Law 233-aa to assert its ownership before it can consider any removal.[4]

Hoop 5

After doing what's needed to establish the materials' status, the museum can then--as governed by its own charter, bylaws, and policies--either 1) donate the materials to another charitable organization (transfer for free to an individual or for-profit organization could cause problems), or 2) sell[5] them for fair market value[6] to any organization it wishes (profit, non-profit, or individual).[7]

Contingent Hoop 6 (the "de-accession hoop")

Of course, sale or donation of any items that started out in the collection will be governed by the factors in the regulations governing de-accession (8 NYCRR 3.27).  This consideration was already raised in Hoops 1 and 2, but is so critical, it is worth mentioning again.

Contingent Hoop 7 (the "233-aa contingency hoop")

If the materials were "undocumented property" or "unclaimed property" under 233-aa, and the materials are to be sold, there is an extra consideration: any proceeds derived from the sale of the materials can only be use for "the acquisition of property for the museum’s collection or for the preservation, protection, and care of the collection and shall not be used to defray ongoing operating expenses of the museum." 

And with all those hoops complete, there you have it: a full cardio workout, based on assessing a museum's library's property's[8] status under the law.

I hope this analysis and advice are helpful (and good exercise).

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

There are a lot of legal technicalities hidden in this question, but before we get to them, here is my overall advice: The more your library generates unique, custom content showing the people, personalities and experiences of your library on your social media,[1] the more you can include copyright and trademark-restricted content in social media promotions.

For example: If a library takes a picture of a new DVD, with only the cover content in the photo, and posts it to social media, that could potentially trigger some type of copyright/trademark concern.  But if that same library takes a picture of their librarian holding that same DVD while giving a thumbs-up ("This new movie is librarian-approved!") that concern is greatly reduced, since the proprietary work is only part of the message.

This same guidance applies for book covers, new games, and other media packaging.  Since copyright and/or trademark can both be invoked to protect any of that content (although just how protected the content is will vary from item to item), displaying it on social media as part of your library's overall personality and outreach is much better than using a photo or scan of the book/cover on its own.  When you don't have permission, use of a proprietary image as part of a related but larger social media message ("We have this great book!") is generally a safer approach to image use.

Now, at this point I must note: the "image use" in this question is different from using cover content (let's call them "thumbnails," for nostalgia's sake) supplied by providers like Overdrive for your library's online catalog.  Use of thumbnail content in your catalog (and thus, generally, on your library's website) is likely restricted in the license from the provider, but supplied with the understanding that the thumbnails will be viewed via your library's website as part of the service.[2]

Now, as to announcing movie nights...this question gave me a double-take, because neither copyright nor trademark, in and of themselves, bar listing the bald fact that your library is hosting a (licensed) movie night, and the title of the movie—whether via a poster, or via social media.[3]

But since I have never known a librarian to submit a baseless question to this service, I dug a bit more, and found this statement[4] in the Swank guidance for libraries using their "single event' license:

"If the public library’s social media accounts are set to private, the title may be used. If the library’s social media accounts are not set to private, it is recommended the title not be included. The movie event may be promoted on the social media pages with a link to the title on the library’s website."

So to be clear: copyright doesn't forbid promoting the movie, but restrictions on promotion could be a requirement of the license (the contract allowing your library to show the movie), or (as the case here) a "recommendation"[5] of the licensor, likely at the request of the trademark holder.  This is one of the more bizarre "recommendations" I have run into in the contract-analysis business, and I thank the member for sending it along!

And that's it.  Again, the take-away from this answer is: the more your library generates unique, custom content showing the people, personalities and experiences of your library on your social media, the more you can include copyright and trademark-restricted content in social media promotions as a component of that larger messaging.  Along with being a type of risk management,[6] this will also lend itself to your library having better, richer, and more interesting social media, so it's a win-win; sometimes the law and quality control go hand-in-hand.

And now, to go watch the new [TITLE OF MOVIE REDACTED] with my family.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Thank you for this question.  The LGS-1 is one of my favorite rabbit holes to explore.

I took a look at Schedule Item 596, which applies to "Borrowing or loaning records."  I have put a screenshot of the section, as it appears in the schedule as displayed on the NY State Archives web site: http://www.archives.nysed.gov/common/archives/files/lgs1.pdf

As you can see in the screenshot, 596 fixes the retention period for borrowing or loaning records for school libraries as "0 years after no longer needed."

"No longer needed" is one of those phrases in the LGS-1 that renders the retention period variable.  This flexibility can be both helpful and frustrating, since a district, BOCES, or school library must determine, via policy, what "needed" means.

This can vary from place to place, but in all instances should be based on a determination of what is meant (for the district/BOCES/or school library) by "need," and then confirmed in a policy.

After that, best practice is always to purge records once their retention period is over, and for something as deeply connected to ethics, compliance and privacy as library records,[1] that is doubly true.  For school libraries, that retention period is zero, once the records are no longer needed.

Therefore: determining how long student library borrowing records are "needed" (something that may vary from library to library, district to district, BOCES to BOCES), and then purging the record as soon as possible,[2] is a good way to use the LGS-1 to enhance an institution's commitment to privacy.

Thanks to the member for bringing up this nuance.  These issues are at the crossroads of ethics, compliance and automation, and require continuous and careful attention to detail and resulting policy.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Non-governmental employers

Recent changes to the Labor Law make the "private" part of this question easy to answer: since all employers must now offer all employees sick leave (unpaid if the employer has under four employees, paid if five or more), an employee may use that sick leave for the purpose of obtaining medical care, including to get vaccinated.

If a non-government-agency employer would like to go one step further and not require an employee to use accrued sick leave, but instead, give them a day (or two half-days, for the vaccine that requires two shots) for the specific purpose of being vaccinated, that's fine, too, so long as the library considers vaccination of employees to be part of its Safety Plan (making the vaccination a work activity, and not a prohibited gratuity from a charitable entity to a private person).[1]  But there is no obligation to do so.

Small but critically important exception to this rule: if your library employees are in a union and their time off is subject to a collective bargaining agreement, you must check and abide by that agreement, or develop a special provision with the union.

Public libraries

Okay, this is where it gets tricky.  For public libraries that consider their employees to be employees of a "government agency," hang on one second, we'll address what you can do in the paragraph below.  For all other public libraries, who must follow the new sick leave law, the section above applies.

Public Libraries Who are "Government Agencies"

For public libraries whose employees are considered employees of their sponsoring municipalities,[2]  there is no obligation to "give" paid time out of the library to get vaccinated unless it is in a collective bargaining agreement or your government subdivision's response plan.  However, if your library is allotted vaccine as part of a rollout to public employers, and the entity you are getting it through (sponsoring municipality or school district) is encouraging vaccination by allowing it to be done on work time, that is an option to consider.  Further, if your library develops an employee vaccination rollout plan as an addendum to its Safety Plan[3] and would like to offer up to a certain number of hours of paid time out of the office to encourage vaccination, if part of a plan, that can be allowed (but is not required).[4]

Small but very important exception to this rule, just like with "private" libraries: if your library employees are in a union and their time off is subject to a collective bargaining agreement, you must check and abide by that agreement, or develop a special provision with the union.

For All

Issues like this a) affect mission and morale, b) relate deeply to employee and public safety, c) can impact a library's budget, and d) are fraught with compliance concerns, so any decision is best to tie to your library's Safety Plan,[5] and to have trustee approval (confirmed by a vote).

I continue to admire the care for others, tenacity, and attention to detail members of the library community bring to their questions as we get through this pandemic together.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

The member's caution shows how important it is to get this one right.

Before delving into it, I want to say: for public libraries with a union, this is one to confer with union leadership on. 

For public libraries without a union, it will be good to think about not only your internal prioritization, but the messaging around it. 

And for all libraries connecting their employees to vaccine, this is one to plan in careful coordination with a board committee, your lawyer, and your local health department.

With the right participants at the table[1] and careful consideration of ethics and privacy, finding the right plan for you won't be easy, but you will get it right.

This question is about the "ethics and privacy" part of the process. For a public institution that will be part of this rollout, the State of New York's own ethical statement and guidelines for prioritization are a good place to start.  Here they are:

New York State based its COVID-19 vaccine distribution and administration process on ten guiding principles.

1. Safety: New York State will only endorse and distribute a COVID-19 vaccine if it is determined to be safe and will only be used according to the indication under which it received its authorization or license. This includes continued monitoring and reporting of adverse events after the vaccine is licensed and administered.
2. Effectiveness: New York State will only endorse and distribute a COVID-19 vaccine if it is demonstrated to be appropriately effective in the populations intended for use.
3. Expert approved: New York State will rely on the advice and counsel of recognized clinical experts and scientists to review and approve the safety and effectiveness of every vaccine that is authorized by the federal government for distribution.
4. Equitable & clinically driven distribution: New York State’s COVID-19 vaccine distribution plan will be based on standards that prioritize people at higher risk of exposure, illness and/or poor outcome. Unrelated factors, such as wealth or status, will not influence distribution.
5. Transparency: Throughout the COVID-19 crisis, the state’s daily public presentation of facts and reliance on science and medical expertise helped build public trust and confidence in government action. New York State will continue to be transparent regarding all aspects of the COVID-19 vaccine distribution, administration, and monitoring process to ensure New Yorkers are fully informed.
6. Use of Data: Coordination of a successful vaccination program will require robust tracking, data and analytics capabilities. New York State will use powerful data and information technology platforms to guide all parts of the COVID-19 vaccine distribution and administration process to maximize safety, accuracy, and efficiency and meet all federal reporting requirements — all while maintaining patient privacy.
7. Privacy and Patient Safety: New York State will ensure all vaccination processes prioritize patient safety, and all information systems guarantee patient privacy. Vaccination does not take away the importance of other public health measures that have served us well in the fight against COVID-19. New Yorkers will be urged to continue to practice social distancing, mask wearing, hand washing, and other measures.
8. Partnership, Coordination & Public Outreach: New York State recognizes that coordination with local organizations and community providers is essential to the safe and successful distribution and administration of COVID-19 vaccines. The state’s outreach efforts will especially focus on reaching underserved, hard to reach, and vaccine-hesitant populations, as well as those at highest risk for COVID-19 infection and poor outcomes.
9. State Leadership: New York State expects federal engagement on vaccine vetting, distribution, administration, and funding. However, regardless of the level of federal engagement, New York State will take all necessary steps and require local coordination with the state’s centralized approach to ensure an efficient and organized vaccine distribution.
10. NEW YORK TOUGH: Throughout this COVID-19 crisis, New Yorkers have shown that there is nothing we cannot do if we work together as one community. Our approach to the COVID-19 vaccine will be tough, strong, united, disciplined, and loving.

Informed by these guiding principles, each library can consider its unique policies, Safety Plan, and if relevant, collective bargaining agreement (union contract), and confirm its own internal method of prioritizing.

While these variables will make each library's position unique, the best way to confirm and follow the method of prioritization they decide on is to:

            1) Adopt a written policy;

            2) Document that it is being followed consistently;

            3) Notify the employees and the public as to how the process will be implemented.

Here are an "example policy" and "example notice" drawn from the State's approach:

[**START EXAMPLE POLICY**]

[NAME] Library Vaccine Distribution Policy [Employees Only]

[**EXAMPLE ONLY**]

Policy

In step with the method of prioritization being applied by the State of New York, [NAME] Library's COVID-19 vaccine employee distribution plan will be based on "levels" that prioritize people at higher risk of exposure, illness and/or poor outcome.

Definitions and Levels

"Higher risk of illness and/or poor outcome" means that a medical condition makes it potentially more likely the employee could become ill, or, if they do become ill, are statistically more likely to experience a poor outcome; such need shall be considered "Level 1(d)." 

"Higher risk of exposure" means those who, working within the parameters of the Library's current safety plan, PPE requirements, and operations:

• Perform any function or share any criteria required for vaccination during the New York Department of Health's Vaccine Distribution Phases 1a and 1b (including those 65 and older), but did not obtain the vaccine; such need shall be considered "Level 1(a/b)".
• Must report to work on site and physically interact with the public as part of their routine job duties, and/or handle circulating materials; such need shall also be considered "Level 1".
• Must report to work on site as part of their job duties; such need shall be considered "Level 2".
• Performing all work duties 100% remotely; such need shall be considered "Level 3".

Procedure for 1(d) requests

Any Level 1(d) requests for vaccination shall be confidential.  When supplies are available to the Library, employees who self-identify as at "higher risk of illness and/or poor outcome" may request COVID vaccination through the same confidential process used to request and arrange disability accommodations, with the understanding that during this time of extra burden on medical providers, documentation of the condition creating the need may be supplied after vaccination (please supply a note from your physician when you are able).

A request for vaccination may be considered separately or together with accommodations based on disability.

Procedure

Any employee may request vaccination. 

When supply and demand require prioritization, the order of priority shall be:

          Levels 1 (any type): highest priority

          Level 2 and with a member of their immediate household with higher risk of illness and/or poor outcome: second highest priority

          Level 2: third highest priority

          Level 3 and with a member of their immediate household with higher risk of illness and/or poor outcome: fourth highest priority

          Level 3: fifth highest priority

          All others: lowest level of priority

If further prioritization is required to prioritize between Level 1 employees, the order of priority shall be:

          Level 1 (a/b)

          Level 1(d)

          Level 1 (any type) and with a member of their immediate household with higher risk of illness and/or poor outcome

          Level 1

If an employee is selected for vaccination through the library, the employee will be expected to follow all the rules and procedures for vaccination. 

Employees not selected will be placed on a wait list in order of priority.[2]

The Director, or their designee, shall be responsible for compliance with this policy.

         [**END EXAMPLE POLICY**]

[**START EXAMPLE NOTICE**]

[NAME] Library Vaccine Opportunity Notice

[**EXAMPLE ONLY**]

DATE: [INSERT]

The Library has been issued # doses of COVID-19 vaccine.  We expect to be able to initiate vaccinations on DATE.

As determined by the attached policy, the Library will be offering vaccination through our allotment to as many employees as possible. 

Vaccination is voluntary.

Please transmit your interest in being vaccinated and your assessment as to the level of priority you fall into (see the policy) to name@address by DATE.

For example: "I am voluntarily requesting vaccination through the library's allotted doses.  I believe my priority level is "1."

Requests that include medical disclosures will be treated confidentially.

If the library is able to grant your request, we will send you information regarding next steps, and you will be expected to follow all the rules and procedures for vaccination.  Employees not selected will be placed on a wait list in order of priority. 

Supplies are limited.  If you have the opportunity to be vaccinated through another supplier, we encourage you to do so.  Employees may use up to a day of sick leave for each vaccination session.[3]  The library places the highest priority on the health of our employees.

[**END EXAMPLE NOTICE**]

Final notes from the lawyer:

These are early days for the vaccine and vaccination rollout.  While being prepared with a policy is the right move, prior to announcing any prioritization, after adopting a policy, be ready to be flexible, since the situation is changing rapidly. 

As with all major policies, this is one that ideally will be adopted via a vote by your board.[4] Here is a sample resolution for you:

BE IT RESOLVED, that after due consideration of the "guiding principles" of the State of New York and the library's own code of ethics, that the Library adopt the attached "Library Vaccine Distribution Policy" and "Notice;" and

BE IT FURTHER RESOLVED, that the [insert] committee shall work with the Director to monitor the need to revise this policy, based on any new guidance, knowledge, or operational needs.

I wish you good health, strength, and fortitude as we move into this next phase of overcoming the pandemic.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This question is a good question for the bar exam!  It is a great blend of contract law and copyright.

Well, that's enough positivity for today; time for the answer, which is...

No.

Here’s the simply reason why I say “no”: as the member states, Netflix, Hulu, etc. tend to^[1] restrict their content for personal use, meaning: no classroom/board room viewings.  This means that even if the use is "fair" or otherwise non-infringing, non-personal-use viewing is barred by the agreement the account holder has with the service.

The more sophisticated basis for me saying "no," is this: Netflix, Hulu, and their ilk bar group viewing not only because of the contractual obligations they have to their content owners, but also because to do otherwise would mess with their economic model.  In short: it will cost them money.  So even if a copyright owner says it's okay, they might not be inclined to consent to a use contrary to their contract.

That said, to add to the law-school-ness of your question, I'll add to your scenario:

If the student obtains a DVD or finds an online copy of the 5 minutes they need, and plays that copy (not the one from a commercial content service) to the class, if the student truly has proper permission of the copyright owner, then what would otherwise be an infringement is not.^[2]

Of course, this requires a DVD,^[3] or an online copy from a source that doesn't bar the use via contract.^[4]  And of course, my scenario defeats the purpose of your question, which is to view the 5 minutes of the film in the format that is (likely) the most convenient: streaming.

I am sorry to be a bummer.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

***THIS ANSWER IS NOT FOR PUBLIC LIBRARIES***^[1]

Here is what else you can do:

Any private association library currently^[2] operating in the State of New York is required^[3] to have a pandemic Safety Plan.

A library’s pandemic Safety Plan is not set in stone; it should be a living document that evolves as the library’s operations and our overall knowledge about COVID transmission change.

With that in mind, revising its Safety Plan to ensure the physical layout of its curbside operations could be a good solution to this member’s situation.^[4]

Here are some possible revisions to accomplish this:

• Modify the Safety Plan so external seating in close proximity to all entrances/exits and curbside sites is removed or roped off for all but emergency or ADA use; or
• Modify the safety plan so the bench is within a perimeter that is barred for use by the public during business hours; or
• Modify the Safety Plan to enhance the size of pick-up zones where only employees and those quickly picking up curbside service may enter, and set up barriers (tables, Plexiglass, cones, bollards) to emphasize the increased size of the zone; and
• For any solution: use new signage with clear language and graphics to emphasize any changes or updates to the Plan, so people can adhere to the new rules.

NOTE: As with any adoption or revision of a Safety Plan, to the greatest extent possible, check in with your local Department of Health (I appreciate that in some places, the Department of Health may be so overwhelmed that this "check-in" is impossible).

Since it is best to have your library board "on board" with the library's Safety Plan, and any changes to it, below is a proposed resolution for adopting such a change:^[5]

BE IT RESOLVED, that to ensure the Library's Safety Plan is evolving as our information, operations, and needs evolve, the board adopts the attached [date] version of the Safety Plan, effective [date/immediately].

Now, all that said, I know there could still be a few hiccups (plans on paper often get shredded by reality).  Here is the obvious “hiccup” I see, and a proposed way to address it:

If the "difficult" patron suddenly discovers that the bench they like to use and socialize from is suddenly not there/unavailable, and they have a strongly negative reaction—yelling abuse, or even being physically violent—that is when to call law enforcement, and of course to invoke your Code of Conduct and consider barring or suspending them from the library, as circumstances warrant. 

But hopefully, with some modifications to the Safety Plan, and good communication of the changes, this concern can be resolved in a way that not only addresses this specific issue, but deters any other visitor who could pose such a threat.

Please let us know^[6] if this approach proves effective.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

I recently had a chance to check in with the New York State Comptroller's legal department[1] on this very topic.

The reason I had to check in is because the most recent on-point authority I could find on this subject was from 1981. 

The input I got from the legal department was re-assuring: no change in guidance in the almost four decades that followed.[2]

Now, that said, the attorney at the Comptroller's gave me the usual disclaimer that I often give in "Ask the Lawyer": It's just an opinion.  The law can change.  Check with your lawyer, since your charter, bylaws, and policies, or even a contract, could change how this applies to you."

But that said, below are the reassuring words of Comptroller Opinion #445, circa 1981.  Since they are a little heavy on the legalese and citation, I've put the important part in bold:

"As a general rule, the town library board of trustees, and not the town board, has the authority to appoint and dismiss library personnel (Education Law, §§ 226(7), 260; 30 Opns St Comp, 1974, p 98). The library board exercises direct control and supervision over library personnel and, for most purposes, including labor negotiations [**486] under the Taylor Law (Civil Service [*2] Law, §§ 200, et seq.), the library board is considered to be the employer of library personnel (County of Erie v. Board of Trustees, 62 Misc 2d 396, 308 NYS2d 515; Binghamton Public Library Unit v. City of Binghamton, 69 Misc 2d 1005, 331 NYS2d 515; Opns St Comp, 1972, No. 72-402, unreported; cf. Retirement and Social Security Law, § 30(c); Opns St Comp, 1980, No. 80-199, as yet unreported; Finkelstein v. Central School District, 34 AD2d 781, 311 NYS2d 243 affd 28 NY2d 705, 320 NYS2d 751). Compensation for library personnel is fixed by the library board and paid from the library fund (Education Law, §§ 226(7), 259(1)). It would then follow that, as between the town board and the library board, 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 (see Opn No. 80- 199, supra; 1961 Atty Gen [Inf Opns] 105; Education Law, §§ 226(7), 260). We note that expenditures for employer contributions to the New York State Employees' Retirement System for library employees are expenses [*3] incurred for the operation of the library and should be paid from library funds (Opns St Comp, 1975, No. 75-903, unreported; 16 Ed Dep't Rep, 1977, p 416). The same would hold true for employer contributions for social security and unemployment insurance for library employees." [emphasis added].

So, with regard to the member's specific situation, I of course have to say: " It's just an opinion.  The law can change.  Check with your lawyer, since your charter, bylaws, and policies, or even a contract, could change how this applies to you."  But if all of those things have been checked, and there is no provision changing the default, the Comptroller's words from 1981 still apply.

I hope this will help as your library works to retain that one week of paid leave!

Thanks for a great question.

Supplementary Answer

NOTE: For libraries that are running into this type of issue with their sponsoring municipalities, below, please find "some additional input" that I hope can be of help:

As many of you know, my law office has the privilege of working with libraries across New York.  It is work my team and I value highly, because it connects us with a vast "information army" of committed, creative librarians who are dedicated to public service.

This work also gives us an array of windows into what is happening "out there," especially when it comes to public libraries working with their districts and municipalities on issues like the one shown in this question.  And while each specific view from any particular window is confidential, it positions my team to distill a lot of anecdotal information,[3] and to share what we see in the aggregate.

Based on what we are seeing "in the aggregate" the type of issue brought forward by the member has always been an "issue," but with the budget pressures and political theater ushered in by the events of 2020, it appears positioned to become an "Issue" into 2021 and beyond. 

The emergence of this Issue isn't just a by-product of budget woes heightened by pandemic.  It is also the result of a rapidly evolving regime of employment law in New York, making the distinction between government and "private" employers more critical, with every passing day.  This distinction impacts things such as: comp time, overtime, minimum wage, insurance, liability, civil rights claims, labor law claims, and things that may seem mundane, but are actually quite important (such as: "Whose HR manual do we follow?").

If you take a quick scan of the "Ask the Lawyer" searchable index,[4] you'll see that numerous member questions arise from this "Public Library as Employer" divide. And while they relate to different aspects of the library-as-employer, they all touch on one very specific priority: public library board authority.  And it's apparent that this is something some sponsoring municipalities and districts have a challenge grasping.

So, in an effort to provide a short, succinct resource for libraries to direct their government entities to when they try to interfere with hiring, try to control employee benefits, or otherwise try to interrupt the autonomy of duly elected/appointed trustees in the governance of a chartered public library, I am posting this memo on my firm's website at https://www.stephaniecoleadams.com/adamsblog/2021/1/7/comments-on-public-library-board-autonomy, without the usual snarky asides and footnote commentary. 

Hopefully it can help avoid some of the needless argument and hostility that these misunderstandings can create.  If you find it helpful, please let us[5] know.

--Cole

Comments on Library Board Autonomy

Law and current legal authority firmly establish that public library boards are the sole authority regarding employee terms of employment, including hiring, compensation, benefits, evaluation, promotion, discipline, and termination. 

This autonomy is constrained only by a public library board's need to observe the New York Civil Service Law, the New York Education Law, numerous state and federal labor laws, various applicable regulations, and a library's own charter and bylaws. 

The law does allow a public library to use, in whole or in part, the payroll system, policies, and benefits systems of their sponsoring government entity, if such resources are offered to the library by that entity.  Further, the government entity, in making such an offer, may condition such use on the library's cooperation with certain reporting procedures or methods of documentation.  The choice to use such offered resources, however, is ultimately at the discretion of the library's board, who may instead decide to have the library implement its own system. 

And finally, the choice as to how to expend library funds with respect to employees (salary, benefits, paid time off) always rests solely with a public library's board.

The legal authority establishing these considerations is extensive, but a thorough summary is set forth in the links and content below.

https://www.osc.state.ny.us/legal-opinions/opinion-93-15, which states:

"The ultimate control of the use, disposition and expenditure of the library fund moneys is vested in the library board even when the municipal treasurer has custody (1991 Opns St Comp No. 91-57, p 158). Further, even if the treasurer of the sponsoring municipality is custodian of the library fund, the library board would have custody of private source moneys of the library (1988 Opns St Comp No. 88-76, p 145; 1980 Opns St Comp No. 80-340, p 101).

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). In addition, public library officers and employees are often not considered to be officers and employees of the sponsoring municipality or school district (see, e.g., General Municipal Law, §800[5], conflicts of interest; Public Officers Law, §10, official oaths; Binghamton Public Library v City of Binghamton, 69 Misc 2d 1005, 331 NYS2d 515 and County of Erie v Board of Trustees, 62 Misc 2d 396, 308 NYS2d 515, collective bargaining negotiations). In view of the library's fiscal autonomy, it is our opinion that library trustees and the separate library treasurer are not town officers or employees for purposes of Town Law, §123 and, therefore, are not subject to the accounting and auditing provisions of that section.

We note, however, that General Municipal Law, §30(3) requires that an annual report of financial transactions, including those involving private source moneys (Opn No. 88-76, supra), be made by the treasurer of each public library. The report must be certified by the officer making the same and, unless an extension of time is granted, must be filed with the Office of the State Comptroller within 60 days after the close of the library's fiscal year (General Municipal Law, §30[5]). In addition, the Education Law contains certain requirements for public libraries to report to the State Education Department (see Education Law, §§215, 263). Finally, as noted in Opn No. 88-76, supra, the town board, in determining the amount to be raised by taxes for library purposes, may take into account a library's private source funds and, therefore, may request from the library information concerning such funds."

https://www.osc.state.ny.us/legal-opinions/opinion-91-57, which states:

"With respect to library moneys, however, we note that public libraries are, for most purposes, fiscally autonomous from the sponsoring municipality (see, e.g., 1983 Opns St Comp No. 83-32, p 38). Thus, the ultimate control of the use, disposition, and expenditure of those moneys is vested in the library board of trustees even if the municipal treasurer is the custodian of library moneys. (Education Law, §§226[6], 259[1]; 1987 Opns St Comp No. 87-84, p 125; see also Opn No. 87-49, supra; Opn No. 86-54, supra). In addition, it is the library board of trustees which may authorize the investment of library moneys even when the moneys are held in the custody of the municipal treasurer (Opn No. 86-54, supra). Therefore, since the library board controls the use and disposition of library fund moneys, it is our opinion that the library board must consent to any arrangement under which library fund moneys are to be comingled with moneys of the municipality."

https://www.osc.state.ny.us/legal-opinions/opinion-2001-12, regarding indemnification of library trustees, which states:

"PUBLIC OFFICERS LAW §18: There are two alternatives for conferring the benefits of section 18 of the Public Officers Law on employees of a public library: either (1) the board of trustees of the library may elect to confer the benefits of section 18 on library employees as a public library expense; or (2) the governing board of the sponsoring municipality or school district may confer section 18 benefits on library employees as a direct expense of the sponsor."

Comptroller Opinion #445, which states:

"As a general rule, the town library board of trustees, and not the town board, has the authority to appoint and dismiss library personnel (Education Law, §§ 226(7), 260; 30 Opns St Comp, 1974, p 98). The library board exercises direct control and supervision over library personnel and, for most purposes, including labor negotiations [**486] under the Taylor Law (Civil Service [*2] Law, §§ 200, et seq.), the library board is considered to be the employer of library personnel (County of Erie v. Board of Trustees, 62 Misc 2d 396, 308 NYS2d 515; Binghamton Public Library Unit v. City of Binghamton, 69 Misc 2d 1005, 331 NYS2d 515; Opns St Comp, 1972, No. 72-402, unreported; cf. Retirement and Social Security Law, § 30(c); Opns St Comp, 1980, No. 80-199, as yet unreported; Finkelstein v. Central School District, 34 AD2d 781, 311 NYS2d 243 affd 28 NY2d 705, 320 NYS2d 751). Compensation for library personnel is fixed by the library board and paid from the library fund (Education Law, §§ 226(7), 259(1)). It would then follow that, as between the town board and the library board, 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 (see Opn No. 80- 199, supra; 1961 Atty Gen [Inf Opns] 105; Education Law, §§ 226(7), 260). We note that expenditures for employer contributions to the New York State Employees' Retirement System for library employees are expenses [*3] incurred for the operation of the library and should be paid from library funds (Opns St Comp, 1975, No. 75-903, unreported; 16 Ed Dep't Rep, 1977, p 416). The same would hold true for employer contributions for social security and unemployment insurance for library employees."

I hope this information is of assistance.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Thank you for this careful and thoughtful question.  As we rush to migrate education to online, the small details can get overlooked.  As the member writes, information that used to be safeguarded in physical files or with separate passwords is increasingly accessible via a "one-stop shop."

Depending on the type of information involved, any number of ethical, privacy, and legal concerns can be impacted.

In this question, the member focuses on two types of information: library records, and FERPA-protected "education records."

For library records, there is an overlap of legal concerns—an overlap that was thoroughly discussed in the 5/6/19 answer the member cites.  In that reply, we established that depending on how a school/school library is set up, parent/guardian access to this information might be allowed--but it’s a question that should never be left to chance (it should always be answered by a school’s FERPA and library privileges policies).

To that answer, and considering the spirit of the times, I'd simply add: any librarian out there, operating in elementary and secondary education, should be lauded when they raise privacy concerns.  Librarians should work with IT departments and procurement professionals to ensure data management and automation enable the separately governed access to a student's library records.  Even when access is legally allowed by a system, it is still good to emphasize the privacy of library records.

Here are several examples of how this can be done:

• Including privacy considerations in “Requests for Proposals” (RFP’s) and quotes for automation and other data management software that will hold library or student records;
• Training both library and IT staff to keep the division of different types of records with different access parameters at top of mind (“Remember, library records aren’t just protected by FERPA and ED 2-d”);
• Ensuring that release and parental permission forms distinguish between and properly govern access to different types of records;
• When making quick changes based on pandemic exigencies,^[1] ensuring at least one person is tasked with assessing if the implementation conforms with applicable institutional ethics, policies, and privacy regulations.
• Using deliberate awareness tools, such as a pop-up window that appears prior to enabling access to library files, saying "Student library records are confidential under state law.  Only properly authorized parties should view these records," is a good way to distinguish access to library information from other education records.^[2]

For any educator reading this and thinking “Uh-oh,” if the horse is out of the barn, it is never too late to adopt some retroactive corrections.  When parental access is as plenary as the member describes, if there is a confirmed issue (such as access to one student’s enrollment records leading to access to all students’ enrollment records^[3]) working with IT to address the specific utility hosting that information, and how it can be further locked down, is the only solution.

There will be times when addressing an issue like the ones raised by the member is simply not within the authority of the person concerned.  A concerned librarian or educator might even find themselves rebuffed when they try to ring the alarm! When that happens, it is time to kick it upstairs.  Each school should have a FERPA officer, and at least one senior administrator whose role is associated with enforcing a code of ethics or policies on privacy.  Concerns of this type are all appropriate to direct to such an administrator.

No one engineers a FERPA or privacy violation on purpose, but unwitting violations can happen when the learning environment has to change fast.  Being alert and ready to identify and correct concerns as soon as they emerge is critical.  Thanks for a solid question that shows how it's done.