I was recently contacted by my employer stating that someone had applied for unemployment benefits using my Social Security number name and Job title. My employer notified me by email to be aware of this but stated that they conducted a security audit and found that there was no breach on their end and that the matter was currently being investigated by the department of labor and FBI. What responsibilities does an employer have to the employee when this happens? What should the employee do?
For this answer, we are again joined by Jessica Keltz, associate attorney at the Law Office of Stephanie Adams, PLLC.
This question takes us back to the SHIELD Act. Last discussed by Ask The Lawyer at the end of 2019 (https://www.wnylrc.org/ask-the-lawyer/raqs/100). The SHIELD Act requires businesses (and other entities that conduct business, such as, yes, libraries) that collect personal data to institute compliance measures including assessing security risks, implementing new data security measures, and securely destroying private information when it is no longer needed for business purposes.
We will take the two questions separately.
First, what responsibilities does an employer have to the employee when this happens?
If your library is not part of a large institution such as a university or a hospital, its compliance responsibilities likely fall under the SHIELD Act requirements for “small businesses.”
The act’s definition of a “small business” is:
"Small business" shall mean any person or business with (i) fewer than fifty employees; (ii) less than three million dollars in gross annual revenue in each of the last three fiscal years; or (iii) less than five million dollars in year-end total assets, calculated in accordance with generally accepted accounting principles.
Compliance requirements for small businesses under the SHIELD Act are more generalized; they simply need to ensure that their data security safeguards are appropriate for their business’ size, complexity, scope of activities, and the sensitivity of the information the business handles. Within those guidelines, libraries that fall under the “small business” requirements should have a data breach plan.
The event that the member described is certainly cause to be concerned that a data breach had occurred, and the library should have a plan to address it. What does addressing it look like? The most important elements are being able to evaluate whether a breach occurred (which it seems like the employer was able to do), and disclosing to the potential victim that a breach may have occurred (which the employer definitely did).
If the library had found that a data breach did occur, staff or a contract data security expert should re-evaluate the library’s security protocols to make sure to prevent the problem in the future; but in this case, as a breach did not occur, this may not be necessary.
In the case of a data breach or potential data breach (and this falls under “potential”), the employer is also required to disclose the concern to any resident of New York state whose private information was, or is reasonably believed to have been, accessed or acquired by a person without valid authorization. By notifying you this event occurred, the employer has complied with the requirement.
Meanwhile, what can an employee in this position do?
First: as soon as possible, the employee should consider involving their own attorney. The risks posed by this situation are too critical. For those who can’t afford an attorney, contact the local county bar association to learn about pro bono assistance in your region.
Second, assuming the employer has complied with their obligations under the SHIELD Act, since this involved a fraudulent claim for unemployment from the New York State Department of Labor (“NYSDOL”), the employee should work with the NYSDOL to learn all they can about the incident.
This starts with contacting NYSDOL’s fraud department at https://labor.ny.gov/agencyinfo/uifraud.shtm, to see what they can share about the abuse of your personal information. Armed with whatever other information is gathered from NYSDOL, the employee (or their attorney) can then look at their own credit history and other uses of their identity for potential breaches (social media and e-mail accounts).
While this is going on, be extra-wary of any calls, emails, or other contact requesting any personal information. Always require people to call back or write to you with any out-of-the-blue-seeming inquiry. Make sure the people close to you know you are on heightened alert. Consider changing all passwords (just make sure you keep a good record of the changes in a very secure place).
The Federal Trade Commission offers guidelines on when and how to place a “fraud alert” on your credit, to stop new accounts from being opened using your name and information.
https://www.consumer.ftc.gov/articles/0275-place-fraud-alert. Any person who learns their information may have been illegally accessed should also request a free credit history from one of the three main credit bureaus, and review their credit report for any unexpected checks or accounts. Depending on what you find when you do so, consider freezing your credit and reporting the theft of your identity to the Federal Trade Commission.
And finally, if any employee has reason to believe their employer or a contract provider is at fault for a breach (even if the employer or contract provider denies it) it is even more critical that the employee consult their own attorney as soon as possible. There are too many variables to give general guidance on this, but broadly speaking, the more you have at stake (employment-related information, direct deposit information, health and benefit-related information, and of course, a potential dispute with an employer) the more important it is to act quickly.
The scenario the member describes is nerve-wracking, and the member was right to reach out about it. Don’t go it alone!
The library is using NYS Archives and Civil Service references to set personnel and payroll files records retention and disposition.
A question arose regarding employee rights to request removal of materials from personnel records.
The committee’s question was specifically about removal of a negative matter after the minimum required retention time had elapsed.
In this instance there was no question about the accuracy of the record nor was there litigation involved or anticipated.
There are a lot of little details to address in considering this question, but first, there is one big principle I must emphasize. When it comes to records retention—and especially when it comes to employee-related records—nothing should be discretionary.
In other words, if an employer wants to create a process where every corrective action plan, performance evaluation, employment-related investigation, or incident report is removed after its minimum retention period has elapsed, that is fine. However, unless it is a benefit that has been carefully negotiated and confirmed in a contract, there should be no process for an employee to initiate optional removal of materials, and by no means should that process require the employer to make a “yes” or “no” decision.
The moment personnel records that could be interpreted as “negative” become subject to an employee-initiated, optional procedure, the employer, simply by having such a procedure, has: 1) admitted that possibility that the materials could have a negative impact on the employee; 2) created a system where such material could be retained inadvertently; and 3) set up a scenario where such a request could accidentally or deliberately be denied or perceived as somehow subject for debate, potentially triggering the possibility of a complaint, litigation, or a damage claim.
Unless retention is being considered for historic/archival purposes, record retention or destruction should never be discretionary (and of course, the decision to retain certain records for historic/archival purposes should be based on objective criteria). The best approach for management of employee performance-related records is simply that they be retained as required, or be purged when no longer needed, based purely on the category (not the substance) of the records’ content.
So, my answer to this question is: there should be no process for an employee to request optional removal of negative materials from a personnel file. Rather, the removal of material from personnel files should only happen per uniformly and routinely applied policy. If a negative review or incident report has served its purpose and is no longer needed, it may be removed as part of the routine purging policy and process. If it is still needed, it should be retained. There should be no middle ground; it creates risk. If your library is part of a collective bargaining agreement or uses contracts that include this approach, employees should all be notified and trained on how to exercise these rights.
Thank you for an insightful question.
 Just in case you are new to the Human Resources world, a “corrective action plan” is a time-limited plan with a clearly articulated goal and measurable steps to address a performance concern. Here is an example of a properly formulated Corrective Action Plan, taken from my domestic life: “To ensure optimal vegetable growth and family cohesion, for the next eight weeks, every family member will spend no less than ten minutes weeding per day. To enable verification, family members will place uprooted weeds on the Stick Pile.” Now, here is an improperly formulated version: “If you Ingrates don’t help me in the garden today, I will put a dead thistle by your pillow tonight.” Both techniques can, of course, yield results, but only one wins the “Happiest Workplace” award.
 Of course, a collective bargaining agreement could create the right to request removal of accurate information from a personnel file. Again, however, because such a discretionary approach might not be exercised or even known by all employees, I don't see this as a fair or helpful clause (to either employees, or the employer). A better option would be a simple records purge, or a purge tied to an objective performance metric (“after three years of ‘satisfactory’ reviews, this Corrective Action Plan will be removed from the employee’s record”).
 These are all the “little details” I mention in the opening sentence, but as you can see, they aren’t so little.
 With all due consideration of privacy.
 This could include, by the way, a Corrective Action Plan process with a “self-destruct” measure for the guts of the “negative” issue. In other words, the CAP policy itself could say “Upon satisfactory completion of a Corrective Action Plan, after # years, the only record retained will be the summary note confirming successful completion of a Plan of Improvement.” But again, this should be per a uniformly applied policy, not a discretionary request.
 By “needed,” I mean, among other things, that proof of the remedial action taken by the employer is no longer required to protect the employer. While many policies base this on statutes of limitations, most only start the clock after the employee’s period of employment is over, and that, in my view, is generally the most prudent choice.
Public and Association libraries have questions about making policies creating conditions that must be met for library staff to return to work. Can they set policies that exclude vulnerable employees from being able to return to work? Can they set policies requiring non-vulnerable employees to return to work?
I had initially considered bundling this question with another submission about temporary actions or policies during COVID-19. After all, both questions relate to policy, and a big goal of “Ask the Lawyer” is to provide legal information efficiently.
But after drafting that answer, and considering this question further, I did away with that notion. The member has isolated an incredibly critical concern about employee/employer safety and authority. It is a question that demands—and deserves—its own consideration.
But before we dive into the legalities, let's consider the practical implications of the member’s question. Why would an employer want to “exclude vulnerable employees” from the work site? On the flip side, why would an employer want to set policies “requiring” a class of employee termed “non-vulnerable” to return to work?
Near as I can figure, the employer would want to do this to promote safety; a laudable goal.
However, that is not precisely the approach an employer in New York State is empowered to take.
Under both the Americans with Disabilities Act (“ADA”) and the New York Human Rights Law (“HRL”), employers are barred from discriminating against employees on the basis of real or perceived disability. This means that a NY employer who knows—or suspects—an employee might be particularly “vulnerable” (in this case, to COVID-19, but in other cases, due to pregnancy, or other medical conditions), is barred from simply labeling that employee “vulnerable” and taking steps to limit or change the terms of their employment on the basis of that conclusion.
Rather, disability law is set up to empower employees to identify their needs, and then—under the most confidential circumstances possible—work with their employer to receive reasonable accommodations in consideration of those needs.
For example, a person whose medical history means that they might be more vulnerable to COVID-19 would work with their medical provider to provide documentation setting forth the risks and requesting a reasonable accommodation on the basis of those risks.
Employers are always welcome to let employees know the ways in which they may request accommodations. For instance, as libraries, museums, and archives consider limited or full reopening, employers can transmit those plans to their employees, and invite them to submit any request for accommodations based on the anticipated additional exposure to on-site visitors.
Think of it in the same way your institution might think of planning a large event that would invite the maximum number of people possible to your library or a rented venue. When planning for an event that will attract a large number of people, almost every institution will consider the need to accommodate people who use mobility devices. They might not contact those people in advance, even if they know they're coming…rather, the event will be planned with those accommodations in mind.
A good example of this, of relevance to the current COVID-19 crisis, is an employee with a respiratory disability. As we know, people who have had respiratory illnesses in the past may be especially vulnerable to COVID-19 now. These are people who may request accommodations—potentially including the ability to work off-site—based on a disability (a good list of accommodations for respiratory issues can be found here, on the Job Accommodation Network).
So, with all that being said, the answer to the member’s questions (Can they set policies that exclude vulnerable employees from being able to return to work? Can they set policies requiring non-vulnerable employees to return to work?) is: NOT AS SUCH.
Employers can most certainly, when otherwise allowed by law, policy, contract, and Executive Order, require employees to return to work. After that…
Once an employer is able/decides to re-open, in addition to any re-opening conditions, the employer must consider any requests for reasonable accommodations. This could absolutely include modifications for those whose disabilities render them vulnerable to COVID-19. The employer can even generally pre-plan to offer those modifications. Or they can make working from home, or working on-site, optional (if the work can, in the sole determination of the employer, still be done). But what they can’t do is pre-sort their employees by “vulnerability.”
There is one final critical point to make here, at this time (May 19, 2020).
Institutions re-opening as part of “NY Forward,” may be required to monitor the health of their employees in a way that typically would seem intrusive, and in some contexts, would even be illegal.
For example, here is a sample of the monitoring required under NY Forward, taken from a sample safety plan. NOTE: this is taken from the NYForward’s Phase One Retail Summary, and is provided as an example, only:
Employees who are sick should stay home or return home, if they become ill at work.
[Employers must] [i]mplement mandatory health screening assessment (e.g. questionnaire, temperature check) before employees begin work each day and for essential visitors (but not customers), asking about (1) COVID-19 symptoms in past 14 days, (2) positive COVID-19 test in past 14 days, and/or (3) close contact with confirmed or suspected COVID-19 case in past 14 days.
Assessment responses must be reviewed every day and such review must be documented.
Employees who present with COVID-19 symptoms should be sent home to contact their health care provider for medical assessment and COVID-19 testing. If tested positive, employee may only return completing a 14-day quarantine. Employees who present with no symptoms but have tested positive in past 14 days may only return to work after completing a 14-day quarantine.
As stated, this is the procedure for Phase 1 re-opening of limited retail operations. When will libraries subject to closure in NY be able to re-open under NY Forward, and under what terms? As I write this, the New York Library Association, NYLA, has this on their COVID-19 page, which states:
With input from our partners from the Public Library System Directors Organization (PULISDO), NYLA has been advocating for libraries to be permissively included in phase two. This would allow libraries to be a phased re-opening processed, to be determined at the local level, as early as when their region enters Phase Two. The decision on when, as well as the steps and procedures for re-opening, are best determined locally, and in conjunction with the local library system and county Department of Health.
This is a critical service to association and public libraries by NYLA, and every board and director should be monitoring this site for updates.
Of course, some libraries may have determined that the current workforce restrictions don’t apply to them at all (that they are exempt right along with school districts and local governments). And it is possible some libraries and museums, affiliated with larger institutions, will not be able to open until their region hits “Phase Four” (covering educational institutions). And it may be that by the point libraries are given the go-ahead, the emergency has abated to the point where monitoring of employees won’t be required.
But any library contemplating opening, in addition to being ready to consider ADA accommodations for those more vulnerable to COVID-19, needs to be considering these possible employee monitoring requirements, as well as the need to adopt any NY Forward-required Safety Plan, or similar documentation showing they are taking defined, affirmative steps to protect employee and public safety.
Public and association libraries developing the policies they need to re-open have a large, complex task before them. Thank you for a question that explores a critical consideration of that work.
 Just to emphasize: NYLA is a critical resource at this time and all libraries should be monitoring this page daily for updates.
When working from a remote location, and you do not have time or the technology to take work devices with you, can using your private devices (cell phones, personal laptops,etc.) open your devices up to discoverability for any legal actions by the district or organization you are working for? An example would be using your personal phone for Zoom (if your laptop does not have the capability) for a CSE meeting or other business that may or may not contain sensitive information.
This is a great question. An important question. And unfortunately, an all-too-infrequently asked question…
Because the answer is “YES.”
The risks and cautions and caveats related to use of employee-owned technology are endless, but here are the top five in my world:
This is my education/not-for-profit/library top five, but I could go on and on. And while the first layer of risk posed by this issue relates to legal compliance, privacy, and security, underlying those primary concerns is the risk that in the event of alleged non-compliance, or another legal concern, the employee-owned device the information is hosted on could be subject to discovery—even if it is personal property.
What is “discovery?” Fancy lawyer talk for being subpoenaed or otherwise brought in as evidence.
How does a library, museum, educational institution or archive—especially one operating ad hoc from home as a result of pandemic concerns--avoid these concerns?
Here is a 3-pronged solution:
Prong 1: know your data.
Every institution should know the information it stores, and sort it by sensitivity. From there, policy (or at least, “standard operation procedures”) should inform how such information is stored, and when/how it might get transmitted and stored (if ever) on a non-proprietary device.
Here’s an example based on the different types of information stored and transmitted by libraries: The templates for the brochures about a library’s story hour will generally be regarded as much less sensitive than the files regarding employees or patrons. So, while transmitting the story hour templates from an institutionally-owned computer to a personal machine might be okay, you would never transmit the payroll or employment history records that way. Policy and training should support awareness of the distinctions, and while the brochure templates might occasionally need to be accessed on employee-owned tech, the more sensitive types never should be.
Prong 2: know your tech.
Every institution should ensure employees who must access and store information regarded as sensitive have a work-issued account and device(s). An inventory of that technology should be maintained, so the institution is aware of precisely where the information stored on it will be.
Barring that (whether due to time or budget), networks and resources should be set up to filter out the security risk of content going to and from machines with less robust security.
Knowing your technology is set up to meet the demands of your institution’s more sensitive data is key.
But there’s one more thing…
Prong 3: Work to minimize risk, even if you can’t eliminate it.
Don’t let “perfect” be the enemy of “good.”
Everyone has had an instance where convenience triumphed over security. But that should be the exception, not the rule.
Even during times of emergency response and sudden adjustment (read: pandemic, or a crisis at the location of your organization), awareness of an institution’s data and technology can be used to minimize the exposure of more sensitive information to risky situations—even if sometimes, the end result is less than ideal. Admitting your institution is not perfect just means that in less reactive times, it must use the budget process and long-range planning to further reduce the risk, as time goes by.
And that is how to reduce the risk of employee tech getting subpoenaed in the event there is a content-related legal claim.
I am grateful the member asked this question, because particularly right now, this is a really common issue (although it remains a serious issue in less panicky times). So common, in fact, that I call it the “chocolate in the peanut butter” question.
Why is this legal concern named after such a delicious combo? Because the imagery really isolates the problem. When it comes to using employee tech, the convenience can be all too seductive. It can be, in fact, deliciously easy.
One reason to avoid this, among many, is because that technology could be subject to discovery.
But good risk practices can minimize this risk (even if you indulge on occasion). When working from a remote location, if you do not have time or the technology to take work devices with you, use of private devices, if necessary, should only be for only the lowest-risk content. Further, to minimize the risk of data loss, non-compliance, and security, such use should only be after a qualified professional has determined it can be done with no risk, and employees are trained to keep things confidential, and remove proprietary content after it is needed.
 By “personal devices” I also mean personal email accounts, Zoom accounts, cell phones, tablets, laptops, DropBox folders, etc. All content handled by employees for institutional purposes should be on institutional resources.
 How does “discovery” play out? Lots of ways. For instance, once I was defending a person whose personal laptop was subject to “discovery” in a civil case. We didn’t surrender the laptop. Normally, that might have posed a problem, but in this case, the laptop had been destroyed during a fight at a concert many years before. We had to produce the old police report to show that the property really had been destroyed, and we weren’t just resisting discovery.
 Okay, this is hyperbole. Hopefully it’s not “everyone” (I’m looking at you, hospitals, therapists, and the IRS).
 This answer does not contemplate the related but distinct issue of employer resources being use for personal purposes, or to harass others…which is the dark mirror of this issue. But good practices in one regard will lead to good practices in the other!
 Largely unforeseen, 100% order to work from home impacting most businesses.
 …although when I am feeling dramatic, I call it “data bleed.”
 Bearing in mind the deleted content is often never truly deleted…and thus could still be subject to discovery!
Can libraries, using public money, pay part-time staff if they are either forced to close due to the COVID-19 or if the employee is forced to self-quarantine?
This is a very specific question, during a very specific, difficult time. So before we delve into the answer, I want to be clear: every library dealing with the human resource considerations of a pandemic response should assemble the following, and be ready to draft a custom approach that takes into consideration:
After examining these resources, some libraries may find they already have “Emergency Closure,” “Quarantine Leave” and even “Pandemic Response” policies that address this question. They might even find that their library’s EAP program will offer help to employees struggling to find childcare or eldercare.
Still other libraries may find that while they don’t have pandemic-specific policies, their policies for compensation during times of natural disasters or declared states of emergency will apply to this situation—including for part-timers.
And finally, by examining the listed materials and working with the listed resources, a library can position itself to develop new, customized policies for safety (first!) and compensation continuity during a pandemic emergency. Further, they will be able to coordinate their response with their system and emergency response efforts in their region.
So, with that said, below is the answer to the member’s question, which must be divided into two parts: compensation during emergency closure, and compensation during quarantine.
After that, I include commentary on the roots of the authority you’ll see in the answers. And finally, I offer a sample policy and resolution for libraries that have no provisions for emergency closure pay and pandemic response, and want to proceed with maximum flexibility as they address this national crisis.
To the greatest extent possible, all of this should be done with the input of the library’s lawyer.
Compensation During Emergency Closure
NOTE: Before taking any action, check to ensure your library’s collective bargaining agreement, if there is one, does not have a relevant provision regarding compensation during emergency closure. This is critical.
A policy for compensation continuance during emergency closure is distinct from policies for paid leave (even though some libraries may already use their paid leave policies to address the ability to pay staff during an emergency). Essentially, the library must identify if it 1) wishes to keep employees on call for their regular or reduced hours, even if the library is closed; and 2) what tasks those people can do, even if it is simply being “on call.
As the members question implies, a library’s provisions for this may vary based on the employment category of the employee (the variables might even go beyond the distinction of “part” and “full” time).
Here is a sample provision enabling this approach as part of an “Emergency Closure Policy” or “Pandemic Response Plan:”
Paid leave during emergency closure
When the library temporarily closes due to a declared state of emergency, and all or some employees are instructed not to come in to work, upon a vote of the board, compensation shall continue as follows:
[insert your library’s employee categories and method of compensation continuation; be careful to insert DURATION and any TIME/AMOUNT LIMIT of pay, and modes of calculation. For example:
“Full-time staff shall be paid at their regular rate of pay. Part-time staff shall be paid for their regularly scheduled shifts; for part-time staff with variable schedules, the weekly amount will be based on an average of the last three pay cycles, or as determined by the board.]
To be eligible for compensation during a time of emergency closure or reduced hours, employees must be ready, willing and able to work remotely on projects identified by library leadership during their regularly scheduled working hours, and must complete such duties as assigned. When performing tasks remotely, employees should note the time worked through the usual process for logging hours.
Because an emergency compensation continuance policy builds on employees’ ability to work remotely, a policy for remote work is a good companion piece to this type of policy.
Libraries should also bear in mind that injuries during remote work can be covered by Workers’ Compensation, and should ensure that any remote-work policy consider how the set up remote working as a safe experience.
“Quarantine leave,” is paid time off during a time of quarantine (which can be imposed, or self-imposed), as a specific policy allows.
NOTE: “Quarantine leave,” is actually always available to state civil service employees. In fact, at the onset of New York’s Covid-19 response, the Governor declared that all state civil service employees would be eligible for up to two weeks of quarantine leave, regardless of classification, and as of this writing, nationwide coverage for certain private-sector employees is under development. CSEA, the union for public sector civil service workers (including library employees), is posting updates on this, as well, and libraries with CSEA bargaining units should stay attuned to that resource.
How can publicly funded libraries implement Quarantine Leave?
NOTE: Before taking any action, check to ensure your collective bargaining agreement, if you have one, does not have a relevant provision (chances are it will).
A good model for a “Quarantine Leave Policy” can be found in the state’s civil service law; below is a sample, with some additional language regarding part-time compensation:
If a full or part-time employee who is not personally ill is required to remain absent because of quarantine imposed by a governing authority, or if during a declared emergency an employee determines to self-quarantine and such employee presents a written statement of the attending physician or local health officer proving the necessity of such absence, such employee shall be granted leave with pay for the period of the required absence. Such pay shall cover the employee’s routine hours (part-time hours will be based on an average of the most recent three pay periods, or as set by the board). Prior to return to duty, such employee may be required to submit a written statement, from the local health officer having jurisdiction, that return to duty will not jeopardize the health of other employees.
To be eligible for compensation during quarantine leave, employees must be ready, willing and able to work remotely on projects identified by library leadership during their regularly scheduled working hours, and must complete such duties as assigned. When performing tasks remotely, employees should note the time worked through the usual process for logging hours.
Like with all employment policy, this is not something to adopt without a thorough scan of the above-listed documents, to ensure your library has no contradicting bylaws, contracts, policies, or hire letters.
We just want to pay people during a hard time, what could the concerns be?
There are three primary things that can get in the way of simply committing to pay people through a state of emergency: a union contract with set terms regarding emergency pay, concern over “unconstitutional use of public funds”, and budget concerns.
Concern #1: Union contracts
As you’ll note from my many caveats and uses of bold in the sections above, paying attention to a union contract (if your library is a party to one), and working with your local bargaining unit as you craft your pandemic response is a high priority at this time. A good union will be looking out for their members’ health and well-being—but will also be looking out for failure of the employer to adhere to the current contract.
What happens if your union contract states that part-timers will not get emergency pay for emergency closure or quarantine? Unless something is changed, in writing, and agreed to with the bargaining unit, OR your library has a “reserve clause” clearly allowing changes in a time of emergency (don’t assume you do unless it has been reviewed and ok’d by your lawyer), your part-timers will not be getting paid.
Contracts with civil service employers in New York can be looked up here: https://perb.ny.gov/nys-perb-collective-bargaining-agreements-a/. You can see many libraries, large and small, are listed.
I took a quick look and of the libraries I checked, different libraries have different emergency closure pay provisions. So, what happens at the library over in the next county--even if they are in your system--might not be what can happen at yours. This is a very careful thing to pay attention to, as it may affect employee well-being and morale.
That said, if leave with pay is barred by a CBA, and your board wants to address the issue of quarantine leave and compensation continuity, now is the time to contact your library’s lawyer, and head to the table (or, more properly during this time of sensible social distancing, a teleconference) with the head of your bargaining unit.
I imagine the head of the union will make the time; after all, this is all-hands-on-deck.
If your library isn’t in a collective bargaining agreement, while you have a lot of pressures hitting the current situation, this issue isn’t one of them.
Concern #2: Allegation of improper use of public funds
Article 8, §1 of the New York State Constitution states: “no county, city, town, village or school district shall give or loan any money or property to or in aid of any individual.” The reach of this clause includes public libraries.
Concern about this clause can be seen in the member’s question; from a certain point of view, paying staff (full or part-time) when they aren’t at the library doing their routine tasks could seem like a “gift.” After all, the employee is not at work, and they are getting money. Sounds like they are getting something for nothing, right?
Wrong. When implemented with careful attention to detail, such emergency response policies are part of a legal and sensible compensation structure that enables something for something. What is that “something?” A stable, reliable work force anchored by a stable, reliable income, ready, willing and able to work during a time of emergency (just when people need libraries most).
But such policies cannot be improvised, half-baked, or under-documented.
Armed with the information that properly effected and documented compensation during emergency closure or quarantine is not a violation of state law, if a public library doesn’t have an emergency closure policy or quarantine policy, and they want implement them now, a good approach is to gather the resources listed at the top of this answer, assess any pre-standing obligations your library has, and then adopt or refine some policies.
Here is a sample board resolution for a library that confirms it has no agreements or policies to the contrary and desires to set up maximum flexibility during this state of emergency:
WHEREAS on March 7, 2020, the Governor of the State of New York issues Executive Order 202 declaring a state disaster emergency; and
WHEREAS, as a result of the world-wide pandemic underlying the state disaster emergency, the library may need to close, reduce hours, or reduce staff reporting for duty; and
WHEREAS, the board has duly reviewed the public safety and budget considerations of reducing operations and continuing regular pay during the state of emergency; and
WHEREAS, the board recognizes that to best serve its area of service and protect the health of the community and its employees, employees may need to be directed to report to work at the library, to work remotely, or to be on-call but not report to work during routine hours; and
WHEREAS, the library is a community resource for critical information at this time, and must remain ready to respond to community needs as is within its capacity and budget;
BE IT RESOLVED that the board adopts the attached policies on “Quarantine Leave” and “Paid Leave During Emergency Closure;” and
BE IT FURTHER RESOLVED that the board shall continue to compensate full and part-time staff as allowed by law and provided by the policy for Quarantine Leave and Paid Leave During Emergency Closure between [DATE] and [DATE]; and
BE IT FURTHER RESOLVED that the library director and the [Executive Committee] of the board shall maintain ongoing communication and monitor the best approach to address safety and operational concerns, and shall inform the full board of same; and
BE IT FURTHER RESOLVED that the board shall reconvene on [DATE] to reconsider the continuation of compensation in light of what may be needed for the community and the library to recover from the state of emergency and return to normal operations.
CODA: A Note on Authority
What laws create a public library board’s authority to craft emergency response policies?
This starts with the basics. Education Law §259 required all moneys received "from taxes and other public sources" in the name of a library to be kept in a separate fund. And regardless of who is “holding the money,” “the ultimate control of the use, disposition and expenditure of the library fund moneys is vested in the library board….” (1991 Opns St Comp No. 91-57, p 158) [emphasis added].
As the New York State Comptroller has stated repeatedly: public libraries are, for most purposes, fiscally autonomous from the sponsoring municipality (see Opn No. 91-57, supra; 1983 Opns St Comp No. 83-32, p 37; Buffalo Library v Erie County, 171 AD2d 369, 577 NYS2d 993 affd 80 NY2d 938, 591 NYS2d 131).
So even if a library’s sponsoring village, town, or city has a defined emergency closure policy that precludes paid time off for part-timers, the library can decide to adopt their own (that said, if the municipal policy is a good one, the library can choose to “borrow” it and go along for the ride…but should still specifically adopt the policy as its own). As the Comptroller put it in opinion 1981 N.Y. 1981 N.Y. St. Comp. 485: “…it is the library board which determines the vacation and sick leave benefits for library employees. It is our opinion that a library board of trustees has implied authority to provide for sick leaves and vacations for library employees.”
What reigns this in? Compensation paid as part of any emergency closure or leave policy must be established, tracked, paid, and accounted for in a way that survives the scrutiny of an audit. The terms must harmonize with the obligations of any relevant collective bargaining agreement. And ideally, such an approach should bake in conditions to help the taxpayers see that compensated time out is in the best interests of the public. That is not an easy array of requirements to meet.
But done right, can emergency closure pay, or quarantine pay, for part-timers be “legal?”
Author bio: Stephanie Adams provides the “Ask the Lawyer” service to the library councils of New York. For over 10 years she was in-house counsel for Niagara University, where she was (among other things) a member of the University’s pandemic response team.
 One elegant policy I found was simply “If the Library closes because of extreme weather conditions or emergency conditions, employees scheduled to work will be credited with time as if worked. Previous time off requests supercede any credited time.” Go Geneva Public Library!
 “Collective Bargaining Agreement”
 It is the section that, along with many other things, bars libraries throwing extravagant parties for library volunteers.
 (1986 Opns St Comp No. 86-54, p 86),
 “Done right” means: consistent with your library’s bylaws, collective bargaining agreement, and employee manual, with particular attention to consistent and compliant use of the full-time and part-time categories, and FLSA status.
What is the order of due process in a local library for employees?
Which laws/policies apply most in advocating employee rights?
Please let me know.
Wow, what a great question: what is the hierarchy of laws impacting the employment conditions of librarians?
The laws impacting the employment conditions of librarians are a complex logic tree with many branches. When I consider the amount of laws, and the permutations….
For a lawyer practicing in both library and employment law, this question is the equivalent of someone handing a librarian a huge box of materials while asking: “Can you catalog these, then use them in a ‘Library Employee Rights’ display for the lobby?”
I can’t wait to curate the display, but first, let’s take a look at what’s in the “library employment law” box. We’ll take them in rough order of hierarchy/priority.
The first item in the box is a huge, grubby tome that lawyers, even younger ones, use every day (if they are at a firm owned by a crusty Gen X lawyer): Black’s Law Dictionary.
A legal dictionary is in the collection because, although no lawyer would ever litigate an employment law matter based solely on a dictionary definition, legal concerns often turn on precise word meaning, and employment law certainly does. In fact, there are at least three different legal definitions of the word “employee” that apply to library-related issues.
The second is not a book, but a collection of CD’s containing a huge database. What’s on the database? It’s the “common law”—a body of case law and rulings that can influence how black-letter laws work together. The “common law” is a body of shared language and precedent that can influence (sometimes heavily) legal decisions. It is often the glue that holds legal decisions together.
And now, for a few volumes that are far less esoteric:
The Fair Labor Standards Act (“FLSA”): Among many other things, this is the law governing who must be paid overtime when they work more than 40 hours in the standard work-week.
Federal Civil Rights Laws: This is a compendium of laws governing rights protecting people under the jurisdiction of the USA from discrimination. It includes the Civil Rights Act and the Americans With Disabilities Act.
The New York Human Rights Law: This is a compendium of laws governing rights protecting people from discrimination in New York. It includes protections on the basis of religion, sexual orientation, gender expression, prior conviction and pre-disposing genetic characteristics (among many other things). It is why your library recently adopted a sexual harassment report form.
New York Labor Law & Regulations: Among many other things, this is the law that mandates one unpaid break every six hours for certain hourly employees.
New York Civil Service Law: Among many other things, this is the law governing the hiring, advancement, compensation scale, discipline, and termination of most public library employees.
Federal Laws Governing Benefits: This is a compendium of laws governing employee benefits in the USA. It includes a law called ERISA, and the Affordable Care Act.
The New York Laws Governing Employee Benefits and Protections: This is a compendium of laws controlling unemployment insurance, workers’ compensation for work-related injury, insurance for non-work-related injury, retirement benefits, and most recently, the Paid Family Medical Leave Act.
New York Education Law & Regulations/New York Not-for-Profit Corporation Law: These laws are combined in one handy volume to create the rights and duties of a chartered library, and its governing board (who, within a framework of laws, are the ultimate decision-makers regarding employment at their library).
Local Civil Service Rules: Based on New York’s “Municipal Home Rule Law,” many of the details of Civil Service-controlled employment practices can change from county to county (and municipality to municipality).
Local laws: Some municipalities adopt local law to create further protections for employees. These laws cannot be contrary to state, federal, and county law, but can expand employee rights further.
Random Authorities: This book is a vivid graphic novel depicting numerous opinions by the Equal Employment Opportunity Commission (“EEOC”), the U.S. Department of Justice, the National Labor Relations Board, the New York State Comptroller, the New York Attorney General, the New York Committee on Open Government, and the New York Commissioner of Education, regarding matters impacting library employees. One delightful example of this is an intricate decision by the State Comptroller about how much money could be spent on a party for volunteers.
And finally, some really cool, custom works are in the box…
A Choose-Your-Own-Adventure novel called A Journey Through Your Charter and Bylaws.
Why is this a choose-your-own-adventure? Because while neither a charter nor bylaws can change the above-listed law, the “type” of library an institution is chartered as will impact if and how those laws apply. And within the framework set by those laws and their application to your library, it is the board—whose composition and functions are controlled by the charter and bylaws—that is the ultimate party responsible for hiring and firing of employees, which sets the stage for all other employment-related actions.
A collection of scrolls labelled “Contracts.” This could be as simple as a contract with an Executive Director or Book-keeper, or as complex as a “Collective Bargaining Agreement” with an employee union. It is important to note that while a contract can create a great many additional rights, it cannot be contrary to the Charter and Bylaws, nor any of the laws listed above (UNLESS there is not an “exception” in the law, allowing it to be altered by the terms of a collective bargaining agreement, and if your library type means they apply).
And finally, the most valuable part of the collection: a weird device, rather like a flour sifter, that says in big, bronze letters on its handle “IT DEPENDS.” What does this screen do?
It tells you which laws apply to which libraries, in which order of priority, under which circumstances. When applied properly, this allows you to create…
Your Institution’s Employee Policies, drafted to comply with the law as it applies to your library, and to support your unique charter and mission. Such policies should be routinely re-assessed to ensure continued legal compliance and support for your library’s key objectives (like attracting, retaining, and developing the best staff possible).
In other words—and in direct response to part of the member’s question—the purpose of policy is to articulate and apply the law as it governs your library. No policy should ever contain a provision contrary to a governing law or regulation. This is why policy must be routinely assessed, revised, and updated.
And that’s the collection.
At this point, I imagine the member who asked this question might be feeling: Whoa, information overload!
Let me show you my display, here….
You probably thought it was going to be a tree, right? Nope. It’s a finely balanced array of media stacked to look like librarian assembling a sculpture of…a librarian.
Why is that?
No other entity created by law(s) has the type of support, mandates, restrictions, and—yes—latitude under the law that libraries do. Yes, libraries operate with a strict framework created by the laws and regulations listed above, and operate within exacting mandates…but within that framework, libraries have almost limitless discretion with policies. That is how they function and evolve as reflections of their communities.
That said, certain things fundamental, and cannot be trumped by much. Here are a few (with links to the laws that back them up):
How does this play out?
Let’s take breaktimes as an example.
In New York, employees have to take a break every six hours. It’s the law. In my office, when a paralegal gets so into the project they don’t want to stop, I have to order them to take a break. (at which point they do, because otherwise…irony).
Now, how I choose to support my employees as they take their break is up to me, and may become a matter of policy. Do I supply a break room? Do I have a fridge and a policy/procedure for keeping the break room clean and the fridge free of mold? All of those things are discretionary—and to govern the details, I might have a policy that goes beyond the minimum. But here is where things get complicated: If an employee doesn’t follow the policy, I may need to follow rules set by Civil Service to discipline them. But if I am selectively enforcing the policy in a discriminatory way, state or federal civil rights law could govern. Or perhaps the employee will first file a union grievance, which we’ll have to arbitrate…
And that is the hierarchy of employment law. It’s not really a heirarchy…it’s more of a fractal pattern. The good news is, library leadership gets some say in the pattern.
What shape does your library pick?
 If I were the sort to write via emoji, I would be using the icon for “Mind. Blown.”
 That’s me.
 There is a definition for purposes of liability, a definition for purposes of compensation, and a definition for purposes of copyright ownership of employee work product. And yes, they are all slightly different.
 “Black letter” laws are those “embodied in…statutes.” Thanks, Black’s Law Dictionary! (Centennial Edition)
 Due to changes in 2018.
 This opinion is here: https://www.osc.state.ny.us/legal/1990/legalop/op90-63.htm. The final decision? “A public library may sponsor a recognition dinner for volunteer library workers, but may not sponsor a party for the senior citizens of the sponsor municipality or school district..
 This “screen” is either a lawyer, an HR professional, a civil service professional, or a library system or council working with one of those to support your unique operations.
 And more….so many, many more…
 In layman’s terms, this means you are protected in the event you are sued for just doing your job.
 I was lucky enough to attend an excellent presentation by authors of this Guide at the 2019 NYLA Conference.
 My team is great! Every employer should have this problem.
A member asks…[We] are switching to a Paid Time Off (PTO) model in 2018 and are looking for guidance on how to handle payout of the benefit when an employee terminates from employment. We would like to offer each employee their full yearly amount of PTO at the beginning of the calendar year (or start date of employment for new hires). However, we are concerned about the budget impact of having to pay out for every hour of PTO an employee has amassed in situations where employees terminate early in the year. As such, we are exploring a policy in where an employee receives all of their PTO hours at the beginning of the year and is free to use those days for time off. But if they terminate, they would only be paid out for a prorated amount of the PTO balance they have based on the number of hours they worked during the calendar year in which they terminated. Would such a system, if made clear in our Personnel Policy and not impacting any time accrued under a previous policy, be acceptable? Alternatively, would the Library be able to cap the amount of hours paid out upon termination to an amount we determine (35 hours/70 hours)? … Any feedback you could provide would be greatly appreciated. [Emphasis added]
Libraries are service-intensive environments, which means they depend on their employees to report to work. However, since so much depends on staff, libraries are also wise to give their employees the tools for self-care and a proper work-life balance. A PTO policy is a great way to facilitate this.
What is “PTO?” Put simply, PTO is a finite amount of paid time off work (scheduled or unscheduled), to be used for vacation, short illnesses, “mental health days,” or whatever else is needed (note: often, bereavement is excluded). By not dividing time off into distinct types, PTO enhances employee privacy and flexibility—while decreasing the administrative burden of tracking the type of time.
The increasing use of PTO also makes sense as the ADA, the FMLA, and the upcoming New York Paid Family Leave Act have changed the landscape of medically-related time off.
Before we get to the heart of the member’s question, let’s start with some crucial basics. Under NY labor law, employers must have a written policy (or policies) governing sick leave, vacation, personal leave, and holidays.1 Under that law, as governed by the policy, the value of these “wage supplements” must be paid out at termination.
That said, conditions can be put on the terms of these “supplements”; according to the DOL the amount of time that can be cashed out “depends upon the terms of the vacation and/or resignation policy.”
This guidance is backed up by case law: New York courts2 have held that the required policies about PTO can specify that employees lose accrued benefits if such loss is a condition of the policy.
Among other things, conditions in PTO policies may cover the following:
How PTO accrues (annual, or more incremental);
How eligibility and earned amounts are governed (for instance, part-time vs. full-time, or based on years of service);
How much PTO can be paid out at termination;
If eligibility for payout survives termination for misconduct;
How “scheduled” and “unscheduled” (sick, emergency meeting, etc.) PTO is granted;
If a certain amount of reasonable notice before quitting is required to get the payout;
If a restriction on the number of employees using PTO at once is needed (this is critical for service-intensive environments like libraries).
In addition, any transitional/new policy can (and should) expressly address already accrued wage supplements (for instance, converting any unused vacation to PTO, or paying it out). As the member shows sensitivity to in their question, the new policy should never nullify wage supplements already accrued.
So, here we are, at the heart of the member’s question: can the amount of PTO cashed out at termination be pro-rated based on the time of year the resignation happens? The answer is: Once given, PTO should not be clawed back based on a variable factors, even those factors are set out in the policy. However, the solution is just as the member posits (and as is listed in the third bullet, above): uniformly capping the amount to be paid out, and applying it without fail.3
The nature of the library (public, private, part of a larger entity, etc.);
The bylaws and role of any board policy or committee (for instance, if there is a personnel or HR committee, this topic would be of interest to them);
Any union contracts or other contractual obligations at play;
The full suite of employee benefit policies, and the recruitment, development, and employee retention and compliance goals they serve;
The budget impact of any changes.
Once a library arrives at draft policy, prior to it being enacted, a lawyer should review the policy to ensure it is compliant, and works well with related legal obligations, contracts, policies and procedures. Further, it is ideal if the policy is reviewed by the treasurer, and/or the person preparing the budget, and/or the person who files any tax forms on behalf of the entity. I’m no accountant, but I know PTO is logged in a specific way on balance sheets, and it can have an impact on financial statements.
So once you have your draft PTO policy, invite your lawyer, your treasurer, and your accountant (there’s a joke in there somewhere, I know), over for a quick cup of coffee, and make sure everyone says you’re ready to launch!
1 Section 195.5 of the Labor Law states: Every employer shall notify his employees in writing or by publicly posting the employer's policy on sick leave, vacation, personal leave, holidays and hours.
2 [See Glenville Gage Company, Inc. v. Industrial Board of Appeals of the State of New York, Department of Labor, 70 AD2d 283 (3d Dept 1979) affd, 52 NY2d 777 (1980).]
3 PTO can also be given on a more incremental basis, but this nullifies some of the flexibility benefits it can bring. That said, the policy should consider when an employee first qualifies, and if starting employees get a pro-rated amount based on their start date.