RAQs: Recently Asked Questions

Topic: Retention Period for Employee Records - 07/26/2022
How long should the library retain employee records, payroll records, sales and purchase records, ...
Posted: Tuesday, July 26, 2022 Permalink

MEMBER QUESTION

How long should the library retain employee records, payroll records, sales and purchase records, mortgage and loan documents, and other records

WNYLRC ATTORNEY'S RESPONSE

Several considerations impact the answer to this question:

For a public library, the bare minimum record retention periods are found in a document called "the LGS-1."[1]  The LGS-1 has rules for retention covering everything from your library's charter, to how long you hold onto circulation records.

For an association library, which does not have to follow the LGS-1, those retention rules in the LGS-1 are a good baseline, but you have a bit more latitude.

However, no matter what baseline a library or other cultural organization chooses to adopt, it is good to keep in mind that required retention periods are routinely extended by things like:

  • Insurance policy requirements
  • Union contracts (for personnel records)
  • Grants, and other sponsored funding
  • Lawyers instructing a client to retain records as part of a "litigation hold"

In addition, while it can't be considered a formal "retention period", documents are also "retained" by institutions simply due to a tendency to hoard records.  At times, this can be a healthy tendency (like when letters from a first grade class from 1945, written to thank the local library for a story hour, are found in moisture-resistant storage, and they are turned into an exhibit).  Other times, it is not so healthy (like when borrower records from 5 years prior[2] are accessed during a burglary or hack).

For a large library (or museum, or other cultural institution) with robust funding and a large staff, "records management" per the LGS-1 or a customized "record retention policy" is often part of a person’s (or department's) job description--and is supported in the annual budget.  For a smaller library (or museum, or other cultural institution) with less-than-robust funding, and a smaller staff, "records management" is often an afterthought.  This can cause complications when the records pile up, and there is no person--or budget--to sort through them and make sure they are properly retained/purged.

But this question is about retention periods, not the drama they can cause!  So here is the answer:

For the types of records mentioned in the question ("employee records, payroll records, sales and purchase records, mortgage and loan documents"), the retention periods vary; some are "permanent", and others are as short at 6 years.  The LGS-1 (which will pop up when you search "LGS-1") will give you the breakdown.

For an association library that doesn't want to follow the precise requirements of the LGS-1, but still wants a retention policy, below is a model policy.

Thank you for submitting an important question!

 

[ABC] ASSOCIATION LIBRARY

RECORD RETENTION AND DISPOSAL POLICY

Items in yellow are to be changed or removed

Policy

The ABC Library retains and disposes of records as required by law, contracts, and based on the board's determination of what is in the operational best interests of the Library.

I.        Records are retained as follows:

-Association Library Charter, bylaws, Plan(s) of Service, Annual Reports: PERMANENT

-All records made available per the Open Meetings Law: PERMANENT

-Deeds: PERMANENT

-Contracts: (includes leases, mortgages, loan documents, vendor contracts, employee benefit contracts, warrantees, use of independent contractors): Seven years after termination of all obligations and rights created by contract; in some cases, PERMANENT. See "Archives."

-Employee-related: Seven years after termination of employee.  See "Archives."

NOTE: This will be impacted by an association library's union contracts, employee manual provisions, and employee-related policies; check these documents to ensure consistency.

-Fiscal & Financial: Seven years, unless the relevant fiscal policy, document or transaction it is related to requires longer. See "Archives."

-Archives: PERMANENT

-Records pertaining to library operations (based on the LGS-1 to ensure consistency with non-association libraries in the XYZ Library System):

-Accession records: 1 year after accessioning procedure becomes obsolete

NOTE: Some libraries accession manuscripts, rare books and special collections, but not their general library holdings. In these cases, the accession records need to be retained only for the kinds of materials still accessioned.

 -Informational copies of records prepared by and received from public library system, including but not limited to directories, minutes, budgets and reports: 0 after superseded or obsolete

-Directory of public library system and member libraries, prepared by public library system (member library's copy): 0 after superseded or obsolete

-Library card application records: 3 years after card expires or is inactive

-Borrowing or loaning records: 0 after no longer needed

-Interlibrary loan records, including requests to borrow or copy materials from other libraries, receipts for materials, copy logs, accounting records, and circulation records

a) When no copies of original materials are requested: 0 after no longer needed

b) When copies of original materials are requested: 5 years after order is completed

-Catalog of holdings

a) Manuscript or published catalog: PERMANENT

b) Continuously updated catalog: 0 after superseded or obsolete

-Individual title purchase requisition which has been filled or found to be unfillable: 1 year

-Records documenting selection of books and other library materials:

0 after no longer needed

-Library material censorship and complaint records, including evaluations by staff, patrons' complaints and record of final decision: 6 years after last entry NOTE: Appraise these records for historical significance prior to disposition. Some library censorship records deal with serious constitutional issues and may have value for future research.

-Patron's registration for use of rare, valuable or restricted non-circulating materials: 6 years

-Program and exhibit file documenting planning and implementation of programs, services and exhibits sponsored or co-sponsored by the library, including but not limited to photographs, sketches, worksheets, publicity, brochures, exhibit catalogs, inventory lists, loan agreements, correspondence, attendance sheets or registration forms, and parental consent forms:

a) Parental consent records: 6 years, or 3 years after child attains age 18, whichever is longer

NOTE: Photo release records are covered under item no. 68 in General Administration section. Local Government Schedule (LGS-1) Library/Library System

b) Attendance sheets and registration forms, when no fee is charged: 0 after no longer needed

c) All other records: 6 years after exhibit closed or program ended

NOTE: Appraise these records for historical significance or value for collections documentation prior to disposition. Some of these records may have continuing value for historical or other research and should be retained permanently. Contact the State Archives for additional advice

II.       Records are disposed of as follows:

At the end of the retention period, physical copies are purged via shredding as their retention period expires.[3]

At the end of the retention period, electronic records are routinely disposed of by [insert input from your IT professional].

Archives

Prior to purging, all records of the Library are appraised for historical significance or value for collections documentation prior to disposition. Some of these records may have continuing value for historical or other research and should be retained permanently. Records retained permanently due to historic or research value are designated as "Archives."

 



[1] For more "Ask the Lawyer" on the LGS-1, see https://www.wnylrc.org/ask-the-lawyer/raqs/253. The 2022 version of the LGS-1 was, as of April 11, 2022, found here: http://www.archives.nysed.gov/common/archives/files/lgs-1-2022.pdf.

[2] I know library systems are very good about ensuring borrower records are purged from ILS once they are no longer needed, as authorized by the LGS-1.  This is just an extreme example to make my point.

[3] For more information on appropriate ways to dispose of physical copies, visit http://www.archives.nysed.gov/common/archives/files/mr_pub41.pdf.

 

Tags: Accessibility, Archives, Employee Rights, LGS-1, Policy, Record Retention, Templates

Topic: Image Use By Previous Employers - 06/02/2022
This is an issue that's come up in recent conversation. If an individual who no longer works a...
Posted: Thursday, June 2, 2022 Permalink

MEMBER QUESTION

This is an issue that's come up in recent conversation. If an individual who no longer works at an institution finds that their picture is still being used by said institution, whether in promotional photos or on staff/faculty pages, does that individual have any legal recourse? It seems wrong for an institution to continue to use photos of faculty, staff, or even students who are no longer affiliated with the institution but it seems to promote the idea that they are. Sometimes it could be carelessness, other times it seems like there is an illusion of diversity being promoted. What could someone do if they find that their image/likeness is still being used by their former employer, for whatever reason?

 

WNYLRC ATTORNEY'S RESPONSE

This question needs to be answered on a sliding scale.

Here are three scenarios to show how the scale can slide:

Scenario 1: "Scrapbooking"

A museum makes robust use of social media to connect with its community.  At different events, a staffer or two are expected to take lots of photos, including shots of staff and guest speakers interacting with the community.  Members often comment how much they enjoy the images and connectivity.

Since the Museum got in on the ground floor of social media and the practice started on the Museum's website, some of the content is almost 3 decades years old ("born and aging digital"). At this point, some of the employees in the images have not only simply moved on--they've retired.

No written, signed permission to use the employees' images is obtained.

 

Scenario 2: "Image Crafting"

A library is working to show its commitment to diversity, equity, and inclusion.  The employee in charge of the web site and social media culls through photos of employees and patrons to post selected images on static pages that refer to a DEI commitment; while other use of the website and social media is managed as usual, these pages remain unchanged as stand-alone statements.

No written, signed permission to use the employees' images is obtained.

 

Scenario 3: "Stone Cold Marketing"

An association library is creating a brochure to kick off a capital campaign to build a new library on a donated piece of property.  The donated land is more centrally located in the library's area of service.  To raise funds for the hoped-for building that will serve a new generation of library users, the library asks all the employees and their kids to attend a photo shoot on the new land.  The idea is they will sit on blankets, reading, on the currently-empty lot, and the library's graphic designer will put a semi-transparent rendering of the future building over them, showing the library of the future.

No written, signed permission to use the employees' images (or their kids' images) is obtained. 

 

In New York, the law is pretty straightforward on the unauthorized commercial use of living people; NY Civil Rights Law Section 50 "Right of privacy" says "a person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor."

Recently, the law was expanded to restrict the commercial use of the image of deceased "personalities": NY Civil Rights Law Section 50-F 2. a. provides "Any person who uses a deceased personality's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without prior consent from the person or persons specified in subdivision four of this section, shall be liable for any damages sustained by the person or persons injured as a result thereof."[1]

"Ask the Lawyer" has addressed this issue a bit before: see https://www.wnylrc.org/ask-the-lawyer/raqs/255 and https://www.wnylrc.org/ask-the-lawyer/raqs/49, but we haven't focused on solutions to the question posed by the member: If an individual who no longer works at an institution finds that their picture is still being used by said institution, whether in promotional photos or on staff/faculty pages, does that individual have any legal recourse?

This is where our scenarios come in.

If the use is what I've called "scrapbooking" in the first scenario--part of a collection documenting events as they unfolded, and not featured or linked in a way that advertises the institution or asks for money--the law does not have much recourse.   That said, a former employee can always ask for an image to be removed as an act of courtesy, and if there is a compelling reason (safety, emotional well-being, not wanting to be affiliated with the institution any more) an attorney could help the person isolate and make a convincing argument for removal.

As the scale continues to slide, if the use is what I've called "image crafting" (the use referenced by the member in the question), if written permission was not granted, there may be grounds for demanding removal under the law.  A current or former employee who feels strongly about this should consider working with a lawyer, since the first request should accurately set out the basis for the requested removal.

On the final end of the scale, when the use is clearly for "advertising purposes, or for the purposes of trade" (like a posting soliciting a capital donation), written permission should have been obtained, and a former or current employee--unless their job description includes serving as a model or posing for published pictures--has a strong basis to demand removal under the law.

What can a cultural institution do to avoid the risk of unauthorized commercial use of an employee's image?  A few things:

First, unless it is part of the employee's job description, do not require use of the employee’s image on print publications and social media.  If the institution has determined that, for the sake of public relations and service, all public-facing employees will have their picture on the website, it should ensure that due attention to safety and privacy is factored into the requirement.[2]

Second, even when an employee seems "okay" with being featured in a publication (print or online), it is good to get written permission. While not all uses will qualify as "commercial" and thus risk violation of the law, it shows respect and proper attention to employee agency and safety.

Third, if feasible, consider a default position that every employee, unless it is in their job description, has "opted out" for use of employee images on institutional publications.  Then ask who would want to be featured.  For example: "To respect employee privacy, the library does not intentionally use the name and images of employees except to the extent they are listed on the website and in published board materials.  If you would like to be featured in library social media and publications, please alert the Director, so we can obtain a written image release.  This is not a requirement!"

Fourth, if your library or other cultural institution needs to rely on the personality and persona of an employee to the point where use of their name and image in association with the library is part of their job, consider putting that in their job description.  For example, "The [insert title] position is a community-facing position and in addition to routine interaction with the public, will be required to interface with the public via materials published by the [library] from time to time, including use of their name, signature, and recorded images of their likeness and voice."

And fifth, when in doubt, get an image release.

An image release can come in many forms; to be on the safe side, an image release should be custom-written for your institution, and the use it plans to make of authorized images.

That said, here is a sample:

Image Release

NAME, who is at least 18 years of age, consents to the use of their image, name, and likeness, as governed by New York Civil Rights Law 50 for purposes of informing the public about events, opportunities, and initiatives of the XYZ Library, including fundraising initiatives.  As an employee, I understand that such consent is not a requirement of my position, and I may revoke this consent at any time by sending a written request to make no further use of my image under this Image Release. I understand that "revoking consent" means no further use will be made of my image, but that past use will not be removed. Unless revoked by me personally, this release shall be binding on my heirs and cover the institution's use of my "right of personality" as covered by New York Civil Rights Law 50-F.

 

DATE:______________

SIGNATURE:______________________

WITNESS:____________________________

 

Records retention period of this release: PERMANENT.

 

A well-written release can cover you whether you are "scrapbooking", "image crafting", or engaging in "stone cold marketing."

Thank you for a thoughtful question!

 



[1] I won't list them all here, but there are many exceptions to this law for use by artists, journalists, etc.  If you are just learning about Civil Rights Law 50-F in this RAQ, please don't let it stifle your archive, art, or journalism! You can find the list of exceptions here: https://www.nysenate.gov/legislation/laws/CVR/50-F.

[2] I could write a whole chapter on this consideration, but we'll leave it there for now.

 

Tags: Employee Rights, Ethics, Image Rights, Templates, New York Civil Rights Law

Topic: Employee privacy and image use - 03/31/2022
My concern is about employee privacy and image use. Since it is so easy to take a picture these da...
Posted: Thursday, March 31, 2022 Permalink

MEMBER QUESTION

My concern is about employee privacy and image use. Since it is so easy to take a picture these days, and many employee meetings are happening over videoconference, what are the laws governing the use of employee images and materials generated by a library employer?   What stops the participants in an online meeting from taking and using screenshots of attendees?  I know that being a librarian often means working with the public, but when it comes to an employer using an employee's picture and other digital captures of their image, what does the law say?   Can an employee attending an online meeting be compelled to turn on their camera?

 

WNYLRC ATTORNEY'S RESPONSE

This is one of those questions that a thoughtful attorney, wishing to be thorough, could write a book about. However, "Ask the Lawyer" is not a book, so we'll see what I can do in about one thousand words!

To give some useful answers, and also stick within our word limit:

1.  If a library/employer needs to convene a meeting of employees and decides it will use videoconferencing tech to do so, and then states an expectation that all participating employees will turn their cameras on during the meeting, no law in New York bars such a requirement.

2.  If employees of a library/employer that requires, as a matter of policy, that participants in a video conference must turn their cameras on, decide to demand via a collective bargaining agreement, or through policy, that keeping a camera "off" should be an option for an employee, that could become a negotiated or policy-based term of employment.  But an employer could say "no" when this is asked/demanded (and then take the hit on employee morale and/or union relations).

3.  If a solitary employee of an employer who requires participants in a video conference to turn their cameras on decides being on-camera is unacceptable to them, and they request an exception to the rule, that is a reasonable request--but there is no obligation on the part of the employer to honor it (and in fact, special exceptions could cause issues...more on that in a bit).

4.  If an employee has a disability that prevents them from working effectively while on camera, that employee could request keeping the camera "off" as a disability accommodation, and the employer would have to consider the request per their disability accommodations policy (Based on the particular circumstances, this may or may not result in a decision to grant the requested accommodation).

5.  Now, with respect to the use of pictures: if an employer uses an employee's image--taken as either a photograph, a screenshot, or through any other means--for commercial purposes without the employees' permission, that could potentially be a violation of the law.  This is why employers who wish to use their employees' images in catalogs, advertising campaigns, and other publications as part of commercial operations should obtain written permission for such use.[1]

6.  Library/employers who wish to be proactive about protecting employee privacy, while also acknowledging that a library's workforce does often play a public role in their community, should use thoughtfully developed policies to find the balance between public relations and employee safety and privacy. A well thought-out and routinely re-evaluated use of a "Social Networking Policy," a "Media Relations Policy," and a "Branding and Promotions Policy"[2] can achieve this balance.

7.  And now, for some thoughts on how this all fits together.

[Clears throat, steps on soapbox]

There is no one right way to do any of the above-listed items, but because having a solid process that respects the privacy of employees is part of attracting, developing, and retaining a qualified and dedicated workforce--as well as promoting the operations of the library--it is important that a library/employer find the way that works for them.

On the employee side, for library employees who are concerned about their privacy, or about being compelled to turn a camera on, if at all possible, raising the issues gently with management prior to any type of crisis point is a good idea.[3] For libraries that are using name tags, or have specific policies related to employee safety/privacy, or use of cameras on site, any of those policies are good entry points for consideration of these issues.

Law aside, as a business owner, and as the participant in (now) more online meetings than I can count,[4] I have found that it is very important to set the norms for online meetings[5] so that employees know what the expectations are.

How is that done?  When convening a meeting, at least until a group knows what the norms are, it is good to give a few of the ground rules. For instance, a good set of opening ground rules could be:

 "Thanks everyone for gathering today. While we can't be together in person, it is good to be together for this important topic. For this meeting, cameras are optional, but we ask that if your camera is off, you use a picture of your face for ease of communication. This meeting is not being recorded, and we ask that you refrain from taking screenshots unless you ask first. If you have questions during the discussion, feel free to put them in the chat. Our note-taker today is [Person], and if you have items that you want to make sure end up in the notes, please put those in the chat as we meet. The notes for the meeting will go out by tomorrow."

Another example, very different but just as enforceable, would be:

Thanks everyone for gathering today.  While we can't be together in person, it is good to be together for this important topic. For this meeting, we do ask that you keep your camera on, so we are all using the same modes of communication. Also, so we have a good record of the information we'll review and the decisions we'll make, this meeting is being recorded. As a courtesy, please do not take a screenshot unless you ask first. If you need to make a comment, please raise your hand, and I as moderator will get you in the queue. We don't have a note-taker for today, so please make your own notes for any points to follow-up, or ask [Person] for the recording. As with all our meetings, the recording will be considered confidential and not for release to anyone who was not in attendance."

...and the combinations could go on.

By being thoughtful about the nuances of privacy and the norms for meetings, a library/employer can both set the tone for a graceful meeting, and also position themselves to proactively address any employee concerns about the chosen norm for meetings overall. This is particularly important if an employer is insisting that cameras be on at all times; while there may be compelling reasons for this type of rule, if a library/employer is relying on employees who are working from home, there may also be compelling reasons to give employees the option of attending with their camera "off"; a well thought-out and routinely expressed set of norms will help with compliance, will make sure exceptions to "camera-on" rules are not perceived by others as unfair, and will create space for feedback in case employees want to request that the rule or norm be changed.

Thank you very much to the member for a compelling set of questions that are very much of the times. As with all "Recently Asked Questions" posted on "Ask the Lawyer, we invite feedback on this one (sent to info@losapllc.com or through the "Ask the Lawyer" submission page).  This is an evolving topic, and I am sure many library council members out there have thoughts on this!



[1] For more on image rights, see the “Ask the Lawyer” here: https://www.wnylrc.org/ask-the-lawyer/raqs/49.

[2] There is no one name for this type of policy...some libraries call it "marketing," while others resist that label as too commercial-sounding.  If it didn't sound so cute, I'd say call it the "Who We Are and What We're Doing" policy, since that is really what it's for.

[3] I appreciate that not all employees are in situations where they feel empowered to raise this type of concern--gently, or at all. 

[4] In 2022, who can't claim this breadth of experience?  That said, because of my work, I have met with now hundreds of clients via telecon, so have seen a wide array of how business conduct online meetings.

[5] This is important for in-person meetings, too...but the norms may be a bit different.

 

Tags: Employee Rights, Image Rights, Policy, Privacy

Topic: Paid sick leave for COVID quarantine - 12/08/2021
The library (school district public library without a union or a bargaining agreement and less tha...
Posted: Wednesday, December 8, 2021 Permalink

MEMBER QUESTION

The library (school district public library without a union or a bargaining agreement and less than 50 employees) offers paid sick leave for most employees. However, based on what we have learn we have paid people, without it coming off of their earned sick time, if they are told to quarantine because they have been exposed to the virus. Does the same hold true for someone who is out sick because they have the virus? 
 
I have looked at the Ask a Lawyer FAQs, the various federal and state sites and issues of the HR Specialist Employment newsletter and do not see a clear answer.

WNYLRC ATTORNEY'S RESPONSE

I can offer a simple answer, and a complicated answer. 

 

Here is the simple answer: 

 

 

  • The current requirement of a public employer is 14 days of PAID leave for quarantine/absence due to COVID-19.   

  • private employer with under 10 employees must provide unpaid sick leave for the entire period of quarantine, during which time the employee can apply for Paid Family Leave benefits ("PFLA").  

  • A private employer with between 11 and 99 employees, or with fewer employees, but at least $1 million in annual revenue, must provide 5 days of paid sick leave, after which the employee can apply for PFLA for whatever time they need to be out. 

  • For employers with more than 100 employees, the employer must give 14 days. 

 

In all instances, the time out for COVID must not count against other accrued sick leave. 

 

And that's it. 

 

The complicated answer 

 

As you can see, the obligations under the Covid-19 Paid Sick Leave Law depend on the type and (if private) the size of the employer. 

 

So, is your library a "public employer?"   

 

The definition of "public employer" in this law is broader than in many other labor-related laws, so unless your library's HR and employment arrangements are 100% separate from those of the local municipality or sponsoring district, it is wise to consider this applicable (or get it in writing from your lawyer that it isn't). 

 

Since the library that submitted the question is offering paid sick leave for "most" employees--which means there is a different approach for different employees--it sounds like they have decided the library is not subject to Labor Law 196-b (New York's new "Sick Leave Law"), which applies to only private employers.   

 

This issue is not an atypical one in New York's "Library land."  Does your library use comp time instead of overtime?  That is an option available only to government employers. Does your library use the federal rather than the state minimum wage?  Only a government employer can do that.  Does your library not have to follow the Wage Theft Prevention Act?  Employers are only exempt if they are a government employer. The list goes on and on.  

 

[NOTE: A nice exception to this dichotomy is worker's compensation for work-related injury.  EVERYONE has to pay into worker's comp; you could say it is something New York employers all have in common]. 

 

The bottom line on this "complicated" answer? Make sure your library has clarity about which employment-related laws it decides that apply to it before it implements a COVID-19 Paid Leave policy based on them. And when in doubt, have a lawyer examine the compensation and other aspects of your library's employment arrangements to make the decision that is most consistent with its other employment-related practices. 

 

Thanks for a great question. And if this "public/private" employer issue has you flummoxed, here is a short poem to help out: 

 

Library Labor Law Chanty 

 

What law governs at my library?

What labor laws must we abide?

What legal authorities preside?

 

Sorry, there's no simple rule

Be you association, town, or school

But here's a few comforting rhymes

To get you through confusing times:

 

An oath of office is required

When a public library director's hired
Civil service law protects employees

Except at association libraries

 

Must my library pay state minimum wage?

YES (unless only the FLSA is your gauge)

Do we have to pay overtime?

Not if you're municipal AND grant comp time.

 

The new sick leave law pays workers' rent

Unless your (sorta) government

And no matter who gets COVID-19

Employees ALL get paid during quarantine.

 

What if we offer NYS retirement?

Just that doesn't make you government.

But if HR's handled by your municipality

You might just be a public agency.

 

What if there's a union contract?

That can change everything, that's a fact.

And don't forget your HR handbook

Should be based on the "type" of path you took.

 

Yes, there IS legal variety

caused by the "types" of library

But despite inconsistencies

One thing's always true: director hired by trustees.

 

And regardless of type or identity

And despite any support or interdependency

No matter what your answers to the questions three

Your library has... autonomy.

Tags: COVID-19, Emergency Response, Employee Rights, Labor, Legal Poems, PTO, Vacation, and Leave, Sick Leave, Workers Comp

Topic: Follow-up to Minor Employees and Obscenity in Libraries - 11/05/2021
[NOTE:  This question was submitted in response to the guidance posted at https://www.wnylrc....
Posted: Friday, November 5, 2021 Permalink

MEMBER QUESTION

[NOTE:  This question was submitted in response to the guidance posted at https://www.wnylrc.org/ask-the-lawyer/raqs/228].

After sharing your reply with my board, we have a follow-up question seeking clarification. The question is in regards to the following paragraph:

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. 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.

My president reads your first sentence (and the word "pro-active") and thinks that your advice is to reach out to parents upon or before the hire of a minor in order explain these policies and allay any concerns. If so, then which? Before, or after?

Whereas, I read your second sentence and think that you're saying that we're not liable -- we already have the parent's permission -- but that parents who then express their "concern" to me about any of the training materials should be given said spiel.

Can you please clarify? Thank you!

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.



[1] That is what I get for using a buzzword like "pro-active."  Although...is it a "buzzword" anymore? What happens when a buzzword gets tired?  Is it a "dunzzword"? 

[2] Here is the footnote: "We received a request for clarification about when to use this tactic.  As posted in the clarification here [https://www.wnylrc.org/ask-the-lawyer/raqs/241] I intended this guidance to convey that the information about accession, cataloguing and appeal policies be supplied only after a parent expresses concern."

[3] I could of course just have made an edit, but we don't hold with that 1984-style memory adjustment here.

 

Tags: Employee Rights, First Amendment, Management, Policy, Obscenity

Topic: Retroactive Background Checks - 11/03/2021
We have a school district public library board considering requiring background checks for new emp...
Posted: Wednesday, November 3, 2021 Permalink

MEMBER QUESTION

We have a school district public library board considering requiring background checks for new employees. They are concerned that they may be legally required to background check all current employees. Would there be any legal reason they would need to do so?

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.

 



[1] Of course, if a school district public library is in a school (not a common scenario; school district public libraries are largely autonomous and separate from school district property), and if the librarians are on the payroll of the district, then they are already being background checked and fingerprinted, per the chart here: http://www.nysed.gov/educator-integrity/who-must-be-fingerprinted-charts.  Of course, this question pre-supposes that the board is setting the hiring policy, which means the library is autonomous.

[2] Just to be clear, a contractual obligation to not conduct criminal background checks should never be in a collective bargaining agreement!  However, some reasonable restrictions on the scope of such a check would be consistent with NY law and policy.

 

Tags: Employee Rights, Employment, Ethics, Hiring Practices, Management, Policy, Privacy, Risk Management, Safety, School Districts, Background Checks

Topic: Keeping an Employee Job Open - 08/20/2021
How long can an association library (or other private museum or archive) hold open a job while an ...
Posted: Friday, August 20, 2021 Permalink

MEMBER QUESTION

How long can an association library (or other private museum or archive) hold open a job while an employee is out on disability due to a work-related injury?

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.

 



[1] The "pro" I refer to does not have to be an attorney.  They can be an experienced HR professional or administrator. 

[2] This is one where your System or your regional council's "Ask the HR Expert" service can be an invaluable resource.

Tags: ADA, Employee Rights, Employment, Workers Comp

Topic: Background checks and fingerprinting for new employees - 04/07/2021
My questions involve background checks for potential new employees, fingerprinting, developing pol...
Posted: Wednesday, April 7, 2021 Permalink

MEMBER QUESTION

My questions involve background checks for potential new employees, fingerprinting, developing policies, procedures, and best practices.

Do background checks, fingerprinting, etc., need to be done for all positions? 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? Can the background check need to include a financial check and a legal check?

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

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.

 



[1] This is why the phrase "Must have no criminal history" or the like must not be included on a job notice.  For more information on this, visit https://dhr.ny.gov/protections-people-arrest-and-conviction-records.

[2] More info on this further into the answer.

[3] For some employers, this criteria is set by the provider of the organizations’ automobile and/or general liability insurance; this is especially true for organizations that use "company" vehicles.

[5] Unless there is a very obscure local law I have been unable to find.  If you are aware of one, please email me at adams@losapllc.com.

[7] Or other categories protected by law.

[8] That's right: I put that in italics, bold, and underlined it!  An "Ask the Lawyer" first.  No organization should ever "wing" a background check--of any kind.  There is too much at stake.

[9] I know, there is a lot of room for interpretation in this language; when in doubt, seek guidance.

[10] I think of this as the "Penn State Victims Requirement."

[11] 18 NYCRR § 433.2

 

Tags: Employee Rights, Ethics, Hiring Practices, Management, Policy, Privacy, Safety, Risk Management, Background Checks

Topic: Proof of vaccination from employees - 03/01/2021
We are a large (100-employee) school district public library. We are currently encouraging and edu...
Posted: Monday, March 1, 2021 Permalink

MEMBER QUESTION

We are a large (100-employee) school district public library. We are currently encouraging and educating employees on getting vaccinated, but not (yet) *requiring* vaccinations. We are providing employees with up to 4 hours of paid time off to obtain the vaccine voluntarily--if their vaccine appointment occurs during hours/days when they would otherwise be scheduled and working for us--and requiring proof of vaccination if this paid time off is used.

My question has to do with requiring or requesting proof of vaccination for employees who get vaccinated during their "off hours" and opt not to use this specific paid time off type. 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?

If it is desirable or permissible for us to obtain proof of vaccination universally, should compliance by the employee be optional/voluntary or compulsory?

If we can obtain proof from everyone, I assume that this should be handled by HR (me) in the typical manner of any confidential medical information. But how do (or can) I share specifics on who has been vaccinated (versus who has not) with others, such as supervisors and managers? They might wish to know details in order to schedule staff accordingly. But at the same time, I would be leery of divulging such information, out of concerns for maintaining employee confidentiality, possible discrimination by unwitting supervisors, etc. I might be more inclined to/comfortable with reporting general numbers--i.e., of 100 employees, 29 have been vaccinated to date--than to share employee-specific details, but am not sure if that would be helpful, or really what information *is* helpful for employers to track and report on internally where vaccination status of staff is concerned.

This is an invaluable service. Thank you for your consideration of my questions and for any guidance you can give!

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.

 



[1] Posted as of February 26, 2021 at https://www.osha.gov/coronavirus/safework.

[2] This answer is found on the EEOC site at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws as of 2/26/2021.  "K.3. Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? (12/16/20) No.  There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related.  Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.  ...  If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA."

[3] Remember, if the employee uses vaccination status to self-identify as vulnerable, such information can be considered by the library reactively (and confidentially).  For more on that, see the "Ask the Lawyer" from January 19, 2021.

[4] Garden time!  Can you tell I can't wait to get into the dirt?  It always feels so distant, this time of year.

[5] As OSHA says, more research is required.

Tags: COVID-19, COVID-19 Vaccine, Emergency Response, Employee Rights, Policy, Public Health, Public Libraries

Topic: Requiring COVID Tests for Employees - 02/01/2021
Can an employer require a negative COVID test before an employee comes to work? We have discussed ...
Posted: Monday, February 1, 2021 Permalink

MEMBER QUESTION

Can an employer require a negative COVID test before an employee comes to work? We have discussed it on our [public library system] member directors list but have not come up with a clear yes or no answer.

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. 

 

 



[1] In this case "work" means the "work site," as in an established office or location controlled by the employer where an employee will report to work, or a site they are directed to appear at.  For this question, "work site" does not mean a home office or other space the employer does not control/send the employee to.

[2] This answer is based on the combined effect of the New York State Department of Health requirements here and  here.

[3] This answer is based on based on the combined effect of the New York State Department of Health requirements here and here.

[4] I know I covered this in footnote #1, but it bears repeating: based on the published guidance, NY employers are required to conduct mandatory screenings to reduce the transmission of COVID in areas they are responsible for, and areas they serve as part of their work, but not an employee's home office.  Requiring a test when there is no logical nexus between the employer's obligations and the request for medical information runs the risk of an ADA violation (not a slam-dunk risk, but enough of a risk to make it a bad idea).

[5] This answer is based on the Americans with Disabilities Act; if an employee has a disability that means they cannot medically tolerate a test (I have not heard of this, but I imagine it is possible), they will have to provide an alternate means of ensuring safety if such an accommodation is reasonable.

[6] This answer is based on the needs of work places with the highest levels of risk and risk management. 

[7] "The New York State Department of Health considers a "close contact" to be "someone who was within 6 feet of an infected person for at least 10 minutes starting from 48 hours before illness onset until the time the person was isolated. The local health department should be contacted if the extent of contact between an individual and a person suspected or confirmed to have COVID-19 is unclear. "

 

Tags: ADA, COVID-19, Emergency Response, Employee Rights, Health Management, Management

Topic: Library board authority over staff - 1/8/2021
The library is seeking information about a law stating that the library board has sole authority o...
Posted: Friday, January 8, 2021 Permalink

MEMBER QUESTION

The library is seeking information about a law stating that the library board has sole authority over public library staff benefits. The issue that needs to be addressed is a town board's attempt to eliminate a part-time employee's one week of paid leave per year that the library board granted [several years ago]. The town board's position is that since the other part-time town employees do not receive this paid leave, the library staff should not either. Research into the issue included a review of Education Law 226, but that only addresses hiring, firing, and salaries. Benefits such as paid time off, holiday pay, sick leave are not covered.

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.



[1] This is like a guitar player saying they recently got to jam with John Mayer.

[2] In fact, to bolster the 1981 opinion I found, they sent me an even older opinion.

[3] I appreciate that anecdotal information is not precise data analysis.  For that, I rely on the system, councils, LibDev, and NYLA.  I fall into those data rabbit holes regularly.

[4] I am very gratified to have been doing this long enough to warrant a searchable index.

[5] Write to adams@losopllc.com and jill@losapllc.com.

Tags: Board of Trustees, Employee Rights, Sick Leave, Benefits

Topic: NY's paid sick leave law - 11/05/2020
The state's new paid sick leave law recently went into effect on September 30th. According to ...
Posted: Thursday, November 5, 2020 Permalink

MEMBER QUESTION

The state's new paid sick leave law recently went into effect on September 30th. According to the state's website, eligibility requirements are as follows:

"All private-sector employees in New York State are covered, regardless of industry, occupation, part-time status, and overtime exempt status. Federal, state, and local government employees are NOT covered, but employees of charter schools, private schools, and not-for-profit corporations are covered."

As a school district public library, I'm curious to know if we fall into this local government category and so are not covered by the law.  According to the state comptroller's table summary of local government entities [
https://www.osc.state.ny.us/local-government/data/local-government-entities], public libraries are listed as "Miscellaneous Local Public Organizations".

However, in regards to page 33 of the State's Local Government handbook,

"Local government in New York State comprises counties, cities, towns and villages, which are corporate entities known as municipal corporations. These units of local government provide most local government services. Special purpose governmental units also furnish some basic services, such as sewer and water services. School districts, although defined as municipal corporations, are single-purpose units concerned basically with education in the primary and secondary grades. Fire districts, also considered local governments in New York State, are single-purpose units that provide fire protection in areas of towns. Fire districts are classified as district corporations. There are other governmental entities which have attributes of local governments but which are not local governments. These miscellaneous units or entities are generally special-purpose or administrative units normally providing a single service for a specific geographic area."

I wonder if a school district public library, such as ourselves, doesn't fall under this last category of governmental entity: one which has attributes of local governments but which is not a local government. If this is so, then this new law would seem to apply to us as well.

It's all a little confusing. Maybe you can help!

WNYLRC ATTORNEY'S RESPONSE

I wish I could reply to this excellent question with a plain "yes" or "no." But I cannot.

Why not?  Because, while as the member points out, a public library's "type" is relevant to this question, what may also be relevant is how the employees are being paid.  So answering this question requires a two-factor analysis:

Factor 1: Is the library in question considered a "type" of "governmental agency[1]?"

AND/OR

Factor 2: are the employees of that library compensated as if they were employees of a governmental agency?

If the answer to either question is "yes," Labor Law 196-b (which is the new "sick leave" law) doesn't apply.  If the answer to both is "no," then it may be time for the non-exempt library to draft a new Sick Leave Policy.

 

Now let's talk about the factors in this "two-factor test."

Factor 1: Is the library in question considered a "type" of "governmental agency?

Most libraries in the state of New York are NOT "governmental agencies" as that term is used in Labor Law Article 6 [2].

Sure, the library has to account for taxpayer money as required by the "General Municipal Law."  And yes, it is subject to parts of the "Public Officers Law."  And yep—it may even have to disclose certain records under the Freedom of Information Law. 

But none of that means they are performing a function of a "governmental agency" as defined under the Labor Law, which is where the new "sick leave" rules come from.  Under the Labor Law, a public library is far more likely to be considered a not-for-profit education corporation required to offer sick leave (and provide Workers' Compensation Insurance, and follow the NY Minimum wage laws...), than an exempt entity like a school district.

Now that being said, even if a library is not a "governmental agency," they may also be exempt from 196-b if their employees are....

 

Factor 2: "Compensated as if they were employees of a governmental agency"

How can this type of "compensation" happen, if the library itself isn't a "governmental agency?"

In New York, many libraries use their sponsoring municipalities and sponsoring school districts[3] as the "employer" of their employees—even though the library board retains the legal autonomy to hire, discipline, set compensation, promote, or terminate the employees. 

In this type of scenario, the library employees are a) paid directly by the municipality[4], b) are covered by the municipality's insurance[5],  c) get the municipality's benefits, and (most tellingly) are d) eligible for "comp time"[6] otherwise barred by rules requiring mandatory overtime.  In short, under much of the Labor Law,[7] they are treated as municipal/district employees.[8]

 

So does my public library have to give employees sick leave under the new law, or what?

Sadly, there is no "bright-line" rule.  But!  I have created a handy "Library-Municipality Relationship Type" chart to help you figure it out if it's something your library needs to worry about:

Library-municipality Relationship Type

 

Hallmarks

Legal impact with regard to employees and labor law

What this means with regard to the new "Sick Leave" law ("196-b").

1. "Total Coupling" Type

The library never separated any functions from the sponsoring entity; all finances, employee compensation, employee benefits, procurements, and property are owned/controlled by the municipal entity.

 

Ideally, the relationship is confirmed in writing.

In "total coupling," employees of the library, for Labor Law 196-b purposes, are considered municipal/district employees, even though the library board retains the authority to hire, discipline, set compensation, promote, or terminate the employees.

Employees are totally covered by the policies and benefits of the municipality/district, including the sick leave policy, and 196-b does not apply. 

2. "Select support: determinative" Type

The library has separated some functions from the sponsoring entity, but some functions determinative of legal status remain controlled by the municipal entity; for example, if a town still owns the library's building, or payroll and benefits are through a city.

 

Ideally, the relationship is confirmed in writing.

In a "Select support: determinative" scenario, if "employment" is a determinative factor, employees of the library  are paid by the municipality/district, so for legal purposes the employees might be considered municipal employees, even though the board retains the authority to hire, discipline, set compensation, promote, collectively bargain with, or terminate the employees, and even though the library has de-coupled from the entity in other ways.

IF employees are totally paid by and covered by the benefits of the municipality/district, including their sick leave policy, 196-b does not apply. 

Otherwise, the library must develop a policy under Labor Law 196-b, OR consider itself a separate "governmental agency" to be exempt.

 

 

3. "Select support: non-determinative" Type

The library has separated from the sponsoring entity to the degree that any slight collaboration between the library and the municipality does not determine legal status.  For example, the Town may plow the parking lot as a courtesy, but does not own the building, hold the money, or provide payroll/benefits.

 

Ideally, the relationship is confirmed in writing.

In a "Select support: non-determinative" scenario, the select support related to employees would not risk creating employer-employee status, or influence compensation and benefits, but could still be helpful assistance.  For example: if library employees were allowed to attend town employee trainings and professional development to save money for the library.

 

Library employees are not paid through the town/district, so the library must develop a policy under Labor Law 196-b, OR consider itself a separate "governmental agency" exempt from the law (which should be confirmed by a lawyer in writing for that specific library).

4. "Totally De-coupled" Type

The library has completely separated functions from any sponsoring entity.  The library owns the building, does all its own procurement and contracting, is the sole administrator of employee-related matters, and takes no extras or freebies from its municipalities/district.

 

No need to confirm the lack of relationship in writing, but you can exchange New Year's cards.

In a "total de-coupling," there is no select support related to employees. Librarians and municipal/district employees might say "hi," but they don't attend regular trainings or joint work sessions, and they are not in any way co-workers.

Library employees are not paid through the town/district, so the library must develop a policy under Labor Law 196-b[9], OR consider itself a separate "governmental agency" exempt from the law (which should be confirmed by a lawyer in writing for that specific library).

 

And there you have it.  From what I have seen, every public library in New York State handles its coupling/de-coupling in a different way.  Charter documents, bylaws, MOU's, and political/diplomatic relations can influence this just as much (if not more than) that law.  If you know where your library stands, you can not only assess its obligations under the Labor Law, but many other critical compliance obligations, as well.[10]

The bottom line here is: library employees shouldn't be left in a lurch, especially when it comes to sick leave, family medical leave, short-term disability, workers' compensation, and paid family medical leave—all of which are rooted in the question of "who" their employer is.  This means library trustees should periodically confirm, with certainty and clarity, what policies apply to their workforce.[11]  Regardless of where a library falls on the above chart, this can be accomplished with a confirmed, clear set of policies.

As employment law gets more and more intricate, and as we continue to live with a pandemic, this need for clarity will only get more critical.

I want to say a big "THANK YOU" to  Ben Gocker at Tupper Lake Public Library for submitting this excellent question and bearing with me while I talked through the answer with him.[12] Like all librarians I get to work with on "Ask the Lawyer," Ben is a critical thinker who brought a lot of research and practical experience to his question.  He also exhibited incredible patience as I tried to explain the mutable legal status of bodies defined by the Education Law, operating under the Not-for-Profit Corporation Law, subject to the General Municipal Law, living with the Civil Service law, and of debatable status under the Labor Law.  Thanks again, Ben!

I hope this approach and chart come in handy for public libraries out there struggling with this question. 



[1] I know this sounds like a re-hash of the member's point in the question, but in this case, I mean as that term is defined in Article 6 of the Labor Law, which is the section 196-b is part of. 

[2] Section 190 of the Labor Law, whose definitions apply to 196-b, states: “Employer” includes any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service. The term “employer” shall not include a governmental agency."

[3] How this is accomplished will vary, BUT there should always be a written document that sets forth how it is accomplished, and what compensation structure, benefits, and laws apply to the employee.  If there uncertainly about how an employee gets worker's comp, unemployment, or paid family leave, that is a sign the library and entity have to examine things a bit further.

[4] Or school district.

[5] Worker's compensation, unemployment, paid family leave, etc.

[6] "Comp time" is when employees can "bank" time off, rather than get paid time-and-a-half for overtime.  Only municipalities who are exempt from the Fair Labor Standards Act can do that.  For more on that, see "Ask the Lawyer" https://www.wnylrc.org/ask-the-lawyer/raqs/59.

[7] Except the Taylor Law.

[8] I can't emphasize this enough: even when this is the case, the library board retains the authority to hire, discipline, set compensation, promote, collectively bargain with, or terminate the employees.

[9] Just in case you read this and think "Oops—we may need to develop a policy!" A good breakdown and resources for compliance can be found at https://www.ny.gov/programs/new-york-paid-sick-leave

[10] That said, this chart only considers the application of Labor Law 196-b.  If it tackled everything, it would be...very, very long.  For a good case that shows how tricky these “what is a library” issues can be when it comes to employment, check out this case.

[11] It will vary from place to place, but for public libraries, your civil service rep should be a great resource for this.

[12] And another big thank-you for agreeing to be publicly thanked.

Tags: Employee Rights, , Public Libraries, Sick Leave, FOIA/FOIL, Health Management, Public Health, Records Management, PTO, Vacation, and Leave

Topic: Working from home during reopening - 8/18/2020
I work at a public library that is gradually reopening to the public. We employ quite a few librar...
Posted: Tuesday, August 18, 2020 Permalink

MEMBER QUESTION

I work at a public library that is gradually reopening to the public. We employ quite a few librarians who trend older and have underlying health conditions. Many of these staff have been working remotely for the past few months, but not necessarily on tasks essential to their positions. As we begin to recall employees to the physical worksite, some are requesting to continue working from home, and/or for indefinite relief from working directly with the public, because of their vulnerability to Covid-19 complications.

While we are working to accommodate our employees, we also realize that working directly with the public is an essential part of being a *public librarian*. So how can we effectively accommodate public librarians who are asking to *not* work with the public?

We have done this during our work-from-home phase, when our Library was required to remain closed. But I don't believe that we can sustain this over the longer term. At some point, we may have to hire people to fill the in-person needs of the Library, and won't have enough "at-home" work for existing staff to do.

Thank you for your guidance.

WNYLRC ATTORNEY'S RESPONSE

This is a heart-breaking question, and I am sure it has been a hard process to get to this phase in your operations and planning.

In the state of New York, it can be a violation of both state and federal law to deny a person an employment opportunity on the basis of age or disability.  However, when a person cannot perform their essential duties due to a health concern, and no reasonable accommodation can help them do so, that person may have to leave the position.

Which brings us to the member's question: "So how can we effectively accommodate public librarians who are asking to *not* work with the public?"
There is a lot of wiggle room in this type of question, because the answer will change from library to library, but that also makes it hard to answer generically. 

Since I can't give an answer, I can do the next best thing: an array of questions to help members assess their own library's response to this type of disability accommodation[1] request:

Consideration

Why this is important

Your answer:

 

Are the impacted employees Civil Service?

 

 

Any assessment of job duties, changes, and consideration of alternation of essential duties should be done with your Civil Service agency's input.

 

 

Does your library have to abide by the Americans with Disabilities Act, and if so, what are its precise obligations?

 

 

Precise ADA obligations change based on library type, size, location, and funding. 

 

This is a factor that should already be known and addressed in the library's policies or employee manual, or with input from your Civil Service agency.

 

 

Does your library have to abide by the New York State Human Rights Law?

 

 

Precise NYHRL obligations change based on library type, size, location, and funding.

 

This is a factor that should be known and addressed in the library's policies or employee manual or with input from your Civil Service agency.

 

 

Are the impacted employees governed by a collective bargaining agreement ("union contract")?

 

 

The union contract may control how employees’ duties may be assigned/re-assigned and offer additional protections and considerations.

 

 

Do you have a copy of each job description involved, and are those job descriptions current and accurate?

 

 

Before assessing if an employee can be granted a reasonable accommodation, or must leave their job due to disability, make sure their job duties and reporting structure are accurately set forth in their job description.

 

 

Looking at the job description, what are the elements that the employee is stating that they cannot perform due to medical factors?

 

 

This should be confirmed in writing between the library and the employee (and as needed, review with Civil Service).

 

 

What accommodations can allow the employee to still perform their essential function?  Can those accommodations be implemented by the library?

 

 

Isolating these factors, and confirming them with Civil Service when they impact job duties, will position the library to assess if accommodations (like not coming into close proximity with the public) is possible, and if so, if they are reasonable.

 

 

After considering its legal obligations, operational needs, and the specific request, can the library reasonably accommodate the request?

 

 

The answer may be "yes," or "no."  In the member's scenario, if an essential duty requires activity that, even with all applicable safety provisions, cannot be done by the employee due to a medical concern, the key question is: can the library accomplish the essential element?  As the member writes, that might be hard.

 

This is the part to review with your library's attorney, prior to acting on any determinations.

 

Look at the big picture, and plan accordingly. 

 

When the assessment/s is/are done, look at the overall impact.  How will this impact the Plan of Service?  Or employee morale?

Develop a plan to get any messaging right, while respecting employee privacy.

 

This is the part where you review the big picture with the board personnel committee, civil service agency, and/or attorney.  The goal is for directors to be empowered to make decisions about workforce matters, with appropriate support for the plans.

 

Effect decision-making.

 

Plan out any accommodations to ensure they are supported by your COVID-19 Safety Plan, and create a schedule for implementing any necessary workforce changes.  Make sure the plan makes room for communicating changes to employees, in a way that will build team cohesion.[2]

 

Generate documentation to show compliance with the plans.

I know no chart can take the place of a solid plan that considers the needs and resources of your library, the well-being and privacy of your employees, but hopefully this chart can help you develop one. Together with the more general guidance in an earlier answer, these are the fundamental steps to consider.

Thank you for being willing to pose a difficult question.  I wish your library well at this difficult time.



[1] The employee can call it whatever they want, but a request to change job duties on the basis of a medical condition (including the condition of having heightened vulnerability to infection) will generally be considered an accommodation request under the ADA or the New York State Human Rights Law.  Therefore, any library entertaining such a request should evaluate is as they would a disability accommodations request, which as stated in this answer, will vary from library to library, based on their policy (which should be based on the precise way the laws apply to that specific institution).

[2] Yes: It can be very tough to acknowledge someone is leaving, and then try to focus on "team cohesion."  And it can be doubly tough when a medical concern, and inability to offer an accommodation, leads someone to leave on disability (which of course is confidential, and cannot be shared by the library).  But at the same time, the right message can help with employee morale.  This is why strategizing with an HR professional or Personnel Committee Chair, to organize some talking points on those things, can be so important.

Tags: COVID-19, Emergency Response, Employee Rights, Public Libraries, Reopening policies

Topic: Employee Identity Theft - 7/27/2020
I was recently contacted by my employer stating that someone had applied for unemployment benefits...
Posted: Monday, July 27, 2020 Permalink

MEMBER QUESTION

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?

WNYLRC ATTORNEY'S RESPONSE

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!

Tags: COVID-19, Emergency Response, Security Breach, SHIELD Act, Employee Rights, Identity Theft

Topic: Optional removal of materials from personnel records - 6/29/2020
The library is using NYS Archives and Civil Service references to set personnel and payroll files ...
Posted: Monday, June 29, 2020 Permalink

MEMBER QUESTION

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.

WNYLRC ATTORNEY'S RESPONSE

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

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

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

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

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

Thank you for an insightful question.



[1] 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.

[2] 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”).

[3] These are all the “little details” I mention in the opening sentence, but as you can see, they aren’t so little.

[4] With all due consideration of privacy.

[5] 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.

[6] 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.

Tags: Employee Rights, Management, Policy, Record Retention, Personnel Records

Topic: [2020 Pandemic Date Specific] Policies for employees returning to work during COVID-19 - 5/21/2020
Public and Association libraries have questions about making policies creating conditions that mus...
Posted: Thursday, May 21, 2020 Permalink

MEMBER QUESTION

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?

WNYLRC ATTORNEY'S RESPONSE

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.

However.

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[1]:

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.



[1] Just to emphasize: NYLA is a critical resource at this time and all libraries should be monitoring this page daily for updates.

Tags: COVID-19, Emergency Response, Employee Rights, Public Libraries, Reopening policies, Safety, ADA, HRL

Topic: Usage of personal devices at risk of legal discoverability - 4/27/2020
When working from a remote location, and you do not have time or the technology to take work devic...
Posted: Monday, April 27, 2020 Permalink

MEMBER QUESTION

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.

WNYLRC ATTORNEY'S RESPONSE

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:

  • Educators working with FERPA-protected information should not store it on their personal devices. 
  • Health professionals working with HIPAA-protected information should not store it on their personal devices. 
  • Librarians working with patron information should not store it on their personal devices. 
  • Any employee working with content restricted by contract should not store it on their personal devices.
  • Any employee handling sensitive data (HR, fiscal, trade secrets, business plans) should not store it on their personal devices.[1]

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.[2]

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.”

Stuff happens:

  • A presentation where suddenly you can’t access a work file, but engineer a work-around using a Gmail address;
  • An emergency situation where a sensitive file has to be opened on a home computer;
  • A jump drive with both your photos from a family trip, and proprietary information, is uploaded onto a personal laptop.

 

Everyone[3] 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.[4]

I am grateful the member asked this question, because particularly right now,[5] 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.[6]

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.[7]



[1] 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.

[2] 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.

[3] Okay, this is hyperbole.  Hopefully it’s not “everyone” (I’m looking at you, hospitals, therapists, and the IRS).

[4] 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!

[5] Largely unforeseen, 100% order to work from home impacting most businesses.

[6] …although when I am feeling dramatic, I call it “data bleed.”

[7] Bearing in mind the deleted content is often never truly deleted…and thus could still be subject to discovery!

 

Tags: COVID-19, Emergency Response, Employee Rights, Privacy

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

MEMBER QUESTION

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

WNYLRC ATTORNEY'S RESPONSE

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

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

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

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

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

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

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

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

Compensation During Emergency Closure

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

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

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

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

Paid leave during emergency closure

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

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

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

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

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

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

Quarantine Leave

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

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

How can publicly funded libraries implement Quarantine Leave?

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

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

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

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

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

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

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

Concern #1: Union contracts

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

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

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

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

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

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

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

Concern #2: Allegation of improper use of public funds

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

CODA: A Note on Authority

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

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

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

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

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

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

Yes.

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

 



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

[4] “Collective Bargaining Agreement”

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

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

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

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

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

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

MEMBER QUESTION

Hi!

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

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

Please let me know.

Thank you!

WNYLRC ATTORNEY'S RESPONSE

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

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

Just…wow.[1]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And that’s the collection.

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

Let me show you my display, here….

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

Why is that?

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

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

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

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

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

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

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

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

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

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

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

 

How does this play out?

Let’s take breaktimes as an example.

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

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

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

What shape does your library pick?

 



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

[2] That’s me.

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

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

[5] Due to changes in 2018.

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

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

[8] And more….so many, many more…

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

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

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

 

Tags: , Management, Policy, Employee Rights, Labor

Topic: Retirement Benefits for Employees - 11/28/2018
Are municipal public libraries obligated to provide retirement benefits for all employees? Does th...
Posted: Wednesday, November 28, 2018 Permalink

MEMBER QUESTION

Are municipal public libraries obligated to provide retirement benefits for all employees? Does the library board need to approve a motion to provide retirement benefits for all employees or selected employees? Does the number of hours pertain? Or does the employee qualify for state retirement system benefits through the municipality? Again - is it based upon hours worked?

WNYLRC ATTORNEY'S RESPONSE

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

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

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

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

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

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

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

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

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

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

Does the number of [employee]hours pertain?

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

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



[1] Interestingly and somewhat famously (among the 14,000 or so library law aficionados in New York), this does not mean the municipality is the employer.  However, it does mean that many of the employee retirement benefits must (to a certain extent) be coordinated with the procedures and reporting of the local government.  NOTE: I invented the possible number of “library law aficionados,” but since I find this stuff fascinating, maybe 13,999 other people do, too.

[2] Information on kicking off the process of enrollment is here: https://www.osc.state.ny.us/retire/employers/employer_partnership/an_employers_role/becoming_a_participant.php

[3] As reflected in the excellent comparative chart on the New York State Education Department’s Division of Library Development Page: http://www.nysl.nysed.gov/libdev/libs/pltypes.htm.

[4] For instance, Op. State Comptroller 93-15, from 1993.

[5] A helpful guide on reporting hours to the NYERS is here: https://www.osc.state.ny.us/retire/word_and_pdf_documents/employers_files/employers-guide/section-6.pdf#search=%20libraries.

[6] Pun intended.

 

Tags: Management, Municipal Libraries, Retirement, Salary, Employee Rights

Topic: Salaried/Non-Exempt Employees and Compensatory Time - 11/14/2018
It is not uncommon in small non-profits and higher education institutions to find an employment cl...
Posted: Wednesday, November 14, 2018 Permalink

MEMBER QUESTION

It is not uncommon in small non-profits and higher education institutions to find an employment class called Salaried/Non-Exempt. If this person is not paid annually above the minimum salaried/exempt threshold AND their standard work hours fall below 40 hours, what are the laws governing the hours between standard work hours and 40 per week, and how are they applied?

For example: A library manager paid $32,000 per year, paid bi-weekly whose standard work week is 32 hours. If this manager works above 32 hours but less than 40, the library pays the manager compensatory time. 

How long after the accrual of this time is the library legally required to pay for the hours worked - either through time used or in money? 
And if in money, is it the hourly rate gained by annual "salary" / (standard work hours x 52)?

Finally, what if the library manager sought compensatory time over financial compensation as the better benefit? Do they have a choice?

WNYLRC ATTORNEY'S RESPONSE

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

Salaried/Non-Exempt

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

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

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

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

 

The Fair Labor Standards Act[3]

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

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

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

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

 

Comp time

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

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

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

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

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

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

 

Final take-aways

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

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

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

 


[1] Mostly having to do with the mandatory base salary levels set by the state and federal governments.

[2] Part 142 of Title 12 of the Official Compilation of Codes, Rules, and Regulations of the state of New York (Cited as 12 NYCRR 142), § 142-3.14

[3] This is the law the employees in the member’s question are “non-exempt” from…meaning they fall under its protections…one of which is to be paid overtime rates when hours in a given workweek exceed 40.  The inclusions and exclusions are found in https://www.law.cornell.edu/uscode/text/29/207.

[4] Too many to list here.

[5] See U.S. Department of Labor Advisory Letter FLSA2008-1NA.

[6] See 29 U.S.C. §207 (o)(a)(3).

 

Tags: Management, Salary, Employee Rights

Topic: Sexual Harassment Training - 9/26/2018
Beginning on October 9, employers in NYS are required to make interactive training which meets sta...
Posted: Thursday, September 27, 2018 Permalink

MEMBER QUESTION

Beginning on October 9, employers in NYS are required to make interactive training which meets state outlined minimum standards to their employees to combat sexual harassment in the workplace. As a cooperative public library system which serves a membership of public libraries including those which employ 1-3 staff members, we would like to support our members by providing the training centrally. We have no governing or financial authority over these independent libraries. Their employees are not our employees.

Can we provide training centrally for the employees of member libraries, as long as the training itself meets the minimum training standards?

Do different levels of employees need to be provided with different training sessions, for instance do library staff persons need to be provided a training space free of the library director?

Do trustees serving on library (or any non-profit) board need to participate in this training and if so, do they need their own session?

It is my understanding that training can only be shared if all the institutions have agreed to the state version of the policy AND been given the state created training module. Is that true?

Thank you!

WNYLRC ATTORNEY'S RESPONSE

The member is right: New York State has taken the huge step of requiring ALL employers—whether  they employ one, or one thousand—to train their people to recognize and report sexual harassment and illegal retaliation.

But this training requirement does not stand alone.  Also as part of the amped-up law:

  • All employers must have a sexual harassment policy meeting new content requirements.
  • All employers must have a sexual harassment reporting form meeting new content requirements.
  • All new employees must be trained about the sexual harassment policy within 30 days.
  • Liability now extends to complaints by independent contractors and “gig” workers[1].
  • Sexual Harassment claims cannot be resolved via mandatory arbitration and non-disclosure clauses (with some exceptions).

The resulting need to revise policies, adopt reporting forms, and organize trainings has hit many strategic plans and budgets hard.[2]  Libraries, who always feel budget pressure, are among the not-for-profits feeling the pinch.

Since this law passed along with the budget this spring, I have been counselling clients that this training requirement should not be viewed as simply another unfunded mandate (although it is), but an opportunity.  What kind of opportunity? An opportunity for library leadership to gather and train their valued people to recognize and reject discriminatory behavior right from the start.

But at the end of the day, no matter how worthy the topic, convening personnel and hiring a qualified trainer costs money.  Which brings us to the member’s great questions (underlined below).

First Question: Can we provide training centrally for the employees of member libraries, as long as the training itself meets the minimum training standards?

My answer to this is…Hold on.  Before we talk about resource-sharing, let’s talk about scope:

Trustees, interns, and volunteers should be part of this training.  [3]

Why trustees? When a small institution has a concern related to sexual harassment, trustees become front-line decision-makers.  Further, trustees are generally the “supervisors” of directors—and the new law specifically requires that supervisors be trained.  And finally—but most critically—library trustees set the tone for mission and leadership at the library.  You cannot change or evolve a library’s culture without trustee involvement.

Why interns and volunteers?  This new law comes with liability for harassment directed even at “gig” workers.  This liability can be caused by any person acting on behalf of the library—even a volunteer.  So every person[4] who works at the direction of your institution should know this law, and how to work within it, together.

With that scope of attendance in mind, based on the guidance from the state thus far[5], if the policy and reporting form track the model policies provided by the state: my answer is YES.

Second Question: Do different levels of employees need to be provided with different training sessions, for instance do library staff persons need to be provided a training space free of the library director?
NO! In fact, I believe a library would lose much of the value of the sessions if it did so.

Why is that?  While the stark requirement of the policy is to review the law, a side benefit of such a training is creating an esprit de corps for combatting bad behavior together.   That can best happen if each level of authority—from trustee, to supervisor, to employee to intern or volunteer—hears and honors the obligations of the other.[6]

If the different authority levels are balkanized into different trainings, a valuable opportunity to build trust and accountability in service to the library’s mission of equal access is lost.

 

Third Question: Do trustees serving on a library (or any non-profit) board need to participate in this training and if so, do they need their own session?

The new law does not mention training trustees or directors specifically[7].  But since boards generally supervise the Director or Executive Director, and are responsible for a library’s legal compliance in all matters, it is my conclusion that library trustees must be trained. 

And—although my comments above recommend against it—they can be trained separately.[8]

There is a related area, however, where separate training might be appropriate and warranted.  In this day and age, governing boards should know: 1) the library’s insurance coverage for sexual harassment/discrimination claims, 2) the procedure for notifying the insurance carrier of a claim, and 3) how and when to call in third-party investigator to look into a complaint.  Having trustees aware of these things, before a mandatory training under the new law, would be optimal.

 

Fourth Question: It is my understanding that training can only be shared if all the institutions have agreed to the state version of the policy AND been given the state-created training module. Is that true?

Let’s start this answer with what a library is looking for when arranging the required training—a required element of which is a live, in-person trainer that attendees can ask questions of.

What does the library need from this trainer?  At bare minimum, the trainer needs to provide a session that meets the requirements of the law.  Therefore, my guidance to those arranging trainings for a single entity is that the contract or hire letter contain assurance such as:

On [DATE/S], [PROVIDER] will provide [SINGLE INSTITUTION] with an interactive session based on the State of New York’s “Model Sexual Harassment Prevention Training” guidance and [Institution’s] Sexual Harassment Policy and Reporting Form.  When the training is complete, trainer will certify that all elements for sexual harassment trainings required by applicable NYDOL and NYDHR guidance, and the laws of New York, have been met.

For a multi-institution training organized by a membership alliance or network, I suggest that the contract or hire letter contain some extra details, such as:

On [DATE], [Provider] will provide [Institution]’s members with an interactive session based on the State of New York’s “Model Sexual Harassment Prevention Training” guidance and [Institution’s] Sexual Harassment Policy and Reporting Form.  When the training is complete, trainer will certify to each institution that all elements required by applicable NYDOL and NYDHR guidance, and the laws of New York, have been met.

As this is a multi-institutional training, to enable certification for each attending institution, the following practices will be observed:

  • Registration must be complete no more than [one week] before the session.
  • [Institution] must provide trainer with a copy of each participating institution’s sexual harassment policy and reporting forms, no later than [one week] before the session.
  • Each attendee shall register and sign in on a form that notes if they have a supervisory role.
  • When signing in, each attendee shall be given a copy of their institution’s sexual harassment policy and reporting form, and shall sign to acknowledge receipt.
  • When signing in, each attendee shall be given a name tag that notes their institution, and if they are a supervisor.
  • During the training, each attendee shall be addressed by name and given at least one opportunity to role-play or rehearse recognizing or reporting harassment or retaliation.

Attendance is limited to 5 institutions, 60 attendees.[9]

I based this guidance on what will no doubt be the next chapter in this legal saga: allegations of liability due to failure to properly update policies and train personnel. 

The “certification” approach I am suggesting above is not required by the new law.  Rather, it is designed to help your members, or your institution, create a record that will easily demonstrate that they endeavored to follow that law.  It is designed to show that, even if a system or group had to share resources and do a mass training, a truly interactive and meaningful experience was intended.  This is a key element of limiting liability.[10]

 

Conclusion

Of course, in a perfect world, people attend sexual harassment trainings not only to limit liability and because they are compelled to, but to learn how to ensure such behavior is rare, quickly called out, and immediately corrected.

The importance of such training cannot be over-stated.  When I was a 16-year-old page at a public library in the 1990’s, I was harassed by a patron.  I was too young and inexperienced to know my rights, or what to do.  Fortunately, I had the good luck to be on shift with an amazing assistant director[11].   When the bad behavior started, this graceful woman walked over to the patron, and simply said, “This has to stop now.”  And despite his displeasure, it did.[12]

Many decades later, her unambiguous, dignified, and immediate action inspires me, as I hope it does you.

Done right, these mandatory trainings are an opportunity for your library’s team to practice this type of skillful handling.  It is also a chance for supervising staff--who now have the term “mandatory reporter” in their job descriptions—to be assured that they are supported and backed up by informed and committed trustees. 

Finding ways to collaborate and share resources to make such training and practice as accessible and rewarding as possible is a great initiative.  Thank you for this excellent array of questions.



[1] Uber drivers who transport your interlibrary loans, for example.

[2] The State’s late issuance of required guidance—released less than 2 months before the effective date—didn’t help, either.

[3] I know, that’s not really the question.  But this is very, very important.

[4] Yes, some of those volunteers might be very young!  It will be the job of your trainer to train your employees both well, and appropriately.

[5] September 26, 2018. A I write this, they are assessing thousands of public comments—including some submitted by me—and that may change the basis of my advice.  So if you are reading this in 2019, please check for updates.

[6] Just so you know, “my firm belief” is based on years of conducting anti-discrimination trainings, ten years as an in-house counsel at a university, and time as an Interim HR Director.  I am not just going with my gut here.

[7] Nor does the current model policy, report form, or training materials. Considering that New York is a hive of corporations, this void is rather mind-boggling, but these State resources were compiled with haste.  I imagine this will be addressed in later versions.

[9] Or some other reasonable number.  This is just a recommendation.  Basically, you don’t want the number of institutions or attendees to make the “interactive” requirement arguably meaningless.

[10] But by no means the only element.  The most important one will be following the new law, and documenting that you are following it!

[11] Bernice Cosgrove. 

[12] The patron was quite upset.  In retrospect, he may have had some mental health concerns.  These matters often come with complications that require tact, diplomacy, and compassion.

 

Tags: Policy, Sexual Harassment, Board of Trustees, Employee Rights

Topic: Employee Sharing - 8/28/2018
Is it possible for a municipal library and an association library to share one employee? The assoc...
Posted: Tuesday, August 28, 2018 Permalink

MEMBER QUESTION

Is it possible for a municipal library and an association library to share one employee? The association library would handle payroll and manage benefits, the municipal library would pay the association library their percentage for the employee's time. Could this happen with two association libraries and one municipal library? Individually, our libraries are unable to offer full-time with benefits, but collaboratively, we could provide a full-time position. What are the legal steps to creating such a job share?

WNYLRC ATTORNEY'S RESPONSE

I have good news, and bad news. 

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

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

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

Here are the factors to consider:

1.  The libraries’ chartered identity

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

2.  The libraries’ bylaws and staffing policies

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

3.  The libraries’ plan(s) of service

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

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

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

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

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

There are many more reasons along these lines.

5.  Salary equity and benefits-related details

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

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

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

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

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

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

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

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

Thank you for this important question.

 


[1] In addition to those considerations, although it is not legal, I feel I must mention a quasi-political or strategic element. As we know, once taxpayers, municipal leadership, and other entities see cost-cutting, it is hard to close Pandora’s (newly efficient) box.  So while it is not a legal consideration, per say, being mindful of how any innovations in staffing efficiency will play out long-term is wise.  You don’t want a clever solution to become the tool of a permanent budget cut!

Tags: Management, Hiring Practices, Municipal Libraries, Employee Rights

Topic: Time Off Benefit Policy - 10/16/2017
A member asks…[We] are switching to a Paid Time Off (PTO) model in 2018 and are looking for...
Posted: Tuesday, October 31, 2017 Permalink

MEMBER QUESTION

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] 

WNYLRC ATTORNEY'S RESPONSE

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

IMPORTANT CONSIDERATION

Of course, developing a PTO policy does not happen in a vacuum. Aside from the recruitment, retention, and employee wellness objectives, a library considering transitioning to PTO needs to consider:

  • 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.

Tags: Management, Policy, PTO, Vacation, and Leave, Employee Rights

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