Submission Date:
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!
Answer:
Wow, what a great question: what is the hierarchy of laws impacting the employment conditions of librarians?
The laws impacting the employment conditions of librarians are a complex logic tree with many branches. When I consider the amount of laws, and the permutations….
Just…wow.[1]
For a lawyer practicing in both library and employment law, this question is the equivalent of someone handing a librarian a huge box of materials while asking: “Can you catalog these, then use them in a ‘Library Employee Rights’ display for the lobby?”
I can’t wait to curate the display, but first, let’s take a look at what’s in the “library employment law” box. We’ll take them in rough order of hierarchy/priority.
The first item in the box is a huge, grubby tome that lawyers, even younger ones, use every day (if they are at a firm owned by a crusty Gen X lawyer[2]): Black’s Law Dictionary.
A legal dictionary is in the collection because, although no lawyer would ever litigate an employment law matter based solely on a dictionary definition, legal concerns often turn on precise word meaning, and employment law certainly does. In fact, there are at least three different legal definitions of the word “employee” that apply to library-related issues.[3]
The second is not a book, but a collection of CD’s containing a huge database. What’s on the database? It’s the “common law”—a body of case law and rulings that can influence how black-letter laws[4] work together. The “common law” is a body of shared language and precedent that can influence (sometimes heavily) legal decisions. It is often the glue that holds legal decisions together.
And now, for a few volumes that are far less esoteric:
The Fair Labor Standards Act (“FLSA”): Among many other things, this is the law governing who must be paid overtime when they work more than 40 hours in the standard work-week.
Federal Civil Rights Laws: This is a compendium of laws governing rights protecting people under the jurisdiction of the USA from discrimination. It includes the Civil Rights Act and the Americans With Disabilities Act.
The New York Human Rights Law: This is a compendium of laws governing rights protecting people from discrimination in New York. It includes protections on the basis of religion, sexual orientation, gender expression, prior conviction and pre-disposing genetic characteristics (among many other things). It is why your library recently adopted a sexual harassment report form.[5]
New York Labor Law & Regulations: Among many other things, this is the law that mandates one unpaid break every six hours for certain hourly employees.
New York Civil Service Law: Among many other things, this is the law governing the hiring, advancement, compensation scale, discipline, and termination of most public library employees.
Federal Laws Governing Benefits: This is a compendium of laws governing employee benefits in the USA. It includes a law called ERISA, and the Affordable Care Act.
The New York Laws Governing Employee Benefits and Protections: This is a compendium of laws controlling unemployment insurance, workers’ compensation for work-related injury, insurance for non-work-related injury, retirement benefits, and most recently, the Paid Family Medical Leave Act.
New York Education Law & Regulations/New York Not-for-Profit Corporation Law: These laws are combined in one handy volume to create the rights and duties of a chartered library, and its governing board (who, within a framework of laws, are the ultimate decision-makers regarding employment at their library).
Local Civil Service Rules: Based on New York’s “Municipal Home Rule Law,” many of the details of Civil Service-controlled employment practices can change from county to county (and municipality to municipality).
Local laws: Some municipalities adopt local law to create further protections for employees. These laws cannot be contrary to state, federal, and county law, but can expand employee rights further.
Random Authorities: This book is a vivid graphic novel depicting numerous opinions by the Equal Employment Opportunity Commission (“EEOC”), the U.S. Department of Justice, the National Labor Relations Board, the New York State Comptroller, the New York Attorney General, the New York Committee on Open Government, and the New York Commissioner of Education, regarding matters impacting library employees. One delightful example of this is an intricate decision by the State Comptroller about how much money could be spent on a party for volunteers.[6]
And finally, some really cool, custom works are in the box…
A Choose-Your-Own-Adventure novel called A Journey Through Your Charter and Bylaws.
Why is this a choose-your-own-adventure? Because while neither a charter nor bylaws can change the above-listed law, the “type” of library an institution is chartered as will impact if and how those laws apply. And within the framework set by those laws and their application to your library, it is the board—whose composition and functions are controlled by the charter and bylaws—that is the ultimate party responsible for hiring and firing of employees, which sets the stage for all other employment-related actions.
A collection of scrolls labelled “Contracts.” This could be as simple as a contract with an Executive Director or Book-keeper, or as complex as a “Collective Bargaining Agreement” with an employee union. It is important to note that while a contract can create a great many additional rights, it cannot be contrary to the Charter and Bylaws, nor any of the laws listed above (UNLESS there is not an “exception” in the law, allowing it to be altered by the terms of a collective bargaining agreement, and if your library type means they apply).
And finally, the most valuable part of the collection: a weird device, rather like a flour sifter, that says in big, bronze letters on its handle “IT DEPENDS.” What does this screen do?
It tells you which laws apply to which libraries, in which order of priority, under which circumstances.[7] When applied properly, this allows you to create…
Your Institution’s Employee Policies, drafted to comply with the law as it applies to your library, and to support your unique charter and mission. Such policies should be routinely re-assessed to ensure continued legal compliance and support for your library’s key objectives (like attracting, retaining, and developing the best staff possible).
In other words—and in direct response to part of the member’s question—the purpose of policy is to articulate and apply the law as it governs your library. No policy should ever contain a provision contrary to a governing law or regulation. This is why policy must be routinely assessed, revised, and updated.
And that’s the collection.
At this point, I imagine the member who asked this question might be feeling: Whoa, information overload!
Let me show you my display, here….
You probably thought it was going to be a tree, right? Nope. It’s a finely balanced array of media stacked to look like librarian assembling a sculpture of…a librarian.
Why is that?
No other entity created by law(s) has the type of support, mandates, restrictions, and—yes—latitude under the law that libraries do. Yes, libraries operate with a strict framework created by the laws and regulations listed above,[8] and operate within exacting mandates…but within that framework, libraries have almost limitless discretion with policies. That is how they function and evolve as reflections of their communities.
That said, certain things fundamental, and cannot be trumped by much. Here are a few (with links to the laws that back them up):
- In New York, librarians must get an unpaid half-hour break every six hours; https://www.labor.ny.gov/workerprotection/laborstandards/employer/meals.shtm
- Even if considered employees of their sponsoring municipality (which is often, at a bare minimum, debatable!), most librarians paid an hourly wage are entitled to protection under the FLSA; https://www.dol.gov/whd/regs/compliance/whdfs7.pdf
- In New York, unpaid volunteers may not replace or augment paid staff; https://www.labor.ny.gov/workerprotection/laborstandards/PDFs/FAQs_NonProfit_and_State2016.pdf
- In New York, any employee reporting or supporting a concern about sexual harassment is protected from retaliation;
https://www.ny.gov/combating-sexual-harassment-workplace/workers
- In New York, public library employees serve at the pleasure of their boards, NOT their sponsoring municipality;
https://www.nysenate.gov/legislation/laws/NPC/202
- In New York, public library employees may be indemnified[9] by their governing boards;
https://www.osc.state.ny.us/legal/2001/op2001-12.htm
- In New York, association library employees may be indemnified by their governing boards;
https://www.nysenate.gov/legislation/laws/NPC/202
- And…while it can be rather a pain to work within, public library employees are protected by the New York Civil Service law:
https://www.nyla.org/a-librarians-guide-to-civil-service-in-nys-2018/[10]
How does this play out?
Let’s take breaktimes as an example.
In New York, employees have to take a break every six hours. It’s the law. In my office, when a paralegal gets so into the project they don’t want to stop, I have to order them[11] to take a break. (at which point they do, because otherwise…irony).
Now, how I choose to support my employees as they take their break is up to me, and may become a matter of policy. Do I supply a break room? Do I have a fridge and a policy/procedure for keeping the break room clean and the fridge free of mold? All of those things are discretionary—and to govern the details, I might have a policy that goes beyond the minimum. But here is where things get complicated: If an employee doesn’t follow the policy, I may need to follow rules set by Civil Service to discipline them. But if I am selectively enforcing the policy in a discriminatory way, state or federal civil rights law could govern. Or perhaps the employee will first file a union grievance, which we’ll have to arbitrate…
And that is the hierarchy of employment law. It’s not really a heirarchy…it’s more of a fractal pattern. The good news is, library leadership gets some say in the pattern.
What shape does your library pick?
[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.
