CASE STUDIES PART II DECEMBER 2013 MARTI A. MINOR JD, MLIS Legal Questions by Georgia Librarians
Jun 21, 2015
CASE STUDIESPART I I
DECEMBER 2013
MARTI A . MINOR JD, MLIS
Legal Questions by Georgia Librarians
Disclaimer
These materials are provided as general information only.
No legal advice is being given by the Georgia Public Library Service, the Board of Regents of the University System of Georgia, or any other person.
You should consult with your attorney on all legal matters.
Employment Issues
Background Checks
Good reasons to conduct them:
Aid in good hiring decisions Defense in negligent hiring/retention claims
Georgia employers have a duty to exercise ordinary care not to hire or retain an employee the employer knew or should have known posed a risk of harm to others.
Background Checks: Cautions
Criminal EEOC advises that blanket criminal background check
is discriminatory Should be done later in the process Crime/Job relationship
Credit Must have applicant consent Federal law prohibits refusal to hire based on
bankruptcy
Background Checks: Cautions
Social Media Be careful that employment decisions not based on
protected categories Refusal to hire lawsuit
Gaskell v. UK (2010) $125,000 settlement Asking for login info or required “friending”
Legislation prohibiting in MD and IL
Background Checks: Disposal
Securely maintain background on applicants that are hired or who remain under consideration for hire
Destroy data about applicants not selected—this is a protection of privacy concern
FMLA: When Employee Does Not Assert
Frequent absences due to employee’s health issues with no mention of FMLA
Always employer’s obligation to designate qualifying leave, paid or unpaid, under FMLALeave is qualifying if it is for:“an illness, injury, impairment, or physical or mental condition that involves: (1) inpatient care in a hospital, hospice, or residential medical care facility; or (2) continuing treatment by a health care provider.”
FMLA: What Questions May Employer Ask
May ask: Type of leave to be taken If sick leave, does it qualify under employer’s sick
leave policy If policy permits, may require a doctor’s certification
For status reports—no more often than every 30 days Includes certification of fitness to return to work
May NOT ask About medical condition This prohibition includes asking co-workers or family
members
First Amendment Issues
Rights Limitations
Hand distribution of religious materials receives high level protection by Supreme Court
Public libraries are traditional embodiment of marketplace of ideas
Library’s code of conduct
Cannot disrupt others’ use of the public library Kreimer v. Morristown
Patron-Patron Solicitation
Patron-Patron Solicitation: Establishment Clause
What about separation of church and state? Private speech v. governmental speech
Access by Minors: Legal Implications
Supreme Court: Minors are entitled to a “significant measure” of 1st Amendment protections.
Two justices recognized these rights are “particularly strong” in a library setting.
Access by Minors: ALA Policy
Absent a Harmful to Minors Act, a policy of free access limited only by parental decisions of appropriateness for very young children
Georgia’s Harmful to Minors law specifically exempts public libraries. O.C.G.A. § 16-12-104.
Privacy/Confidentiality
Photograph & Complaint RE: Library Employee
No legal prohibition to taking a person’s photo in a public place even without consent.
Georgia Supreme Court has recognized a strong public interest in the operation and functioning of a public agency.
Photo & Complaint: Does employee have claim?
Employee could take legal action against the patron only if posting = defamation or invasion of privacy To be defamatory, must be false statement (not
opinion) and injure the reputation of the subject For invasion of privacy, must disclose private rather
than public facts and must be offensive and objectionable to reasonable person
Access to Video Surveillance: Police
Assisting the law enforcement arm of local government
Or, violating patron privacy rights?
David Randall: Video Surveillance in Public Libraries: A Case Of Unintended Consequences (2013)
Access to Video Surveillance: Public Record
Georgia Open Records Act “all documents . . . tapes . . . prepared and maintained
. . . by an agency in the performance of a service or function.” O.C.G.A. § 50-18-70(b)(2)
Pursuant to an open records request, must be turned over within three business days. O.C.G.A. § 50-18-71(b)(1)(A).
More Topics Discussed in Written Materials
Mandatory Direct DepositNon-profit Status of a Public LibraryNepotism/Conflict of Interest on Hiring
CommitteeForcing or Encouraging Retirement
Topics for Spring 2014
I need topics! Send your questions and suggestions for the spring meeting to Julie Walker.