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An Overview for New DirectorsApril 2014
Top Ten Legal Concerns for Public
Libraries
DisclaimerThese 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.
Legal Issues in Public Libraries—where do they arise?
EMPLOYEES
ACCESS
Employment Issues
Family Medical Leave ActMandatory 12 Week Leave--for certain conditions/circumstances
Use In Conjunction with Accrued LeaveEmployee may elect or employer may require
concurrent use of accrued leaveComp time is NOT accrued leaveCannot use accrued leave when receiving
short-term disability or worker’s comp
FMLA (cont’d)Expiration of FMLA 12-week time period
Automatic termination policy: May violate ADA because it fails to recognize the difference
in each employee’s circumstances
Communication with employee is criticalDocument, document, document—even attempted
communication
Engage in “the Interactive Process”
Document how leave affects employer
Americans with Disabilities Act
Requires employer to provide reasonable accommodations for qualified employees with a disability
Determining if employee is disabledDirect inquiry into health or medical condition
prohibitedBut asking for basis for request for accommodation and
requiring documentation is necessaryReasonable Accommodation
Leave—possibly in excess of FMLA’s 12 weeksJob restructuringPhysical modifications to workspace
Fair Labor Standards ActRequires employers to pay a minimum wage and compensate workers for overtime at a rate of 1.5 X hourly rate.
Comp time accrual—public employersMust be 1.5 hours of comp time for each hour of overtime worked
Burden is on employer to monitor hours workedEither prevent employees from working OT or compensate them
Independent Contractors v. Employees—what’s in a name?Critical issue is control: how much control do you exercise over
the individual’s schedule, work product, time management?
Criminal Background ChecksUse of criminal background in making hiring decisions under fire by EEOC2012 EEOC issued new enforcement
guidance restricting use of arrest and conviction records in employment decision
Disparate impact on minoritiesEEOC has successfully sued Pepsi
Beverages ($3.13 million); current litigation against BMW and Dollar General
State of Texas has sued EEOC
Ga Security & Immigration Compliance Act
Applies to all employees, but not volunteers
Applies to contractors performing physical servicesLandscape professionalsPest controlPrinter/copier repair
Does NOT apply to contractors providing goodsBook vendorsOffice supply sales
Personnel Policies orEmployee Handbook
GUIDELINES FOR DEVELOPMENT AND REVISION
Reflect library’s missionExplain legal obligations and employee
rightsSet forth expectations of employee conduct
as well as what the employee can anticipate from the employer
Personnel PoliciesEmployee Handbook
MUST HAVESAffirm at-will employment relationshipDress codeAttendance and Leave
Limitation of hours workedUse of comp timeHow to invoke FMLA leaveWhat is required during FMLA leave
PUBLIC ACCESS
Laws Providing for Access to LibraryFirst Amendment
According to the US Supreme Court, the public library is “the quintessential locus of the receipt of information.”
Americans with Disabilities ActTitle II prohibits public providers of programs and services from (a) discriminating against “a qualified individual with a disability;” and (b) excluding such individual from participation in or denial of the benefits of services, programs or activities.
Exceptions to Guaranteed Access?Illegal Activity
Child pornographyBootleg DVDs Wholesale copying
MisconductConsider progressive disciplineOverdue fines—debt not dischargable in
bankruptcyAccommodation impossible or unreasonable
ADA requires public service providers to make reasonable accommodations
Policies Addressing Access IssuesGuidelines for Development and Revision
Reflect library’s missionLegitimate purposeSpecificUniform applicationProper communicationDue process
Sunshine LawsAccording to the Supreme Court of Georgia, “Public men and women are amenable at all times’ to the people, they must conduct the public’s business out in the open.”Open Meetings
NoticeExecutive Session—when and how
Open Records3-day ruleRemember electronic data (email, texts)
included
Summary
A step-by-step
approach to
dealing with
legal issues
AwarenessDon’t be caught by surprise;
anticipate issues before they arise
PlanningForm a strategy for addressing
common problems
ConsistencyApply policies and make decisions
even-handedly
ResourcesAvailable on the Director’s Knowledge BasePersonnel Policies for Georgia Public
Libraries (May 2012)Georgia’s Open Meetings/Open Records
Laws (Oct. 2012)Legal Issues in Georgia’s Public Libraries,
2d Ed. (Jan. 2013)Case Studies, Part I (Sept. 2013)Case Studies Part II (Dec. 2013)
Resources for Accessing GA LawLibrary Laws at georgialibraries.org (updated
2013)
Entire Georgia code is available onlinehttp://www.lexisnexis.com/hottopics/gacode/General Assembly’s Website www.legis.ga.govAttorney General’s Website www.ga.law.govState Government Website www.ga.gov
Rules and regulations of State agencies filed with the Secretary of State. Public access is available at http://sos.georgia.gov/rules_regs.htm
Resource for Employment Law The National Employer now available through
PINESOverview of discrimination lawSurvey of Ga. law on wrongful dischargeEmployment tortsHiring strategiesEmployee handbookSelf-audit for personnel policiesEmployee privacy
More Resources: Federal Employment Law
EEOC: http://www.eeoc.gov/employers/
US Dept. of Labor: http://www.dol.gov/odep/pubs/fact/overview.htm
Celebrate!
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