Friday, November 07, 2014

#NYLA2014 : Legal Issues for Public and Association Libraries

Ellen Bach
When thinking about the legal issues, it Is important to know what type of library you are.  The laws are different from one type of library to the next.

Ellen Bach talked through several hypothetical situations.

First, a situation around "vote yes." Friends groups - that are independent organizations - are often 501(c)(3) and there are rules around lobbying.  A library cannot tell the community to vote "yes."  If the friends group is part of the library, it cannot say "vote yes."

The library can provide information and that is okay.  The library cannot express opinion or advocate.  The library should be factual.

Targeted mailings are considered advocacy and the library cannot do that.

The library can say "go vote." 

The library board president can write a factual letter to the editor, but cannot advocate.  The same rule would apply, if the letter were written by the library director.

If a PAC is formed to support the library, it should not have the same leadership as the friends group or library trustees.

The laws that apply include:
  • NY Constitution Article VIII, section 1
  • Education Law section 2037
  • 36 U.S.C. Section 501(c)(3)

Second, the protected poor performer.  

The National Labors Relations Board considers expressing opinions about the terms and conditions of employment  to be a protected activity.  When it is an opinion and when is it misconduct? Employees cannot disclose about patrons on social media.  An employee can say "it sucks to work here."

Some social media policies contain illegal restrictions.  

If you have someone who is being harassed because of a protected status (e.g., gender), you have a problem that needs to be addressed.  You need to have an anti-discrimination, anti-harassment policy.  Complaining needs to be easy for the person.  There need to be multiple avenues for the person to use in order to complain.  You also need a patron policy. 

If the director is informed of possible harassment, the situation I needs to be investigated.  Inform the library's attorney and insurance carrier.  The attorney can act as a coach.  You need to understand both sides of the story.  You cannot promise confidentiality, because you do need to investigate the claim.  

The board has the right to know if there is a situation that could be a liability.

If you are on notice that there is a problem, you need to follow-up.  

You may need to put the accused harasser on an administrative leave, during the investigation (with pay).

The complainant needs to be protected from retaliation.  You cannot get rid of the employee who complains.  
Libraries should identify a lawyer that they can call, when needed.  When there is a problem, you want to know who to call.

The laws that apply include:
  • National Labor Relations Act
  • Education Law section 226(7)
  • NYS Human Rights Law applies if you have 4+  employees
  • Title VII applies if you have 15+ employees 
Third, can we get rid of the bad apple (a member of the board)? A board member cannot release information that was discussed in executive session.

The laws that apply include:
  • Education Law section 226(4) and (8)
  • Special District legislation
  • Open Meeting Law
  • Appeal of Nett 45 Educ Dept Rep 259 (2005)

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