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.