Marti Minor Case Studies for December 2013 Directors Mtg


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Marti Minor Case Studies for December 2013 Directors Mtg

  1. 1. Legal Questions by Georgia Librarians CASE STUDIES PART II DECEMBER 2013 MARTI A. MINOR JD, MLIS
  2. 2. 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.
  3. 3. Employment Issues
  4. 4. 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.
  5. 5. 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
  6. 6. 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
  7. 7. 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
  8. 8. 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 FMLA Leave 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.”
  9. 9. 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
  10. 10. First Amendment Issues
  11. 11. Patron-Patron Solicitation Rights Limitations  Hand distribution of  Library’s code of religious materials receives high level protection by Supreme Court  Public libraries are traditional embodiment of marketplace of ideas conduct  Cannot disrupt others’ use of the public library Kreimer v. Morristown
  12. 12. Patron-Patron Solicitation: Establishment Clause  What about separation of church and state?  Private speech v. governmental speech
  13. 13. 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.
  14. 14. 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.
  15. 15. Privacy/Confidentiality
  16. 16. 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.
  17. 17. 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
  18. 18. 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)
  19. 19. 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).
  20. 20. More Topics Discussed in Written Materials  Mandatory Direct Deposit  Non-profit Status of a Public Library  Nepotism/Conflict of Interest on Hiring Committee  Forcing or Encouraging Retirement
  21. 21. Topics for Spring 2014 I need topics! Send your questions and suggestions for the spring meeting to Julie Walker.