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SPOILER ALERT!!

For those of you who need to know: in the end, the service at a regional council “counted.”

And now for the questions...

1. How should job candidates respond when faced with situations like this?
2. Do you have some guidance or strategies for navigating this issue?

When this question arose, my office looked at a variety of different local rules for civil service, hoping to find examples of service at a library system and regional council “counting” towards years of service at a library.

What we found was the opposite… local rules and guidance expressly limiting library service to chartered public libraries.

With no examples of common practice to cite, we had to make a legal argument.[1] Here is a modified, genericized version of what was said:[2]

At the request of my client, I’m providing this letter addressing whether a regional library council is a “library of recognized standing” as that phrase is used in your agency’s Civil Service “LIBRARY DIRECTOR” job description.

A regional library council is a creation of Education Law Chapter 16, Article 5, Part 2, Section 255.

A review of that law shows that a library council or system is unambiguously included as one of the many types of “Public Library” entities formed under that section of the law.
When the plain language of Section 255 is reviewed, it is clear that the state’s nine regional library councils are categorized under the law as “libraries,” together with association libraries, school libraries, library systems, Indian libraries, and other library entities recognized by the New York State Education Department (“NYSED”).

Of course, service at any type of NYSED-recognized library might not meet the experiential requirements of a particular job description, but that is another issue. For purposes of service at a “library of recognized standing”, service at a regional library council, library system, or other NYSED-recognized library can contribute to durational requirements.

Thank you for your attention to this matter.

As I have shared, this situation had a happy ending; the applicant’s years of service at a regional council were found to be service at a “library of recognized standing.” But oh, the stress created getting there! So, let’s consider the member’s questions with an eye to getting ahead of the issue.

Whenever the qualification of a place of employment is in doubt, ask your civil service department. If told “no,” remain calm and document the precise reason the service is not being accepted. Then, reach out to other resources for assistance.

As the member points out, a LOT of people have a stake in this issue! Aside from applicants, it can affect library systems and councils that want to ensure they remain attractive employers. It also can’t hurt to get a lawyer involved.[3]

In short, this is not a battle for an applicant to fight alone, and it shouldn’t be a “battle”—just a reasoned conversation between interested parties. By isolating the issue, staying calm, reaching out, and assembling persuasive authority, the right conclusion should be reached.

If a person does all that, and the service still isn’t found to count… well, that may be where the lawyer steps up.

The important thing is to act before the search closes. The further the agency gets into the process, the harder it can be to walk back from an original position and undo any damage.[4]

So: stay engaged, remain calm, and assemble your allies. Civil Service is human, too.

Thank you for an important question.

The best approach to standardize and streamline scheduling, timekeeping, benefits, and compensation management is to use a single automated payroll system that enables tracking of all accruals and leave time offered by your library.

Although this sounds obvious,[1] at institutions with multiple unions, different “types” of employees, and without centralized HR to coordinate things, transitioning to such a system can be quite complex, causing some libraries to delay implementation.

Facing that complexity head-on and transitioning to a single automated payroll system is worth it. Aside from the simple fact that it is only fair for an employer to record everyone’s hours consistently, there are significant compliance risks for imprecise or irregular payroll practices, including:

• Failure to retain payroll records (penalty: a fine of not less than five nor more than ten thousand dollars in addition to any other penalties otherwise provided by law);[2]
• Failure to accurately confirm compensation terms (penalty: damages of up to $250 dollars per day, per employee, unless employees are paid all wages required by law);[3]
• Failure to pay wages earned due to error or intentional under-payment, a.k.a. “wage theft” (penalty: the sum of five hundred dollars for each such failure);[4]
• Failure to abide by collective bargaining terms (penalty for breach of contract: compensatory damages and legal fees);[5]
• Failure to properly withhold state and federal income taxes (penalty: federal Class E felony, up to 5 years in prison[6] and a state penalty equal to the sum of the total amount of the tax evaded, or not collected, or not
  accounted for and paid over, and the interest that has accrued on
  the total amount of tax evaded on the date this penalty is first imposed
  until this penalty is paid with interest thereon.);[7]
• Failure to properly track accrued paid sick leave based on hours or days worked (penalty: may be subject to civil/administrative actions and/or criminal penalties, including but not limited to, an order assessing the full amount of the wage underpayment, 100% liquidated damages, and civil penalties in an amount up to double the total amount to be due);[8]
• Failure to pay overtime and/or properly track “comp time”;[9]
• Failure to properly track hours worked for purposes of New York State Retirement contributions (penalty: embarrassment as the NYS Comptroller conducts a review and correction);[10]
• Failure to accurately report hours works to the NYS Unemployment Insurance Program (penalty: many);[11]
• Failure to accurately report hours worked to a workers’ compensation insurance carrier (penalty: if intentional, a Class E felony);[12]
• Failure to accurately report hours worked to a disability insurance carrier (penalty: many);[13]
• Failure to accurately report hours worked to Paid Family Medical Leave insurance carrier (penalty: same as for disability—see footnote 13); and
• Failure to properly document hours worked in relation to 401k or 403b retirement benefits (if this leads to a “knowing misrepresentation” the penalty is a fine and/or up to five years imprisonment).[14]

Of course, not all these risks apply to all employer types. If a workplace doesn’t have a union, it doesn’t have the risk of a union grievance. If a workplace isn’t subject to the paid sick leave law, it can’t be fined for not following it. But every employer has an obligation to retain accurate payroll records and pay people for the time they have worked (whether they are salaried or hourly), and most employers have to follow at least half of the items listed above.[15]

The good news is that many of the responsibilities leading to penalties (like payroll recordkeeping) can be contracted out. And that is why employers use a professional payroll service and a standard system for timekeeping.

Setting up a contract with a payroll company is relatively simple, but getting employees to use the same system—especially if the switch involves new procedures—can be a struggle.

In particular, a transition to a new system can be difficult for salaried employees who don’t get paid by the hour but are expected to work a basic work week (usually set by policy). For such employees, “clocking in” can be antithetical to being a salaried professional, executive, or administrative employee; the whole point is you don’t have to punch in.

But there are many reasons for ALL employees to “clock in” (whether it is by noting their start time on a physical spreadsheet, or on the company system, or a vendor’s system). Aside from the obvious reasons the employer might have (assessing productivity), employees of all types should track their start and end times so there is a clear record of when they are working. Among other things, knowing when an employee was working is important for workers’ compensation claims for workplace injury.

In addition, it is healthy for salaried supervisors to know the experience of hourly employees; this includes using the same system whenever possible for tracking accrued sick leave, vacation time, personal time, and other days out (bereavement and jury duty being two prime examples).

When an employer is shopping for a new payroll system, it is important to know the different ways employee time is tracked and ensure the system supports those breakdowns. This is particularly important for employers that have to track sick leave and prenatal care leave[16] or for those who offer New York State retirement pensions.[17] So, basically everyone.

Once a payroll system is selected, there should be clear policy and protocol for entering time. Although it requires planning and resources, training on the new system so people know how to use it is important.

Thank you for a great question.

There is no law in New York State that prevents public library employees from volunteering at the library they work for, but there are other things that can forbid such volunteering or make it so risky that it is not worth it.

Those things are:

1. A union contract that forbids it.
2. A library board-approved policy that forbids it.
3. A municipal policy that forbids it and applies to the library because the library’s employees are covered by the municipality’s workers’ compensation insurance.
4. There is no clear path forward to volunteering, so everyone worries that it is wrong (this is the most common impediment).

A library that wants to enable employees to joyfully volunteer their time[1] can follow the checklist below to create a clear path forward.

A template letter for an employee volunteer is:

RE:     Volunteering at the ABC EVENT

Dear EMPLOYEE:

Thank you for agreeing to volunteer at the ABC EVENT!

During this event, you will be INSERT ACTIONS. Your volunteer service will be coordinated by EVENT LEADER.

EVENT LEADER knows that you are serving as a volunteer and that you may not be asked to perform any of your usual duties at the event. If there are any concerns about that, please alert me immediately.

The Library’s Volunteer Policy sets out the rules for volunteer service.

I hope you have a great time helping out with this event!

Gratefully,

DIRECTOR

Sample text for an “employee volunteers” section to add to a volunteer policy is:

Employees as Volunteers

Employees are welcome to volunteer at community events hosted by the Library and Library affiliates at or for the Library [such as the Friends].

Just like for all other volunteers, each employee volunteer experience will be confirmed by a letter or sign-up sheet that sets out the activities that the employee will do on a voluntary basis.

To minimize the perception of improper pressure to volunteer, employees will never be asked by the Library or its affiliates to volunteer; all service must be initiated by the employee expressing interest in a generally known opportunity.

Employees volunteering shall not perform their regular duties or use their employee access during the volunteer experience. Events that require the assistance of Library employees for things like opening and closing the Library and use of Library resources shall not rely on employee volunteers; use of employee access and/or employee proficiency with Library resources must be paid employee time. This must be taken into consideration when volunteer events are planned.

Employees who violate Library policy in the context of a volunteer experience may be subject to consequences, but such violation shall not be evaluated as job performance.

Employees shall not receive rewards or benefits for volunteer service from the Library, except those accolades given to all volunteers generally (for example, a public acknowledgement of service).

Thank you for a great question!

Yes, it is a valid concern.

Let’s break it down and explore why.

Once an employee is terminated—whether or not for cause—a former employer should have policies to govern the post-employment relationship.

At a bare minimum, these policies should address:

• If/how dates of employment are verified
• If/how references are given
• How requests for contact information are handled
• How former employee requests for information and action are addressed

This last item is the territory we’re in right now.

For a host of reasons (respectful relations, consistency and accuracy of information, liability...), requests for information and action[1] from former employees should be handled by one person[2] (even if that person ends up bringing in other people).

For (a positive) example, if a former employee requests a reference five years after leaving employment, the request should go to the designated person, even if the recommendation letter ends up being signed by the board president. This will ensure the request and the recommendation is handled just like any other, which avoids accusations of favoritism or inaccuracy.

For a not-so-positive example, if a former employee is seeking information for a legal claim (workers’ comp, wrongful termination, unemployment), that request should go to the designated person, even if the recommendation letter ends up being signed by the board president. This ensures that the information will be released only after the proper releases are in place (for instance, before a recommendation is sent, it is wise to get a waiver of liability).

The reason this “one stop shop” approach is important is because information from different sources can (in our positive scenario) result in inconsistent information that could hurt the former employee or (in our negative scenario) could result in a trustee or director providing information that could harm the library and even serve as the basis for a legal claim.

Trustees, in particular, should be mindful of their “duty of loyalty” when considering a post-employment request. The “duty of loyalty” means that when taking an action as a trustee (such as answering questions from former employees about their employment), the trustee is keeping in mind the interests of the library. If the library has a policy on post-employment inquiries, the trustee should also keep in mind the “duty of obedience,” which would require them to follow the policy.

This does not mean that library trustees and other leaders shouldn’t elevate the concerns of former workers! It just means that when they do so, it is per policy, and organized in way that doesn’t create undue risk to the library.[3] If the library messed up, that needs to be corrected, but from the legal perspective, how something is done is just as important as it getting done.

So, when there is a post-employment inquiry, follow the policy to respond to it. If there is no policy, adopt one.

Thank you for a great question.

Great questions!

Let's tackle[1] them:

Is this true?

Yes.  If you would like to look up the text of the law, which went into effect on November 13th, 2023, you can find it here: https://www.nysenate.gov/legislation/laws/LAB/590.

Does this new law really apply to ALL employers in New York (even a town or village public library)?

Yes.  Unlike other sections of the Labor Law, which sometimes define "employer" in a way that can exclude certain public libraries, the new Section 590(2) is part of Article 18 (“Unemployment Insurance Law”) of the Labor Law; Article 18 applies to ALL employers in New York State, even government entities.

Does this new law apply even if the employee is resigning or retiring?

Yes.  It also applies of the employee was on a contract that expired, was on a grant that ran out, was a seasonal employee, or any of a number of other reasons why a person who once has a job no longer has a job.[2]  Basically, if an employee is no longer an employee, or if an employee's hours have been cut to below 30, the notice must be provided.

Does this new law apply to no-show employees, those who requested to work less hours, or others who may have abandoned their employment?

Yes.  Even when an employee quits by attrition, asks to work below 30 hours a week, or goes away on vacation and never comes back,[3] an employer must determine what date is the date they were "separated" from employment, or the effective date of the reduction, and give the required notice.

Is there a form for this notice?

Yes!

The New York Department of Labor's newly revised "Record of Employment" form can be found at https://dol.ny.gov/system/files/documents/2023/11/ia12.3_0.pdf.

When does this notice have to be provided?

The new law requires employers to provide the notice "upon separation."  The DOL form's instructions say to "give this form to anyone who is permanently, indefinitely, or temporarily laid off; discharged; quits; or has their hours reduced to 30 or less each week"—with no mention of precise timing.

For that reason, until there is further guidance, the notice must be given as soon as possible.

For those whose status change is easy to pinpoint (for instance, when an employer tells an employee their job has been eliminated), the completed form should be given at the same time as the notice of termination. 

For slightly less definitive situations—such as when an employee fails to show up but doesn't call or quit—the completed form should be mailed[4] as soon as the failure to show up is converted to a termination.

This means a few things:

First, it means that if an employer has been a bit loosey-goosey[5] about when people are "separated from employment",[6] they need to tighten things up going forward.

Second, it means that if a public library has been a bit unclear on who provides the unemployment insurance (the library? … the municipality?), clarity on that topic must be achieved (and demonstrated via the "Record of Employment" form).

Third, for those employers who maintain a checklist of items to do when an employee is "separated from employment" (return keys, terminate passwords, update website and social media access, etc.), the "Record of Employment" form can be a new item on the "to-do" list.

Fourth, for those employers who must follow Labor Law Section 195(6),[7] your organization is already obligated to confirm separation of employment in writing within 5 days of the date of termination.  For employers obligated to provide this "195(6) letter", the "Record of Employment form" information regarding the last date of employment should be consistent with the information in the 195(6) letter.[8] 

Why was this law passed?

When considering this law, the New York State Assembly wrote in the legislative memo:

Many workers, when laid off or subject to a reduction in working hours, do not realize they are eligible for unemployment assistance.  Particularly in the case of partial unemployment assistance there is a lack of awareness about eligibility. To compound this issue, employers are disincentivized from informing their employees about eligibility because their unemployment insurance payments may increase when employees or former employees file for unemployment assistance. In the wake of catastrophic job losses caused by the COVID-19 pandemic, it has become clearer than ever that underemployed workers need robust public support mechanisms to weather an economic storm.  By requiring employers to inform employees who are laid off, or who have had their hours reduced, of their potential eligibility for unemployment assistance, this bill bestows on workers better awareness of their rights and options for supporting themselves and their families when they need it the most.

In other words: people entitled to benefits didn't know they could get them.  This new notice requirement is to make sure such people are aware and are able to timely apply.

Is there a model policy for this law?

Employers do not have to have a written policy to comply with the law, but for those who want to adopt a policy to help assure compliance, here is a template[9] to work from:

Policy

To document compliance with Labor Law Section 590(2), it is the policy of the INSERT NAME to immediately provide each former employee with a completed "Record of Employment" (as such form is maintained by the New York Department of Labor) upon:

• Notice of termination
• Confirmation of separation from employment due to retirement
• Termination due to abandonment of the job by the employee ("no-show")
• Voluntary resignation
• Reduction of hours to less than 30 per week

Such documentation shall be as contemporaneous with the separation of employment or reduction of hours as possible, but in no event shall it be later than five (5) days after the last date of employment or effective date of the reduction.

From the legal perspective, this question has a very simple answer: when it comes to gender, people should be referred to in the way they request to be referred to.  So, until the student informs you that the way they wish to be addressed (by name, pronoun, or honorific) has changed, it is good to stick with the last thing they told you.

This is also a good approach from the practical perspective.  Not every person who shows physical signifiers typically associated with a change of pronouns is transitioning.  Some people may experience physical changes, but their gender will remain the same.  Still others may have zero perceptible physical changes but need to change names and pronouns.[1]  All of which are compelling reasons to let the people take the lead in defining themselves, and not ask, but be ready to listen if they make a request.

That said, your instinct that this student may at some point ask to be referred to in a different way might be right on, and it is good to recognize that your support may be important to them.

So: how can a worker support a co-worker by letting them know they would honor a request to change a defining[2] part of their identity?

Unfortunately, some of the most fundamental ways to create a trans-inclusive work environment—policy, and leadership action—might not be accessible even to a supervisor.  Policies governing use of name tags, signature lines, and other ways of normalizing clarity of pronoun use and inclusive language (not starting meetings with "ladies and gentlemen",[3] for instance) can all be used to create an environment where it might be easier for a person to define themselves.[4]

But what about supervisors and co-workers who can't control all of that?

In the higher education environment, it is important to remember that for student workers, their relationship with co-workers may be one of the more meaningful routine interactions a student has with a supportive elder/mentor.  That spirit is part of this question; the member has known the student for years and wants to let them know they can safely embrace any new identity with them.

But the fact is: the student will likely only take that step when they feel it is safe for the student to do so.

So, rather than asking, it is best to simply let the student know that you are a person who cares for their well-being, and that you respect the person they are.  If you would like, you can also model that you are personally trans-inclusive, by saying or displaying supportive things (even a button or sticker can be a positive sign to someone seeking support).

But at the same time, co-workers seeking to support a person need to remember that as a co-worker, they are only a part of an overall work environment.  While a co-worker may be supportive, a person might not be ready to trust the entire work environment with a name change or other shift in identity.  That is a personal decision, and the best thing a co-worker can do is empower that person and give them the time and space to make it themselves.

By letting a person know you respect them, and that you value them, you create the space for them to share what's important to them on their own terms.

So, my HR advice is to not ask, but to consider the ways in which your work and work environment provides you with opportunities to create an inclusive space for both your co-worker and for all people who are LGBTQ+.

Thank you for a compassionate question.