Employee Rights

Some questions are tricky, some questions are complex, and some questions are simply a Huge Spider Web of Extremely Intricate and Dangerous Contingencies.

Not to be too dramatic, but this question is that last one.

What creates this tangled web?[1] Let’s explore the threads:

Thread One: The ALA Code of Ethics

Because the Code requires advocacy for proper working conditions, the ALA Code of Ethics may actually encourage what could be perceived as “disparagement” of an employer or financial supporter.

Here is the provision:

We treat co-workers and other colleagues with respect, fairness, and good faith, and advocate conditions of employment that safeguard the rights and welfare of all employees of our institutions. [emphasis added]

So, before adopting a restriction on employee communications, a library must consider this ethical obligation.

Thread Two: State and Federal Law

Both state and federal law can protect an employee’s right to complain about their working conditions.[2] And while not every type of complaint is protected,[3] given recent policy statements and cases (see footnote 2), it is wise to not paint what's barred with a broad brush.

Thread Three: State and Federal Constitutions

For a public library or municipality, barring disparagement of the municipality risks violation of both the state and the federal constitutions. I know that doesn’t apply directly to the library in question (since it is an association library and thus non-governmental), but it bears mentioning.

As does...

Thread Four: Civil Service

For Civil Service employees, if discipline for “disparagement” can be portrayed as “retaliation,” there could be a claim under Civil Service Law Section 75-b.[4]

And finally we have...

Thread Five: Fear

While not precisely a legal issue, limiting employee speech can be a major drain on morale, which in turn can lead to employee discontent, which in turn can lead to legal issues. To avoid that, it is best to aim for an environment that solicits and welcomes feedback, not one that stamps out criticism.

So, what can a library—mindful of its reputation and how its employees can impact it—do to protect itself?

Certainly, a library can require an employee writing or speaking publicly about the library to emphasize that they are only speaking for themselves.

Second, any employer can and should emphasize to employees that harassing, discriminatory, threatening, and abusive conduct—in and out of work, online and offline—may need to be addressed by the employer if it affects the work environment.

And third, a library can affirm that all its employees have a right to develop and express their own opinions, so long as they do not use library resources to convey them (no political candidates endorsed on company time!).

The language the member describes in the municipal policy sounds to me like a holdover of policies from the early 2000s. For the reasons discussed above, this kind of language has been removed from many policies over the past two decades. Case law and regulatory agency commentary (a tiny sampling of which are cited in this answer) show why.

Thank you for joining me in the spider web with an excellent question!

There are many scenarios where one family member supervising another goes just fine: everyone gets along, the supervisor’s feedback and constructive criticism is cheerfully received, and everyone—from trustees to fellow employees—finds things fair, above-board, and ship-shape.

There are several other scenarios where one family member supervising another goes horribly awry: co-workers are mistrustful, the supervisor’s feedback and constructive criticism is ignored, and everyone—from trustees to fellow employees—finds things unfair, imbalanced, and out of whack.

None of the reasons in the “horribly awry” scenario are reasons why an employee “cannot continue to be employed,” but rather, are reasons why such scenarios should be avoided in the first place, and, when they can’t be, why appropriate steps should be taken to mitigate them.

This same is true of the “legal pitfalls.” While there is generally no law barring such a relationship,[1] but there are certainly things to worry about and mitigate, including: conflict of interest, bias during civil rights investigations, contract compliance, and reporting theft/whistleblowing.

Let’s look at those “things” more specifically:

Factor	Risk	Mitigation
A parent supervises a child and has to conduct their annual performance review.   (Conflict of interest)	That the supervisor will not review the employee as rigorously as others.	The supervisor’s supervisor, and/or a member of the personnel committee participates in the review.
A sibling supervises a sibling and has to require documentation after three days of sick leave.   (Conflict of interest)	That the supervisor will not require the same level of documentation required by policy, because they trust family.	The supervisor is careful to uniformly apply rules and document same.
A cousin supervises a cousin and decides who gets to pick up extra work and OT (or who gets out of it).   (Conflict of interest)	That the supervisor will either give the opportunity to earn more money to a family member and/or NOT require them to put in extra hours.	The supervisor’s supervisor, and/or a member of the personnel committee assist with assignment of work that is not routine.
A parent supervises a child and has to address their alleged sexual harassment of a co-worker.   (Risk of bias)	DO NOT DO THIS   For this reason (among others), policies should always have more than one person to report civil rights violations to.	To ensure there is not risk of an appearance of bias, the report MUST be passed on to the next level of authority immediately.
A child supervises a parent on a grant-funded project the parent is a sub-awardee on, or selects them as the provider, or arranges for them to get the contract.   (Conflict of Interest and Contract compliance)	DO NOT DO THIS   Failure to properly declare and manage a conflict of interest could jeopardize compliance with the terms of a grant.	Employees who are in a position to ensure a family member may become a contractor should declare the possible conflict as soon as possible and be removed from the decision-making and supervision.
A spouse supervising a spouse and has to lead a team with several other members through a stressful new project (like construction, or a new type of event).   (Conflict of Interest and Risk of Bias)	While possible favoritism and bias during routine operations can be mitigated with routine procedures, a new project can bring new and unanticipated pressures.	Whenever possible, ensure there is another line of supervision on a new project, so the novelty of the situation can’t present unplanned-for concerns.
A cousin supervises a cousin and catches them taking funds from the petty cash.     (reporting theft/whistleblowing)	Ouch.	Any type of concern involving suspected theft or mishandling of employer resources and a relative should always be reported the next level of leadership, so the responsibility for deciding what to do (or not do) resolves at the highest level of decision-making.

So, to be clear: unless there is a local law, bylaw or policy that prohibits it, an employee can supervise a relative,[2] but as the chart above shows, things can quickly get complicated.

By thinking ahead and setting up procedures to mitigate possible complications, accusations of bias, unfairness, and conflict of interest can be either avoided, or shown to be unfounded.

Thank you for an important question.

Here are the state and federal laws specifically barring an employer from disclosing why an employee is out on sick or personal leave.[1]

• New York State Human Rights Law (NYSHRL), whose regulations require that employers maintain the confidentiality of medical information disclosed as part of requesting disability accommodations. 
• The New York State Workers’ Compensation Law, which requires employers maintain the confidentiality of medical records used to assess benefit claims.
• The Americans with Disabilities Act (“ADA”), which imposes very strict rules for handling information obtained through post-offer medical examinations and inquiries. 
• The Health Insurance Portability and Accountability Act (“HIPAA”), which requires employers to protect the privacy of employees' personal health-related information in relation to health insurance benefits.
• The Genetic Information Nondiscrimination Act (“GINA”), which prohibits employers from requesting or using employees’ genetic information.
• The Family and Medical Leave Act (“FMLA”), which requires that all records and documents relating to medical histories of employees or employees' family members created for purposes of FMLA be kept confidential.

This sounds straightforward, but of course, it isn’t, since only the first two laws (NYSHRL and Workers’ Compensation) apply to all employers in New York State, and not all disclosures related to sick or personal leave are “medical information” or private health records.

Here are some examples of disclosures that could be forbidden by law, if the law applies to the employee in question.

• A library employee temporarily reduces their hours using FMLA leave to address a personal health issue; when the library’s board of trustees approves a budget item to hire a temp to fill the extra hours, a board member says at an open meeting: “This is to help with consistent service as [NAME] deals with [DIAGNOSIS].”
• A museum employee is absent from work as a disability accommodation under the ADA, and the co-workers covering her shift are told that the schedule change “is because of [NAME] has [DIAGNOSIS].”
• A warehouse employee who was injured on the job is on leave covered by Workers’ Compensation, and his supervisor schedules a time to go over the accident and review safety precautions with co-workers.
• An office employee who needs disability accommodation provides proof from a treating physician and the documentation is left on the table in the break room for all to see.

Here are some things that could be gross violations of privacy, but without additional factors, would not be legal violations.

• An employee is out on paid sick leave, and although an employer can’t require confidential medical information to use paid sick leave, the employee lets his supervisor know that he has the flu; the supervisor then tells everyone else they work with to “be on the lookout for flu symptoms, since [NAME] is out with a pretty bad flu.”
• An employee is out on New York State paid family medical leave (not FMLA leave, due to the size of the employer) to help her spouse with a serious medical issue. Although the employee has not shared the reason for the leave with co-workers, the HR director organizes signatures on a sympathy card that alludes to the reason for the leave.
• An employee is on discretionary unpaid personal leave to help out a friend who is ill and the reason for the leave is referenced throughout the workplace frequently.
• An employee tells a coworker outside of work time that they can’t take on more hours due to issues with anxiety and depression, and the co-worker shares that information with colleagues.[2]

That said, the answer to this question really is: if an employee is concerned that their information may have been improperly shared or used, or if an employer is concerned about properly safeguarding employee information, consult an HR specialist or at attorney to confirm compliance. 

For employees, there are often legal clinics that can address a question of this nature; check with your county bar association. For employers, there is “Ask the Lawyer” and your local employment and labor law attorneys.

This is a good one to get right, from the start, for everybody. Thank you for trusting me with this question.

Several considerations impact the answer to this question:

For a public library, the bare minimum record retention periods are found in a document called "the LGS-1."[1]  The LGS-1 has rules for retention covering everything from your library's charter, to how long you hold onto circulation records.

For an association library, which does not have to follow the LGS-1, those retention rules in the LGS-1 are a good baseline, but you have a bit more latitude.

However, no matter what baseline a library or other cultural organization chooses to adopt, it is good to keep in mind that required retention periods are routinely extended by things like:

• Insurance policy requirements
• Union contracts (for personnel records)
• Grants, and other sponsored funding
• Lawyers instructing a client to retain records as part of a "litigation hold"

In addition, while it can't be considered a formal "retention period", documents are also "retained" by institutions simply due to a tendency to hoard records.  At times, this can be a healthy tendency (like when letters from a first grade class from 1945, written to thank the local library for a story hour, are found in moisture-resistant storage, and they are turned into an exhibit).  Other times, it is not so healthy (like when borrower records from 5 years prior[2] are accessed during a burglary or hack).

For a large library (or museum, or other cultural institution) with robust funding and a large staff, "records management" per the LGS-1 or a customized "record retention policy" is often part of a person’s (or department's) job description--and is supported in the annual budget.  For a smaller library (or museum, or other cultural institution) with less-than-robust funding, and a smaller staff, "records management" is often an afterthought.  This can cause complications when the records pile up, and there is no person--or budget--to sort through them and make sure they are properly retained/purged.

But this question is about retention periods, not the drama they can cause!  So here is the answer:

For the types of records mentioned in the question ("employee records, payroll records, sales and purchase records, mortgage and loan documents"), the retention periods vary; some are "permanent", and others are as short at 6 years.  The LGS-1 (which will pop up when you search "LGS-1") will give you the breakdown.

For an association library that doesn't want to follow the precise requirements of the LGS-1, but still wants a retention policy, below is a model policy.

Thank you for submitting an important question!

 

[ABC] ASSOCIATION LIBRARY

RECORD RETENTION AND DISPOSAL POLICY

Items in yellow are to be changed or removed

Policy

The ABC Library retains and disposes of records as required by law, contracts, and based on the board's determination of what is in the operational best interests of the Library.

I.        Records are retained as follows:

-Association Library Charter, bylaws, Plan(s) of Service, Annual Reports: PERMANENT

-All records made available per the Open Meetings Law: PERMANENT

-Deeds: PERMANENT

-Contracts: (includes leases, mortgages, loan documents, vendor contracts, employee benefit contracts, warrantees, use of independent contractors): Seven years after termination of all obligations and rights created by contract; in some cases, PERMANENT. See "Archives."

-Employee-related: Seven years after termination of employee.  See "Archives."

NOTE: This will be impacted by an association library's union contracts, employee manual provisions, and employee-related policies; check these documents to ensure consistency.

-Fiscal & Financial: Seven years, unless the relevant fiscal policy, document or transaction it is related to requires longer. See "Archives."

-Archives: PERMANENT

-Records pertaining to library operations (based on the LGS-1 to ensure consistency with non-association libraries in the XYZ Library System):

-Accession records: 1 year after accessioning procedure becomes obsolete

NOTE: Some libraries accession manuscripts, rare books and special collections, but not their general library holdings. In these cases, the accession records need to be retained only for the kinds of materials still accessioned.

 -Informational copies of records prepared by and received from public library system, including but not limited to directories, minutes, budgets and reports: 0 after superseded or obsolete

-Directory of public library system and member libraries, prepared by public library system (member library's copy): 0 after superseded or obsolete

-Library card application records: 3 years after card expires or is inactive

-Borrowing or loaning records: 0 after no longer needed

-Interlibrary loan records, including requests to borrow or copy materials from other libraries, receipts for materials, copy logs, accounting records, and circulation records

a) When no copies of original materials are requested: 0 after no longer needed

b) When copies of original materials are requested: 5 years after order is completed

-Catalog of holdings

a) Manuscript or published catalog: PERMANENT

b) Continuously updated catalog: 0 after superseded or obsolete

-Individual title purchase requisition which has been filled or found to be unfillable: 1 year

-Records documenting selection of books and other library materials:

0 after no longer needed

-Library material censorship and complaint records, including evaluations by staff, patrons' complaints and record of final decision: 6 years after last entry NOTE: Appraise these records for historical significance prior to disposition. Some library censorship records deal with serious constitutional issues and may have value for future research.

-Patron's registration for use of rare, valuable or restricted non-circulating materials: 6 years

-Program and exhibit file documenting planning and implementation of programs, services and exhibits sponsored or co-sponsored by the library, including but not limited to photographs, sketches, worksheets, publicity, brochures, exhibit catalogs, inventory lists, loan agreements, correspondence, attendance sheets or registration forms, and parental consent forms:

a) Parental consent records: 6 years, or 3 years after child attains age 18, whichever is longer

NOTE: Photo release records are covered under item no. 68 in General Administration section. Local Government Schedule (LGS-1) Library/Library System

b) Attendance sheets and registration forms, when no fee is charged: 0 after no longer needed

c) All other records: 6 years after exhibit closed or program ended

NOTE: Appraise these records for historical significance or value for collections documentation prior to disposition. Some of these records may have continuing value for historical or other research and should be retained permanently. Contact the State Archives for additional advice

II.       Records are disposed of as follows:

At the end of the retention period, physical copies are purged via shredding as their retention period expires.[3]

At the end of the retention period, electronic records are routinely disposed of by [insert input from your IT professional].

Archives

Prior to purging, all records of the Library are appraised for historical significance or value for collections documentation prior to disposition. Some of these records may have continuing value for historical or other research and should be retained permanently. Records retained permanently due to historic or research value are designated as "Archives."

 

 

---

[1] For more "Ask the Lawyer" on the LGS-1, see Board of Trustees Notes Retention. The 2022 version of the LGS-1 was, as of April 11, 2022, found here: http://www.archives.nysed.gov/common/archives/files/lgs-1-2022.pdf.

[2] I know library systems are very good about ensuring borrower records are purged from ILS once they are no longer needed, as authorized by the LGS-1.  This is just an extreme example to make my point.

[3] For more information on appropriate ways to dispose of physical copies, visit http://www.archives.nysed.gov/common/archives/files/mr_pub41.pdf.

This question needs to be answered on a sliding scale.

Here are three scenarios to show how the scale can slide:

Scenario 1: "Scrapbooking"

A museum makes robust use of social media to connect with its community.  At different events, a staffer or two are expected to take lots of photos, including shots of staff and guest speakers interacting with the community.  Members often comment how much they enjoy the images and connectivity.

Since the Museum got in on the ground floor of social media and the practice started on the Museum's website, some of the content is almost 3 decades years old ("born and aging digital"). At this point, some of the employees in the images have not only simply moved on--they've retired.

No written, signed permission to use the employees' images is obtained.

 

Scenario 2: "Image Crafting"

A library is working to show its commitment to diversity, equity, and inclusion.  The employee in charge of the web site and social media culls through photos of employees and patrons to post selected images on static pages that refer to a DEI commitment; while other use of the website and social media is managed as usual, these pages remain unchanged as stand-alone statements.

No written, signed permission to use the employees' images is obtained.

 

Scenario 3: "Stone Cold Marketing"

An association library is creating a brochure to kick off a capital campaign to build a new library on a donated piece of property.  The donated land is more centrally located in the library's area of service.  To raise funds for the hoped-for building that will serve a new generation of library users, the library asks all the employees and their kids to attend a photo shoot on the new land.  The idea is they will sit on blankets, reading, on the currently-empty lot, and the library's graphic designer will put a semi-transparent rendering of the future building over them, showing the library of the future.

No written, signed permission to use the employees' images (or their kids' images) is obtained. 

 

In New York, the law is pretty straightforward on the unauthorized commercial use of living people; NY Civil Rights Law Section 50 "Right of privacy" says "a person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor."

Recently, the law was expanded to restrict the commercial use of the image of deceased "personalities": NY Civil Rights Law Section 50-F 2. a. provides "Any person who uses a deceased personality's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without prior consent from the person or persons specified in subdivision four of this section, shall be liable for any damages sustained by the person or persons injured as a result thereof."[1]

"Ask the Lawyer" has addressed this issue a bit before: see https://wnylrc.org/raq/employee-privacy-and-image-use and https://wnylrc.org/raq/posting-patron-images-facebook-when-image-release-required, but we haven't focused on solutions to the question posed by the member: If an individual who no longer works at an institution finds that their picture is still being used by said institution, whether in promotional photos or on staff/faculty pages, does that individual have any legal recourse?

This is where our scenarios come in.

If the use is what I've called "scrapbooking" in the first scenario--part of a collection documenting events as they unfolded, and not featured or linked in a way that advertises the institution or asks for money--the law does not have much recourse.   That said, a former employee can always ask for an image to be removed as an act of courtesy, and if there is a compelling reason (safety, emotional well-being, not wanting to be affiliated with the institution any more) an attorney could help the person isolate and make a convincing argument for removal.

As the scale continues to slide, if the use is what I've called "image crafting" (the use referenced by the member in the question), if written permission was not granted, there may be grounds for demanding removal under the law.  A current or former employee who feels strongly about this should consider working with a lawyer, since the first request should accurately set out the basis for the requested removal.

On the final end of the scale, when the use is clearly for "advertising purposes, or for the purposes of trade" (like a posting soliciting a capital donation), written permission should have been obtained, and a former or current employee--unless their job description includes serving as a model or posing for published pictures--has a strong basis to demand removal under the law.

What can a cultural institution do to avoid the risk of unauthorized commercial use of an employee's image?  A few things:

First, unless it is part of the employee's job description, do not require use of the employee’s image on print publications and social media.  If the institution has determined that, for the sake of public relations and service, all public-facing employees will have their picture on the website, it should ensure that due attention to safety and privacy is factored into the requirement.[2]

Second, even when an employee seems "okay" with being featured in a publication (print or online), it is good to get written permission. While not all uses will qualify as "commercial" and thus risk violation of the law, it shows respect and proper attention to employee agency and safety.

Third, if feasible, consider a default position that every employee, unless it is in their job description, has "opted out" for use of employee images on institutional publications.  Then ask who would want to be featured.  For example: "To respect employee privacy, the library does not intentionally use the name and images of employees except to the extent they are listed on the website and in published board materials.  If you would like to be featured in library social media and publications, please alert the Director, so we can obtain a written image release.  This is not a requirement!"

Fourth, if your library or other cultural institution needs to rely on the personality and persona of an employee to the point where use of their name and image in association with the library is part of their job, consider putting that in their job description.  For example, "The [insert title] position is a community-facing position and in addition to routine interaction with the public, will be required to interface with the public via materials published by the [library] from time to time, including use of their name, signature, and recorded images of their likeness and voice."

And fifth, when in doubt, get an image release.

An image release can come in many forms; to be on the safe side, an image release should be custom-written for your institution, and the use it plans to make of authorized images.

That said, here is a sample:

Image Release

NAME, who is at least 18 years of age, consents to the use of their image, name, and likeness, as governed by New York Civil Rights Law 50 for purposes of informing the public about events, opportunities, and initiatives of the XYZ Library, including fundraising initiatives.  As an employee, I understand that such consent is not a requirement of my position, and I may revoke this consent at any time by sending a written request to make no further use of my image under this Image Release. I understand that "revoking consent" means no further use will be made of my image, but that past use will not be removed. Unless revoked by me personally, this release shall be binding on my heirs and cover the institution's use of my "right of personality" as covered by New York Civil Rights Law 50-F.

 

DATE:______________

SIGNATURE:______________________

WITNESS:____________________________

 

Records retention period of this release: PERMANENT.

 

A well-written release can cover you whether you are "scrapbooking", "image crafting", or engaging in "stone cold marketing."

Thank you for a thoughtful question!

 

 

---

[1] I won't list them all here, but there are many exceptions to this law for use by artists, journalists, etc.  If you are just learning about Civil Rights Law 50-F in this RAQ, please don't let it stifle your archive, art, or journalism! You can find the list of exceptions here: https://www.nysenate.gov/legislation/laws/CVR/50-F.

[2] I could write a whole chapter on this consideration, but we'll leave it there for now.

The care required when addressing union-related issues in so critical, we're going to start with a small cautionary poem:

When employees seek to organize

A good employer must emphasize:

Contract, practice, policy...

If not there, don't intervene.

Why do I have to start this answer with a warning?

When it comes to employees communicating about their working conditions--whether they are in a union, talking about forming a union, or posting notices about union activity--if the activity is not governed by a contract or clearly established policy[1], there should be no effort to limit the activity.  Rather, the director and/or the board should consult the library's lawyer, and make sure you proceed with written advice from them.

This is the only way to safely proceed.

This extreme caution is necessary because: 1) if perceived as seeking to improperly limit communications, an employer can cause immense damage to employee relations in a short period of time; 2) both the National Labor Relations Board and the Public Employee Relations Board (who will handle any disputes, based on the "type" of library[2]), broadly recognize workers' right to organize and communicate regarding workplace conditions and union activity. 

As the member's question alludes to, there are protections in place an employer must honor.  For instance:

If there is an employee break room where pretty much anything can be discussed[3], workplace conditions and union organizing efforts can also be discussed;
If there is a bulletin board where general information can be posted, union-related materials can be posted there;
If employees are allowed to chat about pretty much anything they want as they perform work tasks, discussions of workplace conditions and organizing can't be barred.
These examples sound simple, but in real life, this issue is complex; a long line of cases going back to the 1940's[4] shows that there is an ever-changing balance between what a union and workers can and can't do on company property (and/or on company time).

This complexity is present even when union contract is in place. 

For instance, a union contract may provide something like this clause (taken from a contract posted on the PERB site):

Just as referenced in the member's question, this contract language allows for a "reasonable" use of on-the-clock time to post notices, distribute literature, transmit communications, and consult with representatives on contract issues.  This is a common clause in union contracts, and it is based on prior court decision stating that some access to employer resources may be required for union activity.

But as the member writes: "...how much time is reasonable?"

The only answer I can provide is: there is no right answer except to get a good answer about how to get the right answer.

Or, to add to our cautionary rhyme:

When employees seek to organize

A good employer must emphasize:

Contract, practice, policy...

If not there, don't intervene.

And if something needs more clarity

Ask your lawyer for strategy.

Many contracts, policies, or past practices will list (or have citable past examples of) what is a "reasonable" time for a meeting.  If, however, there is no clear information allowing the parties (the employer and the bargaining unit or employee) to discern what amount of time is "reasonable", the parties will need to discuss it.  For the library (the employer) this means calling in their lawyer to confirm:

 how to raise the issue
with that specific union,
under those precise circumstances, and
at that specific time.
This may sound overly paranoid[5], but sadly, it is not.  Here is 2023, the NLRB keeps back-flipping on precent, and the PERB doesn't have much out there on what "reasonable" means.  This leaves me without any solid precedent or definition to point to (and even in the most stable of times, the interpretation of "reasonable" is highly fact-specific).

Without clear shared understanding between the employer and the unit, a well-crafted legal strategy that considers the big picture is the only responsible[6] way to address union-related concerns, including ones related to union activity on company time. 

Because of this, a board or director who believes it is in the best interests of their library to raise such a concern should proceed only after securing attorney-client privileged legal advice based on a thorough analysis of the contract (or policy), past practice, and the present situation.[7]  The approach (which should be in writing) must be crafted so the outreach doesn't risk the appearance of undue pressure or restrictions on protected activity, and to ensure the parties reach (and document) an articulable understanding that both can rely on with confidence. Ideally, the way the issue should be raised in a way that will reinforce (or create) trusted pathways of communication with bargaining unit leadership. 

This technique will be different for different libraries.  Some will have to consider recent decisions from the NLRB[8], others will have to review decisions from the PERB[9].  Regardless of library "type", the precise contract, relevant policies, past practice, and overall climate and relationship will need to be considered. 

Once a strategy is in motion, if the lines of communication have been positive, the issue may be able to be resolved "at the speed of trust."  If the relationship is hostile or rocky, raising such a concern may result in other matters being brought up, with the worst-case scenario leading to filing a grievance or accusations of a labor law violation. All of this needs to be considered before the employer's position is communicated to the employee[10] or the union.

In fairness to the member who asked the question with the reasonable hope of getting an actual answer[11], I have to say that both the NLRB and the PERB are very fond of the word "reasonable"-- but provide very little guidance as to what the term means.  Looking at NLRB decisions and other authorities, "reasonable" seems to be whatever makes sense to the decision-maker at the time.[12] There just isn't a more reliable answer.

Because of this, what's important is that the employer and the union have clarity about what they jointly agree is "reasonable" and that they use good communication to maintain that understanding over time.

Or to add a final couplet to our poem:

When employees seek to organize

A good employer must emphasize:

Contract, practice, policy...

If not there, don't intervene.

And if something needs more clarity,

Ask your lawyer for strategy.

But most critical to good relations

Are trust and careful communications.

 

May your union-employer relations be smoother than my rhymes!

 
[1] Note that I say "activity", not "communication."  More on this soon.

[2] The PERB will handle libraries that are "public employers", the NLRB will handle the rest.

[3] Except things that are harassing, discriminatory, threatening, etc...

[4] Starting with this case here: https://www.law.cornell.edu/supremecourt/text/324/793

[5] I usually sound so hopeful and encouraging in these columns!

[6] By "responsible", I mean: "less likely to cause a grievance, more likely to foster good relations, less likely to cause needless resentment and panic, more likely to cost less legal fees in the long run." 

[7] This is not the time to call the lawyer you know to get a quick informal opinion.

[8] Found at https://www.nlrb.gov/cases-decisions/decisions

[9] Found at https://perb.ny.gov/nys-perb-board-decisions/

[10] If it is a union matter, don't raise it with the employee, if the contract calls for something else.

[11] Which they clearly haven't gotten, but truly, this is the most responsible way to reply.

[12] Okay, it's not that bad, but still, the flip-flipping out there in Labor Law jurisprudence is de-stabilizing the legal playing field.  If you know an attorney who regularly negotiates union contracts, say "Hey, how about that Caesar's decision?" and you'll likely get a tense smile.  https://www.nlrb.gov/case/28-CA-060841

​

This is one of those questions that a thoughtful attorney, wishing to be thorough, could write a book about. However, "Ask the Lawyer" is not a book, so we'll see what I can do in about one thousand words!

To give some useful answers, and also stick within our word limit:

1.  If a library/employer needs to convene a meeting of employees and decides it will use videoconferencing tech to do so, and then states an expectation that all participating employees will turn their cameras on during the meeting, no law in New York bars such a requirement.

2.  If employees of a library/employer that requires, as a matter of policy, that participants in a video conference must turn their cameras on, decide to demand via a collective bargaining agreement, or through policy, that keeping a camera "off" should be an option for an employee, that could become a negotiated or policy-based term of employment.  But an employer could say "no" when this is asked/demanded (and then take the hit on employee morale and/or union relations).

3.  If a solitary employee of an employer who requires participants in a video conference to turn their cameras on decides being on-camera is unacceptable to them, and they request an exception to the rule, that is a reasonable request--but there is no obligation on the part of the employer to honor it (and in fact, special exceptions could cause issues...more on that in a bit).

4.  If an employee has a disability that prevents them from working effectively while on camera, that employee could request keeping the camera "off" as a disability accommodation, and the employer would have to consider the request per their disability accommodations policy (Based on the particular circumstances, this may or may not result in a decision to grant the requested accommodation).

5.  Now, with respect to the use of pictures: if an employer uses an employee's image--taken as either a photograph, a screenshot, or through any other means--for commercial purposes without the employees' permission, that could potentially be a violation of the law.  This is why employers who wish to use their employees' images in catalogs, advertising campaigns, and other publications as part of commercial operations should obtain written permission for such use.[1]

6.  Library/employers who wish to be proactive about protecting employee privacy, while also acknowledging that a library's workforce does often play a public role in their community, should use thoughtfully developed policies to find the balance between public relations and employee safety and privacy. A well thought-out and routinely re-evaluated use of a "Social Networking Policy," a "Media Relations Policy," and a "Branding and Promotions Policy"[2] can achieve this balance.

7.  And now, for some thoughts on how this all fits together.

[Clears throat, steps on soapbox]

There is no one right way to do any of the above-listed items, but because having a solid process that respects the privacy of employees is part of attracting, developing, and retaining a qualified and dedicated workforce--as well as promoting the operations of the library--it is important that a library/employer find the way that works for them.

On the employee side, for library employees who are concerned about their privacy, or about being compelled to turn a camera on, if at all possible, raising the issues gently with management prior to any type of crisis point is a good idea.[3] For libraries that are using name tags, or have specific policies related to employee safety/privacy, or use of cameras on site, any of those policies are good entry points for consideration of these issues.

Law aside, as a business owner, and as the participant in (now) more online meetings than I can count,[4] I have found that it is very important to set the norms for online meetings[5] so that employees know what the expectations are.

How is that done?  When convening a meeting, at least until a group knows what the norms are, it is good to give a few of the ground rules. For instance, a good set of opening ground rules could be:

 "Thanks everyone for gathering today. While we can't be together in person, it is good to be together for this important topic. For this meeting, cameras are optional, but we ask that if your camera is off, you use a picture of your face for ease of communication. This meeting is not being recorded, and we ask that you refrain from taking screenshots unless you ask first. If you have questions during the discussion, feel free to put them in the chat. Our note-taker today is [Person], and if you have items that you want to make sure end up in the notes, please put those in the chat as we meet. The notes for the meeting will go out by tomorrow."

Another example, very different but just as enforceable, would be:

Thanks everyone for gathering today.  While we can't be together in person, it is good to be together for this important topic. For this meeting, we do ask that you keep your camera on, so we are all using the same modes of communication. Also, so we have a good record of the information we'll review and the decisions we'll make, this meeting is being recorded. As a courtesy, please do not take a screenshot unless you ask first. If you need to make a comment, please raise your hand, and I as moderator will get you in the queue. We don't have a note-taker for today, so please make your own notes for any points to follow-up, or ask [Person] for the recording. As with all our meetings, the recording will be considered confidential and not for release to anyone who was not in attendance."

...and the combinations could go on.

By being thoughtful about the nuances of privacy and the norms for meetings, a library/employer can both set the tone for a graceful meeting, and also position themselves to proactively address any employee concerns about the chosen norm for meetings overall. This is particularly important if an employer is insisting that cameras be on at all times; while there may be compelling reasons for this type of rule, if a library/employer is relying on employees who are working from home, there may also be compelling reasons to give employees the option of attending with their camera "off"; a well thought-out and routinely expressed set of norms will help with compliance, will make sure exceptions to "camera-on" rules are not perceived by others as unfair, and will create space for feedback in case employees want to request that the rule or norm be changed.

Thank you very much to the member for a compelling set of questions that are very much of the times. As with all "Recently Asked Questions" posted on "Ask the Lawyer, we invite feedback on this one (sent to info@losapllc.com or through the "Ask the Lawyer" submission page).  This is an evolving topic, and I am sure many library council members out there have thoughts on this!

 

---

[1] For more on image rights, see the “Ask the Lawyer” here: https://wnylrc.org/raq/posting-patron-images-facebook-when-image-release-required.

[2] There is no one name for this type of policy...some libraries call it "marketing," while others resist that label as too commercial-sounding.  If it didn't sound so cute, I'd say call it the "Who We Are and What We're Doing" policy, since that is really what it's for.

[3] I appreciate that not all employees are in situations where they feel empowered to raise this type of concern--gently, or at all. 

[4] In 2022, who can't claim this breadth of experience?  That said, because of my work, I have met with now hundreds of clients via telecon, so have seen a wide array of how business conduct online meetings.

[5] This is important for in-person meetings, too...but the norms may be a bit different.

There are many reasons a not-for-profit organization, such as a library, may contemplate employee membership--or structured involvement--on the governing board.

Common reasons are:

• To ensure timely employee involvement in governance matters;
• To promote transparency and workforce trust in board decisions;
• To balance or enhance other dynamics that govern the organization.

In this case, the member library's community is calling for a worker-trustee, which means the motivation could be a combination of all three...or that the community just likes the idea.

So, with such laudable objectives, what could be the problem?

The member has flagged the concern.

While the motivations for employee trusteeship can be worthy, anyone who has read a not-for-profit "Conflict of Interest" policy understands the problem: trustees, by law[1], are barred from voting on matters in which they have a financial or other personal interest.  This means that an employee also serving as a trustee would have to recuse themselves from every vote involving budget (since it would cover their payroll), personnel policies (since it would impact their terms of service), and decisions about certain personnel (since it could involve their boss).

This would create such a patchwork of recusals and non-involvement that it would deny the board the benefit of a fully participating member.

To avoid this issue, many boards who want the benefits of employee participation, without the inherent conflicts, use what I'll call "structured involvement."

Examples of "structured involvement" include:

• An employee serving as an ex-officio non-voting member of the board;
• An employee serving on a "Workforce Relations" or other personnel-related board committee;
• A "liaison" role with well-defined access to and expectations for attending board meetings and reporting back to employees.

For this type of "structured involvement" to work, a few things are critical.

First, the purpose of the involvement must be well-defined and crystal-clear.

If the purpose of the employee sitting at the trustee table is to channel ideas about programming and innovations, the employee should be on the committee(s) dealing with programming and innovations.

If the purpose of the employee sitting at the trustee table is to report out board developments to co-workers, the employee should not attend the board meetings, but have designated time and an agreed-upon format for reporting their observations out to the workforce (and the board should have an established mechanism for being assured that the message is getting out as intended).

If the purpose of the employee sitting at the trustee table is to give timely employee input on matters of strategic importance (budget, operations, hours, new services), then the role must be set up in such a way that they feel safe and protected providing that input.

And whenever the employee is required to do any of this work (rather than attending an open meeting[2] as a volunteer), they should be compensated for it.

Yes, I said it.  The elephant in the room on this type of service is whether or not it should be paid.  From the legal perspective, the moment the work has an expectation of a specific type of service (required attendance, writing reports, preparing materials for board review), it should be part of that employee's job. 

On the flip side, if the board simply creates space on every agenda for a 15 minute, voluntary "Employee input" session, and there is no requirement to attend or provide service, it should be on unpaid time.

For libraries with a union, incorporating routine employee involvement in board work and meetings should be supported in the bylaws, and further implemented through the collective bargaining agreement (this is usually where compensation for such work is confirmed).

For libraries without a union, this can be accomplished through bylaws, and a resolution that further clarifies the purpose and structure of the role.

No matter what, before an employee takes on a routine, established role in relationship to a board, that board, the library director, and the employee must have 100% clarity on the way things will work, or there can be trouble ahead.[3]

To achieve this "100% clarity", boards and the workforce should assess what they want...and what they don't want...from the relationship.  Some boards may want the benefit of an employee's specific experience there to call on as they make decisions for the organization.  Others might rely solely on the library director for that but may want to ensure another trusted employee is there to observe board decision-making and report it out to other employees.  Still others may want a non-voting "library professional committee" composed of workers, to balance a dearth of library experience on a board.

Whatever the identified need is, the structure selected (non-voting trustee, committee, committee member, liaison, routine guest) should support the board's articulated goal for the participation--and no more. 

For this reason, involving employees and board operations is an important undertaking, and one not to be taken lightly. It is appropriate to have several rounds of discussion amongst both board members and interested employees, to identify the mutual goals and achievable benefits of setting such a structure in place. Whenever possible, a lawyer should review the final resolution and documentation that will set the structure in motion, to make sure it is consistent with the library's charter, bylaws, union contract, and policy...and that it doesn't create needless risk of liability.[4]

Once the purpose and structure for employee involvement is well-documented and in motion, it can be an amazingly fruitful model.  Though it can be something of a pain to implement, the rewards can be many.  I encourage any library who thinks there could be a benefit to explore this avenue.

Thanks for a thoughtful question!

---

[1] New York State Not-for-Profit Corporation Law, Section 715 (NY Not for Profit Corp L § 715 (2015))

[2] Because no matter what type of chartered library, the employees are just as able to attend as the rest of the general public, under the Open Meetings Law.

[3] Big trouble.  As in: trustees not respecting the role, employees thinking they have authority and access they don't, employees voting when they shouldn't, trustees demanding service they aren't entitled to...all of which can lead to a legal mess (and be very tense).

[4] For example, a structure that has an employee seeming to participate in decision-making, if the right legal protections (indemnification and insurance) aren't in place for the employee.

 

This is the right question at the right time.  As we wrap up 2022, remote work, work travel, work-from-home, work abroad...all these are evolving in a tangle of legal considerations.

Whenever an employer adopts policies or practices that can impact the physical situation of an employee, questions about liability must be addressed.  The same is true for an organization that offers grants.

Liability is only one consideration among many, however.  When the terms for compensation or funding are being set, equally important are: support for institutional mission, individual well-being, and meaningful assessment of how funds are spent.

Fortunately, consideration of liability can be harmonized with these other priorities, by considering the purpose of the funding, and the way it is awarded.

Here are some examples of this balance, based on the member's scenarios:

Scenario 1 (regarding travel to Albany): "To promote member and professional participation in NYLA Legislative Day, member organizations can apply for travel grants up to [AMOUNT].  Member organizations who apply must submit a copy of their lobbying policy to demonstrate they are set up to properly receive, administer, and report lobbying-related funds."

Scenario 2 (regarding professional development): "To promote professional capacity-building at member organizations, member organizations can apply for professional development grants of up to [AMOUNT].  Recipient members will be required to send a short report describing the use of funds so professional capacity-building can be assessed."

How does this limit liability?  In both of the above examples, the grant recipient is the member organization, not the acting/receiving individual.  This would be emphasized further in the grant application and award conditions[1], which would require the funds be spent in a certain way (emphasizing mission and assessment), but would rely on the member-recipient to administer the funds to their employee, as a term of employment.

This separation reduces the chance for liability to be directed at the grant funder, while the chance for liability between the employee and the employer remains the same (unless the grant is conditioning funding on something inherently dangerous, like sky-diving into Albany, or professional development as an underwater welder).

On the flip side of this arrangement is the fact that any time an employee is travelling or engaging in any activity for business--whether the trip is specially funded by a grant, or to promote the employee's individual professional development--the trip or activity may result in an injury that could result in worker's compensation claim.

This is true whether the employee is at the employer's office, a home office, an off-site work location, or travelling for business, and is true whether or not the activity is grant-funded, or funded out of general operating expenses.[2]

Such injury, when incurred by an employee, should be reported promptly to the employer, so the employer can file the appropriate claim for workers' compensation insurance.  If the incident involved injury to another, or injury to property or assets, the matter might involve other types of insurance.[3]

Of course, there are some professional development opportunities and grants that may go straight from a grant-giving organization to an individual, rather than to that individual's employer.  When that is the case, the application materials and recipient award notice (which should double as a "terms of acceptance" document) must make it clear that the funded tasks are not being performed by the recipient as an employee, agent, or contractor of the donor.  That is another task for a lawyer.

 

Thank you for a nuanced question!

---

[1] This is why grant application and award notices should be reviewed by a lawyer when newly issued or revised.

[2] Please bear in mind, this is the default condition, and many things could happen to change it (including the contract between the grantee and grantor).  The bottom line: if an employee is injured, prompt reporting is essential to ensure they receive the protection and coverage they may be entitled to.

[3] Examples include but aren't limited to: general liability insurance, commercial liability insurance, professional liability insurance, automobile insurance, marine insurance (if the incident happened on a boat).

 

Because the training and resources described in the question can save lives, I will both a) quickly answer the questions and b) provide an answer in a format suitable to share with a library board.

Quick answers:

1. If staff are trained, do they incur a duty to act?

No, they will not incur a duty to act, unless the library adds that expectation to a job description, or adopts a policy requiring such action (which it should not do without careful planning).

1.5 Would they personally or the library as institution become liable should they freeze up and not intervene?

No, they will not incur liability for failure to provide first aid or emergency treatment, unless the library adds that expectation to a job description or adopts a policy requiring such action (which it should not do without careful planning).

2. If staff are trained but inadvertently cause harm in the process of administering aid, are they covered by any kind of Good Samaritan law?

Yes, except in cases of "gross negligence" (more on that below) they are shielded from liability by New York State's "Good Samaritan" law (Section 3000-a of the Public Health Law).

3. Can a library have a policy of requiring all staff to undergo these types of trainings?

Mandatory training, which could imply that providing first aid or emergency treatment is a job requirement (and thus outside the scope of the Good Samaritan protection), should not be required unless there is a careful program that considers the factors set forth in the guidance below.

Voluntary training, however—even on staff time—does not remove the Good Samaritan protection. 

4. Are there any other legal implications or obligations that should be considered that the average person may not think of?

Yes (see below).  But none that should get in the way of a library helping library employees and volunteers feel better prepared to provide first aid and emergency treatment!

Analysis

NOTE: This "Analysis" is composed in a format that could be presented to a board with concerns regarding this type of training or capability in their library.

First Aid at Your Public Library

A Guide for Public Library Boards in New York

Stephanie A. Adams, Esq.

The Law Office of Stephanie Adams, PLLC

Library trustees know that as free and open places of public accommodation, public libraries can often be the location of a medical emergency.

Because of this, many public libraries opt to prepare by:

• Having first aid kits on site
• Having Narcan on site (with or without staff training)
• Installing an AED[1] on site (to be used by EMS upon arrival after calling 911)
• Using posters in multiple languages to alert people to important considerations during a medical emergency
• Arranging training in first aid, CPR, and "Stop the Bleed" for staff and volunteers
• Implementing private security with some level of emergency response training
• Implementing policies for addressing medical emergencies in the library

Of course, a good board of trustees not only considers how to address potential medical emergencies in the library but also considers how the resources and tactics selected could put library employees, volunteers, the public, and the library itself at legal risk. 

This guide addresses the fundamental considerations of such an analysis and provides three immediate assurances so long-range planning doesn't slow down steps that may be immediately implementable.

Immediate Assurance #1: New York Law's "Good Samaritan Law" protects those who voluntarily provide first aid and emergency treatment.

In New York, Public Health Law 3000-a provides that any person who "voluntarily and without expectation of monetary compensation renders first aid or emergency treatment at the scene of an accident or other emergency outside a hospital, doctor’s office or any other place having proper and necessary medical equipment, to a person who is unconscious, ill, or injured, shall not be liable for damages for injuries alleged to have been sustained by such person or for damages for the death of such person alleged to have occurred by reason of an act or omission in the rendering of such emergency treatment unless it is established that such injuries were or such death was caused by gross negligence[2] on the part of such person."

Immediate Assurance #2: New York Law Protects Libraries that enable access to and use of Narcan (naloxone).

2.  In New York, Public Health Law Section 3309 provides that the "use of an opioid antagonist [such as Narcan] ... shall be considered first aid or emergency treatment for the purpose of any statute relating to liability...[and] an...entity, or any person employed by the person or entity, acting reasonably and in good faith in compliance with this section, shall not be subject to criminal, civil or administrative liability solely by reason of such action."

In 2016, this section of the Public Health Law was revised to specifically include a public library in the definition of a protected "entity."  So, without a doubt, a library providing access to Narcan, or whose employees administer Narcan, are protected by the law (so long as they avoid "gross negligence" as required by the law).

Immediate Assurance #3: Neither staff training nor on-site equipment creates an obligation to provide first aid or emergency treatment.

This is true even if the location is required by law to have an AED and a person trained to use it.[3]

So long as the first aid or emergency treatment is provided "voluntarily and without expectation of monetary compensation" (and without gross negligence) the person is protected by Public Health Law 3000-a.

First Legal Consideration: Voluntary Training, Voluntary Action

While the protection of the Good Samaritan law is clear, it is also clear that the help being provided must be "voluntary."

Because of that, unless a library has a) a carefully planned first aid/medical event program with b) well-developed policy, and c) language in job descriptions, all d) coordinated with the right insurance coverage, and the e) written plan for implementing that program has been f) reviewed by a lawyer issuing a g) written opinion as to how liability is mitigated, the training provided to staff should be documented as voluntary, with no express or implied requirement that an employee attend.

Second Legal Consideration:  Alternate or Added Medical Event Planning

In a medical emergency, quick response time is key.  So, in addition to or in lieu of training staff, some libraries may benefit from better contracts, Memoranda of Understanding, or other connections with local first responders. 

If your library has first responders stationed or residing nearby, it may be better to train staff on recognizing different signs of medical distress and to practice calling 911.  Then work with the local first responders on what type of training could be useful when even a quick response time might not be quick enough.

Third Legal Consideration:  Insurance

Every board should review, on an annual basis, its library's coverage for personal injury, and be aware of the different protections the library has for on-site injury, which should include:

• Workers’ Compensation Insurance
• General Premises Liability
• Coverage as an "additional insured" (if there is a contractor or other professional physically working on site)

As part of this assessment, the board should be confident that the library has a clear process for 1) documenting on-site injury; 2) promptly alerting relevant insurance carriers about on-site injury; and 3) following up with carriers to ensure the library is making maximum use of the coverage it pays for.

Fourth Legal Consideration:  Commitment to Continuous Improvement

In addition to assessing what equipment and training the library may need for first aid and emergency treatment, a board may also want to consider the results of a medical incident.  While this goes beyond just considering the "legal" aspects, whenever there is a serious medical event in the library, the board should ensure the library has the resources to:

• Consider if the situation warrants improvements to on-site safety[4];
• Consider if there is a need to address employee well-being and morale; and
• Consider if the incident can have an impact on reputation.

With these assurances and considerations in mind, library leadership can effectuate immediate steps to address medical events in the library and initiate an overall plan for mitigating and managing associated risks.  This is good for your community, good for your mission, and good for your workers... and consistent with the fiduciary duties of a library board.