Management

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:

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.

Vacation time is weird.

Why is it weird?

Well, first, it's fictional: it's time you get "paid" for, even though you are not at work.[1]

Second, unlike earned wages, vacation time can be magically obliterated, with employers deciding through policy that only a certain amount can be "carried over" or accrued.

And third, we don't use it enough.

So, with all the weirdness laid out on the table, let's answer the question:

Yes, an employer can use a clear and well-communicated policy to limit payout of accrued vacation time at termination. 

This is because in New York, accrued vacation is not considered wages[2], but is considered to be a "benefit or wage supplement" (and why failure to pay it can be "wage theft").[3]

This is very nice of New York, but the protection does come with limits, the biggest one being that an employer can limit the obligation to pay out the accrued time through policy.  So long as the policy is clear, there is no obligation to pay out accrued vacation.

Or, as they New York State Department of Labor puts it[4]:

Whether an employer must pay for unused time depends upon the terms of the vacation and/or resignation policy. New York courts have held that an agreement to give benefits or wage supplements, like vacation, can specify that employees lose accrued benefits under certain conditions. [See Glenville Gage Company, Inc. v. Industrial Board of Appeals of the State of New York, Department of Labor, 70 AD2d 283 (3d Dept 1979) affd, 52 NY2d 777 (1980).] To be valid, the employer must have told employees, in writing, of the conditions that nullify the benefit.

IF...

• An employee has earned vacation time

AND...

• There is no written forfeit policy

THEN...

• The employer must pay the employee for the accrued vacation

A typical example of this limit is cited in the member's question: limiting "carry-over" from year-to-year, which effectively means wiping out time earned before it is used, generally to limit employee absence from too much accrual. 

Case law and New York State Department of Labor Guidance specifically allow this limit, with the burden placed on the employer to have policy that is clear and well-communicated.[5]

As recently stated in a 2018 case[6] about unpaid vacation:

The determination as to whether a former employee is entitled to be paid for vacation time is generally governed by the contract between the parties (see e.g. Gennes v Yellow Book of NY, Inc., 23 AD3d 520, 522, 806 N.Y.S.2d 646 [2005]; Matter of Glenville Gage Co. v Industrial Bd. of Appeals of State of NY, Dept. of Labor, 70 AD2d 283, 421 N.Y.S.2d 408 [1979]; Colton v Sperry Assoc. Fed. Credit Union, 50 Misc 3d 129[A], 28 N.Y.S.3d 647, 2015 NY Slip Op 51894[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; Steinmetz v Attentive Care, Inc., 39 Misc 3d 148[A], 972 N.Y.S.2d 147, 2013 NY Slip Op 50905[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013]). "The employee bears the burden of proving an entitlement to payment for vacation time" (Linwood v United Activities Unlimited, Inc., 43 Misc 3d 131[A], 988 N.Y.S.2d 523, 2014 NY Slip Op 50612[U], *2 [App Term, 2d, Dept, 2d, 11th & 13th Jud Dists 2014]; see Grisetti v Super Value, 189 Misc 2d 800, 801, 736 N.Y.S.2d 835 [App Term, 2d Dept, 9th & 10th Jud Dists 2001]).

So, the key to what this library wants to achieve is a clear policy with a well-established "forfeit" provision; in this case, saying all but 2 weeks' worth of accrued vacation are forfeited upon termination.

When considering implementing such a payout limit, an employer is wise to (A) pay close attention to the practical effect it will have and give time for employees to use their surplus accrued time or (B) offer an on-time payout for over a certain amount of accrual, so people do not feel accrued time has been taken away from them. This requires attention to how much time an employee is allowed to take during the year and other factors that will be uniquely set by the employer’s policy.

And with that, I wish you good vacations.

Here we are in January, 2022, and frustratingly, there is no ONE right answer to this question.[1]  Between OSHA, CDC, WHO, and NYSDOH, together with state-wide and local Executive Orders and states of emergency, the answer to this question is a big, tangled web.

That said, there are THREE things I can say for certain, and they do answer this question:

1.  Regardless of what Emergency Order, law, or regulation is in effect, libraries and museums that are operating in any way should be doing so per a written and routinely updated Safety Plan.[2]

2.  Regardless of what Emergency Order, law, or regulation is in effect, libraries and museums operating under a Safety Plan that involves use of PPE and sanitization supplies should provide that equipment.[3]  Libraries relying on social distancing should continue to demarcate areas where it must be maintained.

3.  Regardless of what Emergency Order, law, or regulation is in effect, libraries and museums operating under a written Safety Plan that involves employer-required testing must provide those tests.[4]

Again: while different laws, regulations, and orders create these three obligations, I can say that they remain.

After that, I can only say: when updating Safety Plans (which should either be done, or ruled out, monthly, and ad hoc as guidance changes), libraries should confirm their obligations with either their lawyer or their local health department.

For libraries looking for a model, a good place to start is the HERO Act template found at  https://dol.ny.gov/system/files/documents/2021/09/p765-ny-hero-act-model-airborne-infectious-disease-exposure-prevention-plan-09-21_0.pdf. [NOTE: This link was confirmed as no longer active and removed on 02/25/2022  as part of the routine review of "Ask the Lawyer" materials.]  For municipal libraries that operate largely in conjunction with their municipal government (sharing HR policies, hazard response plans, etc.), it might be appropriate to look to their municipality's mandated[5] "Public Health Emergency Operations Plan."

I realize this doesn't eliminate the need to swim in the alphabet soup of authorities offering different, and sometimes divergent, guidance.  But by relying on your local health department to confirm obligations, hopefully a library can focus more energy on its mission to serve its community...while also demonstrably living up to its duty to safeguard its workforce.

[1] I can supply lots of answers, just not a one-size-fits all one.  Whether it's OSHA,  the NY HERO ACT, or currently  suspended federal mandates, 

[2] While different laws and regulations will govern the written plan, this is true for both private and quasi-governmental entities.

[3] While different laws and regulations will govern this obligation, this is true for both private and quasi-governmental entities.

[4] Examples of "employer-required testing" are:  random tests of the workforce, required routine tests for those not vaccinated, and any  other required testing built into an  Employer's Safety Plan.  Tests required by CDC, NYDOH, and local health department statements, such as the current recommendation by  the CDC for fully vaccinated, asymptomatic people to test 5-7 days after a known exposure, are not "employer-required."

[5] By New York Public Health Law Section 27-c.

This question is an example of why clear, precise writing is so important.

To make sure no reader is in suspense, first I'll answer the member's question: I intended the guidance to convey the member's interpretation (with the information about accession, cataloging and appeal policy being supplied only after a parent expresses concern).

Re-reading my answer, I can see how the member’s president interpreted this guidance not as a reaction, but as a preemptive strategy to head off parental concerns.[1]  But that is NOT the guidance I intended, and I have since added a footnote[2] to the original posting to clarify that.[3]

While I have your attention on this, I will add: except for factors required by law (like requiring working papers, limiting certain activities in certain industries, and abiding by child labor laws), I don't advise treating minor employees differently than any other employee. If a library wouldn't contact the parents of a 40-year-old worker to alert them to the fact that, from time to time, a library worker may be exposed to content or communications they find objectionable, it shouldn't be done for a 17-year-old either. Except for when it is required by law, employees should not be differentiated by age, just as they should not be differentiated by gender, race, or religion.

Thank you very much to the member for giving me this chance to post a clarification, and this caveat.

[1] That is what I get for using a buzzword like "pro-active."  Although...is it a "buzzword" anymore? What happens when a buzzword gets tired?  Is it a "dunzzword"? 

[2] Here is the footnote: "We received a request for clarification about when to use this tactic.  As posted in the clarification here [https://www.wnylrc.org/ask-the-lawyer/raqs/241] I intended this guidance to convey that the information about accession, cataloguing and appeal policies be supplied only after a parent expresses concern."

[3] I could of course just have made an edit, but we don't hold with that 1984-style memory adjustment here.

[NOTE: for background to this short answer, please see the much longer "Ask the Lawyer" Background checks and fingerprinting for new employees, that addresses the tightrope walk/legal minefields of employee background checks.]

So, does a school district public library[1] implementing a background check for new employees have to also check their current ones?

The answer is: no; barring an over-ruling requirement (such as a term in a union contract) a library board can implement a background check policy for all hires going forward, without imposing a "retroactive check" requirement for current employees. 

However, I would never advise that approach.  Here are three reasons why:

1.  Possible discrimination

A policy to only check the backgrounds of "new" employees could have a disproportionate impact on candidates on the basis of age, or gender, or race (to name a few).  By not checking everyone, an employer risks the appearance of (or actual occurrence of) illegal discrimination.

2.  Possible liability

Employee background check policies are implemented to reduce risk.  If an employer is using employee background checks to reduce risk, there should be a very good reason for not checking all employees (such as a union contract that bars it[2]), or the employer risks a claim of negligence.

3.  Worker relations

A work environment should be a place of high trust.  By subjecting one class of employees ("new" employees) to heightened scrutiny, in addition to the possible concern mentioned above in "1," it creates an unbalanced environment for trust.  This is bad for morale.

I appreciate that background checks can come with a cost, so minimizing their frequency is helpful.  I encourage any library implementing such a policy to check with their "Directors & Officers Insurance" carrier, since sometimes, carriers offer resources to defray and even pick up the costs of the check.

Thank you for a thoughtful question.

[1] Of course, if a school district public library is in a school (not a common scenario; school district public libraries are largely autonomous and separate from school district property), and if the librarians are on the payroll of the district, then they are already being background checked and fingerprinted, per the chart here: http://www.nysed.gov/educator-integrity/who-must-be-fingerprinted-charts.  Of course, this question pre-supposes that the board is setting the hiring policy, which means the library is autonomous.

[2] Just to be clear, a contractual obligation to not conduct criminal background checks should never be in a collective bargaining agreement!  However, some reasonable restrictions on the scope of such a check would be consistent with NY law and policy.

Ooh, an ontological question!

I am not sure about the basis of the past legal input mentioned in the question, differentiating a "policy" from a "handbook," but I (mostly) agree with it.

I (mostly) agree with it because, in both state and federal labor law, the term "policy" is generally used to refer to a stand-alone set of rules governing the terms of employment.[1]  Examples of policies required by law include:

• Sexual Harassment Policy[2]
• Prevention of Airborne Disease[3]
• Whistleblower Policy[4]

In both common usage and in the law, when such policies are gathered together, they become a "Handbook."[5]  Many times, at the advice of lawyers,[6] employers then annually distribute a copy of this "Handbook," and (as in the member's question), require employees to acknowledge it.

The tricky thing is that once an employer has taken the step to pull the policies and create a "handbook" (again, with the name not being important...the important part being that there is some collection of policies, distributed to employees), the law may put additional obligations on the employer regarding the content.

For instance, Labor Law Section 203-e (6), which bars discrimination on the basis of an employee or their family member using reproductive services, states: " An employer that provides an employee handbook to its employees must include in the handbook notice of employee rights and remedies under this section" [emphasis added].  In other words: if the company has no handbook, there is no mandatory inclusion of the notice...but if there IS a "handbook," the notice must be part of it.

The term "handbook," used to mean a collection of employee policies, is also part of the recently passed HERO Act.[7]  It takes the same approach as Labor Law 203-e: if a handbook is handed out to employees, the required Airborne Infectious Disease Plan must be distributed with it (or at least, in the same manner as it is distributed).

Now, for the member's precise scenario: What about when a document that really is just one "personnel policy," but has different sections/rules and a section for the employee to acknowledge receipt?

Based on how the various employment laws in New York use "policy" and "handbook," I feel very comfortable saying that any document that aggregates an employer's rules on more than one topic (say, "progressive discipline," "appropriate attire" and "vacation") and is distributed to employees is--no matter what you call it--a "handbook." 

Or as I have put in this illustrative limerick:

One rule to another said: "Look,

Here's something that has me quite shook

We rules stand alone

In a "policy zone"

But together, we are a handbook!"

Thank you for a chance to do this research and to write this dubious verse about it.

[1] Of course, "policy" is also used in other ways in the employment context.  A big example: it is often used in the NY Civil Service Law, which frequently refers to the development of "policy" (meaning governmental positions).  Second, it is used in the context of different types of insurance required of employers (a workers' compensation insurance policy, a paid family leave act policy, a disability insurance policy...etc.). 

Huh.  I have never thought about it before now, but we should really develop some more refined terms for different "policies."

[2] New York Labor Law 201-g

[3] New York Labor Law 218-b, aka the "HERO Act" (for more on that, see Footnote #7.)

[4] New York Not-for-Profit Corporation Law Section 715-b requires this of every not-for-profit that has "twenty or more employees and in the prior fiscal year had annual revenue in excess of one million dollars." 

[5] Or an "Employee Manual" or a "Company Manual" or whatever the employer wants to call it.

[6] The legal bases for why this acknowledgement is advised will vary based on the Handbook/Manual's contents and the employer's industry.

[7] For more on the HERO Act, see "Ask the Lawyer" RAQ here: NY Hero Act and libraries.

This submission stands at the complicated crossroads of First Amendment, employment law, library ethics, and equal protection.[1]

As such, I could write on this topic endlessly.  But "Ask the Lawyer" is not here to provide endless commentary, but rather, helpful guidance inspired by real-world questions. 

So here is some (hopefully) helpful guidance, centered on a real-world example (culled from my summer reading):

I recently read a powerful graphic novel called "I Know What I Am"[2] about the life and times of artist Artemisia Gentileschi.

Gentileschi was a powerhouse painter in the 17th century.  She was also a survivor of sexual assault, a businesswoman, and a mother who, as portrayed in the comic book, channeled her experiences into her painting.

"I Know What I Am" pulls no punches depicting Gentileschi's life.  The artwork--which re-creates many of Gentileschi's own works, including her different versions of "Judith Slaying Holifernes"[3]--is stark, bloody, and riveting.[4]  The portrayals of sex and sexual abuse do not leave much blood in the gutters.[5]

Of course, as a literary work, "I know What I Am" checks all the boxes for not triggering a charge of "obscenity" as defined in New York (including having literary merit).  But that said, select panels from the book could very easily be regarded as inappropriate for some audiences--and not just for "minors."  The content is very raw, and for those sensitive to certain topics, could exacerbate or evoke trauma.

None of that, of course, creates a legal violation caused by the content itself--even if it is in a library being shelved by a 14-year-old--but it does show why there is a need to consider questions such as those raised by the member. 

Which, using "I Know What I Am" as a focal point,[6] I will now do.

First question:  [Is] minors viewing pornography ... flat-out illegal?

Answer:  The word "pornography" does not appear in the New York State Penal (criminal) Law.  Rather, New York uses numerous defined legal terms (such as "harmful to minors,"[7] "obscenity,"[8] "indecent material"[9] and "offensive sexual material"[10]) to describe criminal acts that can lead to a charges based on providing access to certain content under certain circumstances (including to people of a certain age). 

However, because of the defenses very carefully built into these laws, none of these concepts can be accurately applied to a properly cataloged item being accessed by a minor who is doing their defined job per library policy.

That said, both internet porn and content with undisputed literary merit such as "I Know What I am" could be handled or displayed in a way considered harassing (a civil rights violation), damaging (a personal injury claim), or criminal if the access is gained or forced on/by a minor without adherence to collection and library policies, and job descriptions.

Here are some examples as to how that could happen:

• A library employee retrieves books with suggestive titles or sexual content and repeatedly leaves them in another page's locker as a prank, and even when it is reported, the library does nothing to prevent it from recurring (sexual harassment);
• A clerk knowingly and with intent to harm directs a page who is a recent sexual assault survivor to create a book display of "I Know What I Am" [11] (risking a charge of sexual harassment; possible personal injury); worker's comp claim);
• A community member donates a stack of old "adult" books for the annual book sale and the director knowingly assigns a 14-year-old to inventory them (risking a charge of material harmful to minors, which requires a "sale" element to be actionable);
• A patron repeatedly violates the library's policy about viewing sexual content on publicly viewable computers, and no one corrects the serial policy violation (risking a charge of display of sexual material, as well as sexual harassment).

Aside from the legal concerns caused by these types of extreme examples, of course, there is the very real and practical concern that parents of a minor employed by a library could take issue with some of the content their child has to work with...even if it is entirely legal.

In that regard, I can only say that inviting concerned parents to review the library's well-thought-out accession, cataloging, and appeal policies is a pro-active way to ensure parents know that the library takes both its role as an employer of their child, and as a champion of a community's intellectual freedom, seriously.[12]  Parents or guardians of minors working in New York will have already had to sign working papers; no waiver or disclaimer should be further required.[18]

Which brings us back to the point the member raised in the beginning of their question: the importance of having--and enforcing--policies that govern accession, appeal, cataloging, display, and sexual harassment/discrimination (careful adherence to job descriptions and good training on how to enforce policy in the moment are essential, too).[13]

In New York, both the criminal and civil law contain robust protections for libraries working with material some may find inappropriate, offensive, or challenging, but those protections do rest on proof of operating in harmony with the law.  By having clear policies and documenting adherence to them, a library can be ready to weather accusations of illegal conduct. 

Which brings us to the member's last questions:

Assuming a set of library policies structured as you have previously advised, what, if any, liability does a library have for minors inadvertently viewing adult pornography?

If the viewing was truly "inadvertent," and any policy violation that allowed it to occur is quickly corrected, nothing further is needed.[14]

And what, if any, modifications to hiring, training, and workplace procedures do you recommend for minor employees?

Speaking as a former "minor employee" of a public library,[15] a good employee orientation, and regular reinforcement, on the fundamentals of library ethics and the policies that protect employees is a very valuable thing. 

This is already something most libraries are doing, but here are some helpful points to reinforce:

• Prior to hire, a minor employee should review the job description with their supervisor, and have a chance to ask questions;
• All employees must be trained to respect patron confidentiality and be trained on how to deftly demur requests by third parties for patron information;[16]
• All employees are entitled to respectful treatment from patrons and co-workers, and should know to whom they can direct questions and concerns about their employee experience;
• The library has a suite of policies for selecting, challenging, cataloging, and weeding books, and minor employees who might not have direct responsibility under those policies should know they exist, and how to direct questions about them;
• Minor employees, in particular, should be trained on how to immediately report observed or reported policy violations (including those related to pornography and harassment);
• Library employees who are not legal adults (18) should feel free to ask questions, should know to whom those questions and concerns can be directed, and should get meaningful and timely answers so they feel respected.

All of this should be reflected in a hire letter or orientation packet, so parents, if they choose to ask their child to view the terms of their work,[17] can do so.

Not too much to remember in your day-to-day life keeping the library up and running, right???

Thank you for an excellent question.

[1] And even a bit on the law defining what a "minor" is--a status that can shift based on which law is being applied, where.

[2]https://bepl.ent.sirsi.net/client/en_US/default/search/detailnonmodal/ent:$002f$002fSD_ILS$002f0$002fSD_ILS:2101819/one?qu=9781683962113

[3] Here is one version: https://www.theguardian.com/artanddesign/2020/oct/09/artemisia-gentileschis-judith-slaying-holofernes.

[4] Being a businesswoman myself, I found the "business" parts just as compelling as the violent parts, although much of the drama in that part is subtext.

[5] "Blood in the gutter" is a phrase from comics book publishing, meaning the violence happens between panels.

[6] I could also have picked something a bit more salacious to use as an example (something that only barely makes the "literary value...for minors" test) but why waste the opportunity to tout a great book?

[7] NY Penal Law 235.20

[8] NY Penal Law 235

[9] NY Penal Law 235.21

[10] NY Penal 245.11

[11] I know, this is a very far-fetched example.  At least, I hope it is, since it illustrates truly sociopathic behavior.

[12] If a library wants to go even further and have minors only work in the Children's Room, where they will by policy only work with materials cataloged for youth, that could be an extra precaution, although it is not personally one I endorse.  Library work, like legal work, is for people who can approach all of life's variety with maturity and aplomb.

[13] As referenced by the member, past discussion of how policy plays into managing concerns about pornography is here: https://www.wnylrc.org/ask-the-lawyer/raqs/60.

[14] From the legal perspective.  I can't say if counseling, getting ready for picketing, or bracing employees for an angry phone call from parents is in the future. 

[15] New Hartford Town Library, when I was 16 and 17.

[16] I know this isn't quite on point, but the balance between respecting patron confidentiality, and enforcing respect for employees, can be tricky if people don't grasp the fundamentals.  Just because you have to keep mum on what a patron is checking out doesn't mean you keep mum about inappropriate comments!

[17] The topic of a guardian or parent viewing or interceding with the employment relationship of their child is too big for this reply.

[18] Update 11/05/2021: We received a request for clarification about when to use this tactic.  As posted in the clarification here [Follow-up to Minor Employees and Obscenity in Libraries] I intended this guidance to convey that the information about accession, cataloguing and appeal policies be supplied only after a parent expresses concern.

This...is a big question.  It's only three short paragraphs.  But it's BIG.

It's "BIG" because the risks of getting this topic wrong are immense--from not only the obvious risks involving legal concerns, but risks involving ethics, privacy, and the goal at the heart of the issue: safety.

It's also BIG because the phrase "background check" is not tied to a precise or static definition.  When someone says "background check" in the context of employment, here are just a few of the things it could mean:

• Criminal background check
• Credit check
• Military service separation check (form "DD 214")
• Motor Vehicle Records ("MVR") check
• Transcript and education records check (including student disciplinary records)
• Licensing/professional oversight body (medical board, bar association, etc.) check/confirmation of good standing
• Civil litigation history review
• Reference check
• Previous employment verification
• Social media/publications check

Each of these "checks" comes with a wide array of legal requirements--or typical legal cautions--governing its use.

For instance:

• A criminal background check should only be used by an organization if it has an up-to-date "Criminal Background Check Policy," because in the state of New York, denying employment based on a criminal conviction requires the employer to do a precise analysis (of which the denied applicant can request a copy).[1]
• A credit check should only be used by an organization if it has an up-to-date "Credit Check Policy" to ensure the regulations in the Fair Credit Reporting Act ("FCRA") are being followed.[2]
• A MVR should only be used by an organization if it has an up-to-date "MVR Check Policy" that clearly sets out the types of moving violations and other records that would flag a basis for non-employment.[3]

For all types of checks, the institution using them should have a clear policy governing what jobs require them, and how such records are evaluated, maintained, and disposed of.

And finally: when developing, implementing, and routinely using any type of background check policy, an organization is wise to take care that it is not incorporating factors that can be shown to disproportionately negatively impact (i.e., discriminate against) a particular category of applicant.   

Okay, with all that off my chest, let's answer the actual questions.

First question:

Do background checks, fingerprinting, etc., need to be done for all positions?

The degree to which background checks and documentation of identity must be performed are governed by two things: what is legally required, and what the risk management practices of an institution dictate. 

These two factors mean that practices will vary from place-to-place.  A librarian working within a public school district in the state of New York will be subject to a criminal background check and must be fingerprinted[4] just as any other regular employee within their district. A librarian at a public or association library is not required by law to have a criminal background check, nor to be fingerprinted,[5] but an institution could decide, for risk management purposes, that a position requires that level of scrutiny for safety and security.  

Second question:

Does it need to be posted in the job advertisement that there will be a background check for the successful candidate or all finalist applicants?

There is no requirement in the law that a job advertisement has to disclose a background check in the job advertisement.  However, prior to obtaining and using any information from a third party whose business it is to provide background information, an employer must notify an applicant; this notice must be in writing and in a stand-alone format.  Further, before a negative decision is made based on such information, it must be disclosed to the applicant.  A good resource on this is the Federal Trade Commission,[6] but the third party provider, if they are a true professional, will provide the forms for each of these steps.

Now all that being said, it may be that some local hiring procedures or collective bargaining agreements require the disclosure of background checks in a job notice.  Further, some employers may want to disclose their intent to use a background check to avoid surprising candidates further into the process.  There is no bar to making such an early disclosure, but if given, such notices should be carefully drafted to avoid implying that those with arrests or criminal convictions[7] will not be considered for the position.

Third question:

Can the background check need to include a financial check and a legal check?

Yes, absolutely. A background check can include a credit check, a search for liens and other debt instruments, a review of criminal history, a consideration of driving record, and any combination of the items I listed at the top of this reply.  Just be careful: if your library or system relies on a third party to supply that information, it must follow the guidance from the Federal Trade Commission (see that link in footnote 6).

Okay, at this point, I have to re-emphasize: before using any type of check, a library should have a policy covering that type of check, and that policy should cover all check-specific legal compliance, as well as: when the check is conducted, how it is conducted, how the information is used, and how the documents related to it are disposed of/retained. [8]

When developing such a policy, a good rule of thumb for an institution considering any type of background check is to be able to clearly answer the question: "Why are we doing this check?"  While the reasons will vary, the answer should always relate to the essential functions listed in the job description, and the nature of your library.

For instance: if a position will create opportunities for a person to spend unsupervised time with vulnerable populations, a criminal background check and rigorous prior employer check is wise.  If a position requires a particular credential, verification of that credential makes sense.  And if you are hiring someone who will frequently have to drive the bookmobile, a motor vehicle records check is almost always imperative.

On the flip side: if a person is being hired for a job that doesn't require driving, a "current driver's license" should not be required. If a person will never have access to financial information or fiscal resources, a credit check is likely not necessary. And if a would-be library clerk has a DWI that is 20 years old--and no other criminal history--it is likely the conviction is not a basis to eliminate them from consideration.

Last question (and it's another biggie):

And tangentially, am I correct in my assumption library staff are not considered mandated reporters? Are there guidelines for this as well?

"Mandated reporters" is a legal term under Section 413 of the NY Social Services Law.  Professionals listed in that section are required to make a report when they:

 "...have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child, [OR] when they have reasonable cause to suspect that a child is an abused or maltreated child where the parent, guardian, custodian or other person legally responsible for such child comes before them in their professional or official capacity and states from personal knowledge facts, conditions or circumstances which, if correct, would render the child an abused or maltreated child."[9]

I have placed a list of the "Mandated Reporters" set by Section 413 below this answer. As you can see by reviewing the (long) list, library employees (unless their function also fits into one of the categories listed in 413) are NOT Mandated Reporters.

Of course, a library--or an institution that hosts a library--can decide and enforce via policy that its employees have an affirmative duty to report observed or suspected child abuse (or any abuse) that occurs on their property or in their programs.  Many insurance carriers actually require their insureds to have such a policy.[10]

[NOTE: If an employer has any type of "report abuse" policy, employees should be trained on how to make such reports no less than annually.  The average person can have a trauma response to witnessing abuse, which can impact their ability to report it, as well as negatively affect their well-being.  Routine training on how to recognize and report concerns, and experienced support for reporters, can help with this.]

Thank you for an important series of questions.

List of "Mandated Reporters" under Section 413 of the Social Services Law (also called "human services professionals[11]"):

...any physician; registered physician assistant; surgeon; medical examiner; coroner; dentist; dental hygienist; osteopath; optometrist; chiropractor; podiatrist; resident; intern; psychologist; registered nurse; social worker; emergency medical technician; licensed creative arts therapist; licensed marriage and family therapist; licensed mental health counselor; licensed psychoanalyst; licensed behavior analyst; certified behavior analyst assistant; hospital personnel engaged in the admission, examination, care or treatment of persons; a Christian Science practitioner; school official, which includes but is not limited to school teacher, school guidance counselor, school psychologist, school social worker, school nurse, school administrator or other school personnel required to hold a teaching or administrative license or certificate; full or part-time compensated school employee required to hold a temporary coaching license or professional coaching certificate; social services worker; employee of a publicly-funded emergency shelter for families with children; director of a children’s overnight camp, summer day camp or traveling summer day camp, as such camps are defined in section thirteen hundred ninety-two of the public health law; day care center worker; school-age child care worker; provider of family or group family day care; employee or volunteer in a residential care facility for children that is licensed, certified or operated by the office of children and family services; or any other child care or foster care worker; mental health professional; substance abuse counselor; alcoholism counselor; all persons credentialed by the office of alcoholism and substance abuse services; employees, who are expected to have regular and substantial contact with children, of a health home or health home care management agency contracting with a health home as designated by the department of health and authorized under section three hundred sixty-five-l of this chapter or such employees who provide home and community based services under a demonstration program pursuant to section eleven hundred fifteen of the federal social security act who are expected to have regular and substantial contact with children; peace officer; police officer; district attorney or assistant district attorney; investigator employed in the office of a district attorney; or other law enforcement official.

[1] This is why the phrase "Must have no criminal history" or the like must not be included on a job notice.  For more information on this, visit https://dhr.ny.gov/protections-people-arrest-and-conviction-records.

[2] More info on this further into the answer.

[3] For some employers, this criteria is set by the provider of the organizations’ automobile and/or general liability insurance; this is especially true for organizations that use "company" vehicles.

[4] As listed here: http://www.nysed.gov/educator-integrity/who-must-be-fingerprinted-charts.

[5] Unless there is a very obscure local law I have been unable to find.  If you are aware of one, please email me at adams@losapllc.com.

[6] More information on how/when to give this notice is here: https://www.ftc.gov/tips-advice/business-center/guidance/background-checks-what-employers-need-know.

[7] Or other categories protected by law.

[8] That's right: I put that in italics, bold, and underlined it!  An "Ask the Lawyer" first.  No organization should ever "wing" a background check--of any kind.  There is too much at stake.

[9] I know, there is a lot of room for interpretation in this language; when in doubt, seek guidance.

[10] I think of this as the "Penn State Victims Requirement."

[11] 18 NYCRR § 433.2

Here's something positive and affirming I can say: it's possible that the members expressing different opinions on the member directors' list are actually all correct.

That’s because, while I can't give one "clear yes or no answer" to this question, I can give five...five answers based on different scenarios about the facts "before an employee comes to work," including their symptoms, COVID exposure, and the safety measures needed to reduce the risk of COVID transmission in their workplace.

Here the five scenarios are:

Scenario 1

Yes, an employer must (and therefore, can) require a COVID test before an employee returns to work,[1] if the employee reports symptoms as part of routine screening.[2]

Scenario 2

Yes, an employer must (and therefore, can) require a COVID test before an employee returns to work, if an employee is symptomatic upon arrival at work or becomes sick with COVID-19 symptoms while at the workplace, absent close or proximate contact with a person with COVID-19.[3]

Scenario 3

No, an employer does not have to, and has no basis to, require a negative COVID test before an employee comes to work, if the employee is working 100% remotely at home or in a location not at all controlled or at the direction of the employer.[4]

Scenario 4

No, an employer may not require a negative COVID test before an employee comes to work, IF the employee has a medical basis to not be tested; without a negative test, however, if certain screening factors were tripped (such as those in item 2, above) the employer will have to enforce other prescribed measures to comply with state requirements and reduce the risk of transmission within the workplace, such as a mandatory quarantine.[5]

Scenario 5

Yes, an employer can require a negative COVID test before an employee comes to work, if an established safety plan based on applicable OHSA guidance and the employee's job duties warrant that level of caution.[6]

Conclusion

I am not surprised you were unable to find a clear answer from a single reliable source, as these five scenario-based answers had to be cobbled together from two separate documents from the New York State Department of Health, which when combined, require employers to:

"Implement mandatory health screening assessment (e.g. questionnaire, temperature check) before employees begin work each day and for essential visitors, asking about (1) COVID-19 symptoms in past 14 days, (2) positive COVID-19 test in past 14 days, and/or (3) close contact[7] with confirmed or suspected COVID-19 case in past 14 days. Assessment responses must be reviewed every day and such review must be documented."

AND

"An individual who screens positive for COVID-19 symptoms must not be allowed to enter the office and must be sent home with instructions to contact their healthcare provider for assessment and testing." [emphasis added]

AND

"If an employee tests positive for COVID-19, regardless of whether the employee is symptomatic or asymptomatic, the employee may return to work upon completing at least 10 days of isolation from the onset of symptoms or 10 days of isolation after the first positive test if they remain asymptomatic."

AND

"If an employee has had close or proximate contact with a person with COVID-19 for a prolonged period of time AND is experiencing COVID-19 related symptoms, the employee may return to work upon completing at least 10 days of isolation from the onset of symptoms."

AND

"If an employee has had close or proximate contact with a person with COVID-19 for a prolonged period of time AND is not experiencing COVID-19 related symptoms, the employee may return to work upon completing 14 days of self-quarantine."

AND

"If an employee is symptomatic upon arrival at work or becomes sick with COVID-19 symptoms while at the workplace, absent close or proximate contact with a person with COVID-19, the employee must be separated and sent home immediately and may return to work upon completing at least 10 days of isolation from the onset of symptoms OR upon receipt of a negative COVID-19 test result." [emphasis added]."

And there you have it. I am not sure if this will make things clearer, but hopefully I have added some clarity to the uncertainty. 

[1] In this case "work" means the "work site," as in an established office or location controlled by the employer where an employee will report to work, or a site they are directed to appear at.  For this question, "work site" does not mean a home office or other space the employer does not control/send the employee to.

[2] This answer is based on the combined effect of the New York State Department of Health requirements here and  here.

[3] This answer is based on based on the combined effect of the New York State Department of Health requirements here and here.

[4] I know I covered this in footnote #1, but it bears repeating: based on the published guidance, NY employers are required to conduct mandatory screenings to reduce the transmission of COVID in areas they are responsible for, and areas they serve as part of their work, but not an employee's home office.  Requiring a test when there is no logical nexus between the employer's obligations and the request for medical information runs the risk of an ADA violation (not a slam-dunk risk, but enough of a risk to make it a bad idea).

[5] This answer is based on the Americans with Disabilities Act; if an employee has a disability that means they cannot medically tolerate a test (I have not heard of this, but I imagine it is possible), they will have to provide an alternate means of ensuring safety if such an accommodation is reasonable.

[6] This answer is based on the needs of work places with the highest levels of risk and risk management. 

[7] "The New York State Department of Health considers a "close contact" to be "someone who was within 6 feet of an infected person for at least 10 minutes starting from 48 hours before illness onset until the time the person was isolated. The local health department should be contacted if the extent of contact between an individual and a person suspected or confirmed to have COVID-19 is unclear. "

This is an incredibly sensitive, important, and complex set of questions.  I know a lot of people out there in "library land" are waiting on the answer—from many different perspectives.

So we're going to take it slow, break it down, and unpack the components of the answers one step at a time.

Step 1: Considering requiring immunization to COVID-19 as part of a library's evolving Safety Plan

As I have emphasized in numerous pandemic-related answers, any library operating in any capacity right now should have a trustee-approved Safety Plan tailored to its unique operations.  The plan should evolve as new safety-related information emerges, and as library operations change.

As of this writing,[1] some libraries are open to visit.  Some are doing only curbside.  Some are offering more remote programming.  Some have used their information management and lending capacity to distribute PPE, food, and living supplies.  Because of this diversity of service, they all should have different Safety Plans.

The Safety Plan of a library closed to the public for everything but curbside will be different from the Safety Plan of a library open for socially distant use of computers and lending.  The Safety Plan of a library distributing fresh produce will be different from a library streaming programming from its community room to an audience within its area of service (and beyond).  The Safety Plan of a library operating with ten on-site staff in December should be different from the one they used when there was only one employee on-site in June.

Just like the decision to use a particular mode of sanitization, as a library undertakes and changes its unique services, the decision to require immunization of employees should start with vaccination's role not as a stand-alone solution, but as part of an overall approach to limiting the impact of the pandemic on your library, its employees, and your community.  Do the services your library needs to provide the community warrant immunization of employees?  If so, keep reading.

Step 2:  Wait, so does what you said in "Step 1" mean a public library can go ahead and require employees to be vaccinated?

Yes...and NO.

I say "yes," because under the right conditions, the law does allow employers to impose conditions for safety, and that can include mandatory vaccination.[2]  However, I also say "NO," because the phrase "the right conditions" carries a lot of complexity for three little words.  To be safe, the default assumption of a library[3] should always be that it can't require immunization of its employees...and then work to find the way, if well-informed risk management and an updated Safety Plan warrants it, it can require immunizations (and just as critically, if it should).

Step 3: Assessing if a library can require vaccination of employees

Before a library gets too far into an internal debate about if it should amend its Safety Plan to require vaccination of employees, it should assess if it is in a position to do so.  This means having an experienced HR administrator or attorney look at the organization's bylaws, policies, and employment relationships to see if there are any steps or bars to the requirement.

What could such a bar look like?  The most common impediment a library will run into on this is an employment contract—either for individual employees, or with an entire employee union (a "collective bargaining agreement").  The bottom line on this type of impediment: if there is a contract in play, a library must be very tactical, collaborative, and strategic prior to creating—or even considering—immunization as an employment condition.[4]

Another bar might be language in an employee handbook or a pre-pandemic policy.  Still another might be that "gray area" when library employees are considered employees of a school district, village, or town.

The best overall guidance I can offer on this Step is: assessing if your library is positioned to require immunization is a critical step to using vaccination as a tool in your Safety Plan.  Bring in a ringer to help your library assess the extent of what it can do.

Step 4:  Assessing if a library should require vaccination of employees

Okay, let's say you consulted with the best employment lawyer in your village/town/district, they took a close look at whatever relevant contracts and policies your library has, and they have said: "No problem, you can require this."[5]

The next important thing to consider is: should your library require this?

Compelled immunization[6] is an incredibly sensitive area of policy and law.  Since the time Ben Franklin started insisting on smallpox immunizations,[7] this public health issue has had passionate rhetoric on both sides of the debate. 

I have worked with families whose children have documented contraindications for certain vaccines, and it is not a simple issue.  And right now, a public discussion is happening about why people who are African-American might not trust being offered a first round of vaccination.[8]  These are life-and-death issues.

That said, those on the front lines of public service, during a time of pandemic, are at higher risk of both getting infected, and spreading disease.  Science shows vaccination will mitigate that risk.  Thus, under the right circumstances, encouraging such employees to be vaccinated is the right thing to do, and in some cases, employers have made the decision that requiring vaccination is the right thing to do.

The consideration of this question is classic risk management.  What critical services is your library providing to the community?  What exposure to possible infection do those services create?  Does social distancing, PPE, and sanitization mitigate those risks within acceptable tolerances, or would requiring vaccination of employees demonstrably make those employees and the community safer?  Are there certain duties that merit requiring immunization, and other duties (jobs performed 100% remotely, for instance) that do not?  And critical: is mass employee immunization in step with the approach of your local health department?[9]

There is no cookie-cutter answer to these questions, but a responsible decision to require immunization of employees as part of a well-developed and evolving Safety Plan should answer them all.

Step 5:  Developing a robust policy that includes consideration of civil rights, the ADA[10] and privacy

So, let's say your library has followed Steps "1" through "4" and has decided it can, and should, update its Safety Plan to encourage or require immunization of employees.

The next step is developing a policy that:

• Demonstrably does not discriminate or have an unintentional disparate impact on any protected class of people (race, religion, sex, etc.);
• Has appropriate measures for people to opt-out based on a disability accommodation under the ADA or the New York Human Rights Law;
• Protects the privacy of those who either meet the requirement, are granted an accommodation to not meet the requirement, or who must be terminated due to refusal to meet the requirement.[11]
• Manages liability through good planning and the transmission of accurate information, not (just) waivers of liability.[12]

I also suggest that the library strongly consider ensuring, well in advance, that: 1) the vaccine is available to employees, and 2) that employees don’t have to pay for it.  This is because 1) once the library has identified that there are risks in its operations that would be best mitigated through immunization, those activities should be limited until the mitigation is in place, and 2) there can be legal complications if the vaccination requires personal expense.  While this advance planning and cost containment is not precisely a legal compliance concern, they are close first cousins, and should be addressed as part of the Safety Plan. 

Step 6: If a library decides to require immunization, develop a PR Plan (optional, but a very good idea)

I don't need to tell a library audience that what a public library does on this topic will be scrutinized, criticized, and eventually, also a model for the rest of your community.[13]  Since any decision on this point will have its critics, and also (hopefully) its fans, be ready to let your public know, simply and straightforwardly, the basis for your library's decision.

I like the classic "FAQ" approach.  Here are two model FAQ's for two libraries that did the legal analysis and safety assessment, and come to the following decisions:

FAQ: I was told the library board is requiring all the employees to be vaccinated for COVID, is that true?

FAQ ANSWER: Since re-opening on DATE, the NAME Library has had a Safety Plan.  Now our Safety Plan does include supporting voluntary immunization of employees.

FAQ:  Voluntary?  So you are not requiring it?

FAQ ANSWER:  Our risk analysis and still-limited operations showed that we could meet the community's needs by requiring masks, social distancing, and routine sanitization.  We have now added supporting employees in getting vaccinated on a voluntary basis.

FAQ:  Will you ever require it?

FAQ ANSWER:  Only if our operations change and an updated risk analysis shows us that it is best for our employees and for the community.

Another "FAQ" example, for a library that came to a different conclusion, is:

FAQ: I was told the board is requiring all the employees to be vaccinated for COVID, is that true?

FAQ ANSWER: Since re-opening on DATE, the NAME Library has had a Safety Plan.  Now our Safety Plan does include mandatory immunization of employees who are able to be vaccinated.

FAQ:  Why is the library requiring employees to get vaccinated?

FAQ ANSWER:  Feedback shows that the community needs us providing critical services right now.  Our risk analysis showed that in addition to requiring masks, social distancing, and sanitizations, immunization by employees would protect their health, and the community's, while we provide those services.

FAQ:  The vaccine is not 100% available yet.  Did your employees have to do this on their own?

FAQ ANSWER:  Our library worked with [INSTITUTION] to make sure our employees had access to this safety measure, without cost to them.

And that's it.[14]

The important take-away I want to emphasize here is that for individual libraries, there are no quick answers to these questions.

Libraries of all types will be assessing their unique legal and risk positions, and will need to make carefully documented and executed decisions.  Libraries within larger institutions may need to fight for consideration separate from other operations.  Public libraries will need to consider the heightened transparency and public accountability they operate under.  Library systems will be thinking about how they can protect their employees while also supporting their members.  And for the employee on the ground, they'll be thinking about keeping themselves, their families, and their communities safe.

By taking careful, deliberate, and well-informed steps, the answers to the member's questions can be found.

Thank you for a vital question.

[1] December 18, 2020.   For many of you, that means you've been shoveling lots of snow (we're looking at you, Binghamton).

[2] See the case Norman v. NYU Health Systems (2020) (SDNY), 2020 U.S. Dist. LEXIS 180990 *; 19 Accom. Disabilities Dec. (CCH) P19-109

[3] And in this case, I use "library" in its broadest sense: public, association, and even libraries operating as part of a larger institution (such as a college, hospital, or museum).  School libraries, in particular, may both fall under the policies of the institution they are within, but might also have different operations, activities, and exposure that warrant independent risk analysis.

[4] I can't be more specific than that, since in some cases, there may be "emergency" management clauses that could easily allow the requirement of further safety measures, while in other cases, there could be language that makes it clear such a requirement will have to be a point of discussion.  The important take-away here is: if there is a contract in play, don't wing it.  Bring in your lawyer.

[5] The actual answer will of course be in writing and will likely be much more extensive than "No problem!"   It should also be included in the records of library leadership to document the appropriate level of risk analysis.

[6] When I say "controversial," I mean legally.  The science is solid: immunization saves lives.

[7] Ironically, Franklin's young son would die of smallpox before he could be immunized, in part because Franklin's wife Deborah was wary of the new treatment.  Franklin was devastated by the loss of his small, precocious son, and some scholars say it caused a rift in his marriage that was never healed.

[8] If you know your history, you know these fears are based in reality.  If you want to learn more, a good place to start is this New York Times article: https://www.nytimes.com/2020/12/06/opinion/blacks-vaccinations-health.html?searchResultPosition=4

[9] Whenever possible, confirming Safety Plans, and significant revisions of Safety Plans, with the local health department is a very good idea.

[10] The ADA is a critical consideration here.  A good place to start for further information on this is the EEOC, at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.  However, this is just a starting place; as you can see by the linked guidance, this part of your policy cannot be a simple cut-and-paste job.

[11] I know, this sounds cold; and it is.  Considering if a library is actually prepared to terminate employees for refusing to meet the requirements should be part of your library's analysis here, too...because once you develop the policy and start requiring it, granting exceptions without justification can create serious legal complications.

[12] The member asks about waivers for employees who decide not to be immunized.  A waiver of liability should only be used if it is part of a well-developed Safety Plan, and customized for the purpose by an attorney.

[13] Although I just did.  Ah, rhetoric.

[14] I could go on with a few more FAQ's to illustrate the diversity of approaches available (they are kind of fun to write), but I trust you get it.