Hiring Practices

[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.

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

I have good news, and bad news. 

First, the bad news: most of the legal factors involved do not support this type of “job share.” 

Now, for the good news: the type of capacity-adding at the heart of the member’s question is feasible…with a slightly different legal structure.

What are the legal steps to creating such an arrangement?  For chartered libraries, they are numerous and intricate, but considering the goal (added service), the work might be worth it. 

Here are the factors to consider:

1.  The libraries’ chartered identity

The question cites a potential collaboration between a municipal and an association library.  Just in that coupling, there are issues, since depending on entities’ size and type, the institutions will have different staffing requirements.  When considering a capacity-adding staffing model, those requirements should be kept in mind at all times.

2.  The libraries’ bylaws and staffing policies

Staffing requirements and other factors impacting staffing might be recited in the libraries’ bylaws and policies.  So those documents, too, should be factored into this exercise.

3.  The libraries’ plan(s) of service

Does the resulting staffing schema fit into their respective plans of service? 

4.  Labor law details, such as workers’ comp, unemployment, FMLA, and ADA

Here is where the technical nitty-gritty, and the concerns that generally bar “shared” staff between separate entities, starts.  Whenever an employee is brought on to work at more than one legal entity, it is important to confirm who would actually be the employer, so the arrangement complies with state and federal labor regulations. 

One example of why this is important is workers’ compensation.  Per New York state law, if a worker sustains an injury on the job, that worker is covered by “comp,” and the employer is indemnified for (almost) any personal injury claim.  This protects both the employee (who gets some wage/salary continuance) and the employer (who generally does not face additional liability for the injury).  In a truly “shared” employee arrangement, with debatably two (or more) employers, the resulting ambiguity could result in a contested or denied coverage claim.

Another example of how a “dual employer” arrangement could be risky is revealed by  considering the American with Disabilities Act (ADA).  Under the ADA, employers are responsible for providing employees with reasonable accommodations for permanent and temporary disabilities; failure to do so can result in serious liability (and fines).  But with a “shared” worker, it can be tough to know who would have that responsibility…and be responsible for failing to follow the law.

There are many more reasons along these lines.

5.  Salary equity and benefits-related details

This is a critical one, because employees who are not treated equitably in comparison to other employees can have an array of legal claims.  Examples abound: If one library offers more paid time off than the other, how do the libraries offer the “shared” employee a fair and legally compliant arrangement?  If the libraries have different systems for evaluation and promotion, how does the employee advance?  If one library is found to be treating a particular class of employee unfairly, does that impact the other library?  While minimal staffing at the employing institutions might limit some of these concerns, even if there is one other part-time staffer to compare to, ambiguity could turn into liability.

6.  The actual legal relationship between the libraries and the “shared” employee

From the legal perspective, this is where the rubber hits the road.  For the reasons set out above (and many others), it would be almost impossible for both libraries be “joint,” employers: even if possible, it would likely be too risky.  But with another legal relationship, this resource-sharing might be feasible.

What is that “legal relationship?”  Well, it would depend, but the most feasible solution would likely be one library hiring an employee specifically to add to the capacity of other libraries.  In this model, there would be no “shared,” employment; rather, the first library would offer their employees as extra capacity on a contractual basis. 

In such a “Capacity Contract” scenario, money paid by the second (or third) library would not be a salary/benefit contribution, but rather, a fee for services (that happened to help pay for the salary and benefits of a full-time librarian).  The relationship would need to be carefully set out in a detailed contract and hiring documents that confirmed how any performance evaluation, employee discipline, civil rights, personal injury, and other claims would be handled.  And the factors I list above (starting with the identity of both libraries, and considering the various regulatory, bylaw, and policy obligations they have) would have to be assessed to see if it was even feasible.  Most critical would be: is adding to the capacity of others consistent with the hiring library’s plan of service?

With careful planning by leadership and trustees,[1]and input from an attorney and HR professional, this type of “shared” staffing could be built.  The end result would be:

• a careful documented analysis of the relevant factors;
• a carefully developed job description for the capacity-adding employee;
• a contract between the library or system providing the additional resource and the library served. 
• Hopefully, many more patrons served!

As I said at the beginning, this could be a fair amount of work.  But if it provides a small library with access to specific expertise and a diversity of talent it might otherwise not be able to afford, it could be worth it.  Just approach the details with care.

Thank you for this important question.

[1] In addition to those considerations, although it is not legal, I feel I must mention a quasi-political or strategic element. As we know, once taxpayers, municipal leadership, and other entities see cost-cutting, it is hard to close Pandora’s (newly efficient) box.  So while it is not a legal consideration, per say, being mindful of how any innovations in staffing efficiency will play out long-term is wise.  You don’t want a clever solution to become the tool of a permanent budget cut!

To implement a background check process on potential hires, you’ll want to avoid workplace discrimination issues by establishing proper notification steps and by taking the following into consideration.

Prior to instituting a background check program, an employer must be able to demonstrate a connection to the work being done. A clear connection to the work of the employer or of the role needs to be determined.  What are you concerned with in someone’s history relative to the work they will be doing? A clear example of this is checking the sex offender registry for those working with children.

Additionally, the checks must be run consistently. Every prospective employee for the same or similarly situated role or job class should be undergoing the same checks. If the connection to work is being drawn – all roles connected to the work that is justifying the check should be included in the process.

A proper background check process begins with the offer. An employer using a pre-employment background check may only start the background check process after a conditional offer is made to the prospective new hire.

To do the check, the prospective new hire must complete a release form which is commonly provided with the offer letter and include the following notices:

• Fair Credit Reporting Act
• NY Article 23 A

Any information that is obtained in the process of running the check must be evaluated in light of the situations surrounding any found convictions as outlined in NYS’ Article 23A. Background check considerations should be treated on a case-by-case basis and, if results are found, evaluated on their own merits adhering to NY Article 23A guidance.

If a candidate’s conditional offer is rescinded based on the results of the background check, a Pre-Adverse Action Notice must be issued to the candidate giving them 5 days to dispute the results. This notice should include a copy of the report, contact information for disputes, and copies of the FCRA and NY Article 23A.

After 5 days, the employer may send an Adverse Action Notice finalizing the rescinded offer.

There are many background checks services able to provide electronic delivery of release forms, results, and consult on necessary notices. A good background check partner will also have knowledgeable representatives that will help you with understanding results, if necessary, and ensure you have a solid, compliant process.

Many government agencies provide guidance on hiring a 1099 or an employee, and the guidance is centered on the direction and responsibility of the worker and control of work to be done. The first step is knowing the difference between a ‘contractor relationship’ and an ‘employee relationship.

On one end of the continuum, you have a painter coming to paint your house. You review an estimate, sign a contract, tell them what color you want, what to paint and the rest is handled by the painter or painting company. This includes methods, paint, supplies, and even expenses which are often accounted for in the bill you receive once the project is completed.

The above is a true 1099 contractor relationship. Direction and control lie with the contractor, as does the risk of profit or loss.

Employee workers are oriented and subjected to your company policies and total direction on when and how the work needs to be completed, trained, provided supplies and workspaces, and reimbursed for business expenses and travel. Your employees are paid an agreed upon wage regardless of how well the organization does financially. The direction and control over the work lies with the employer, as does the risk of profit or loss.

In our example, the painting company owns financial responsibility for the work and the employment relationship with the workers that paint your house.

Additionally, the protections, rights, and benefits an 'employee' receives would not be available to a contractor to do the same work. That presents an obvious problem in the view of the DOL, IRS, Worker's Compensation, and EEOC. The government agencies vested interest in ensuring worker’s rights are properly protected makes this a high-profile topic that is very much on their radar.

To determine if you need a 1099, evaluate the work that needs to get done. Is it core to the mission of the organization, long-term, and being done by a current employee? If yes, that role that should be classified as an employee.

Unfortunately, there is no ‘catch-all’ provided by governing agencies to help with classifying your workforce. The guidelines for the IRS and DOL can be found here;

IRS: https://www.irs.gov/businesses/small-businesses-self-employed/independent-contractor-self-employed-or-employee

Federal DOL: https://www.dol.gov/agencies/whd/flsa/misclassification

The following includes some key guidelines that will help ensure you are classifying your workforce correctly. The more statements that apply below indicate that your worker is likely an employee:

• Perform work that is core to the business or mission
• Perform work that others are already doing in the organization
• Are paid a set hourly or weekly rate
• Are trained by the organization
• Receive all supplies, work resources, tools, and spaces from the organization
• Are under supervision by a staff member
• Receive expense reimbursement
• Do not have a business or work with other businesses

The most risk-averse method of hiring a worker is as an hourly employee. Stepping away from this classification with a worker should be an exercise in ensuring the work relationship fits the guidance given for a ‘contractor relationship.’

A good rule of thumb in any employment situation is to err in favor of the worker. In the case of uncertainty about worker classification, classify as an employee.