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Session Notes: How Not to Get Sued and other Terrifying Topics

This is part of a series of Session Notes from grantees who have received Professional Development grants from the Office of Commonwealth Libraries. Each grantee will share their professional development experience and include tips and other resources from the workshop or class. Grantees had their choice of an article for the Compendium, a webinar or a podcast. This project was made possible by the Institute of Museum and Library Services.

Melissa Adams
Melissa Adams

 

by Melissa Adams,
Library Director,
Muhlenberg Community Library

When I accepted the position as the new library director at Muhlenberg Community Library, I had no idea how poorly my MLIS degree prepared me for certain duties of the position. While I had taken several classes that covered the managerial aspects of a library, none conveyed the fact that an overwhelming majority of my job would be spent dealing with personnel quandaries, HR activities, and legal issues.

I knew I had to attend the 2016 PALA Conference when I saw the number of programs being offered that dealt with these gaps in my knowledge.  I signed up for every session that discussed an HR or legal topic in hopes of discovering how I could protect my library from being sued, from breaking the law, or from falling into a legal quagmire. In addition to learning something valuable while attending each session, I also simultaneously learned how easy it is to be sued, to violate the law, or to accidentally find yourself knee-deep in legal trouble.

As the old proverb says, “Praemonitus praemunitus.” Forewarned is forearmed. Here are just a few of the kernels of wisdom shared at the PALA Conference that will hopefully help forearm you and your library.

When an Employee Sues
Attorney David Spitko led this enlightening workshop that provided an overview of employment law. One issue that Spitko broached that I found particularly important was in regards to Sexual Harassment and Hostile Environment Harassment claims.  Claims can be made against an employer for harassment initiated by not only an employee, but also by a 3rd party, such as a vendor, contractor, or even a patron. While I’m sure none of us would tolerate a patron harassing one of our employees, I was unaware that the legal responsibility of the employer would extend beyond employees. The fact that the library would be responsible for such situations provides a strong basis for establishing and enforcing a patron behavior policy, such as the Code of Conduct for Library Users policy at Lower Macungie Library, the Rules of Conduct at the Baltimore County Public Library, or the Behavior Policy at Chester County Library. Each of these policies specifically address harassment of staff and other patrons by including a statement such as, “Library patrons are not permitted to engage in harassing behavior of staff or library patrons.” And they all indicate that temporary or permanent banning may occur for any violators.

Impact of New Fair Labor Standards Regulations
If you deal with HR issues at all, you will have heard of the proposed changes to the Fair Labor Standards since they have been mentioned frequently over the last few months. In May of this year, the Department of Labor made a final ruling on new updates to the Fair Labor Standards Act (FLSA). The crux of the changes pertains to the salary threshold used to determine if an employee is exempt or non-exempt from overtime. The new ruling set the annual salary level for an exempt employee to $47,476. While the changes were to go into effect as of December 1, 2016, an Emergency Motion for Preliminary Injunction was granted on November 22, 2016 temporarily halting the changes from taking place.

After reading numerous articles about the changes to the FLSA, I decided to attend the session on this topic to gather even more information about the changes. At the session, a discussion regarding employees volunteering was raised. Like most libraries, we periodically have fundraising events, such as book sales or pancake fundraisers. If previously exempt employees now qualify for overtime, then asking them to work for these kinds of events could take away from the overall fundraising profits. Members of the board wondered, “Could staff volunteer to assist with fundraisers if they were willing?” David Spitko, the attorney who led this session, explained that employees can only volunteer their time for narrowly defined criteria. The services must be considered “civic, charitable or humanitarian,” cannot be the same activities that the employee was hired to perform, and there can be “no coercion or pressure to serve.” Each of these could be potential loopholes for a lawsuit. Even a harmless inquiry about whether an employee wants to help out at the annual chili cook-off could be perceived as coercion, and if one of the employee’s duties during work hours is to help organize the cook-off or sell tickets at the circulation desk, then having them help at the event without being compensated could trigger another trap.

Another area of concern I discovered pertains to employees who like to come into work earlier than they are scheduled. If those employees are doing any work related activity and it can be reasonably assumed that the employer knew it was going on, then they need to be paid for that extra time.

One important piece of information that pertains to all aspects of the FLSA is that employees cannot waive their FLSA rights for any reason.

The NEW PA Child Protective Services Law: Understanding Its Impact & Controlling Its Risk
This session, led by Robert J. Longley and attorney George Randolph, was one of the most eye-opening sessions of the whole conference. With the changes to the new Child Protective Services Law, most libraries are now more vulnerable to lawsuits. The new law specifically applies to any organization that provides a “program, activity or service” for children, a description that includes most libraries. Additionally, the definitions of what constitutes abuse have become broader. Whereas previously an injury had to be “severe” to be considered abuse, now any bodily injury would qualify. The new law not only covers physical injuries, but also mental injuries which “render a child chronically and severely anxious, agitated, depressed, and socially withdrawn.” Because of the broadened definition of child abuse, there is a greater likelihood that libraries might find themselves in a child abuse lawsuit. There are two key reasons most general liability insurance policies will not cover such lawsuits: they often exclude intentional acts and instances of child abuse are considered intentional acts; and they generally only cover bodily injuries, providing no coverage for the new mental injuries.

In addition to requiring employees and volunteers to get their PA Child Abuse History Clearance, PA Criminal History Check, and the FBI Fingerprinting, Longley and Randolph encourage libraries to do the following:

  • Update their existing insurance policy or purchase a new one that specifically covers child abuse claims;
  • Adopt a Child Abuse Policy that all volunteers and employees are required to read and sign;
  • Have all employees complete the Mandated Reporter Training and retain their certificates of completion;
  • Install surveillance cameras;
  • Require two or more adults to be with a single child at any time.

One last piece of advice was to include a statement on all borrower application forms that mandates binding arbitration in lieu of litigation, requires all disputes be handled in the county where the library is located, and that the library be awarded counsel fees if it is the prevailing party.

More information about this topic and the suggested wording for any borrower application form statements can be found on the PaLA Annual Conference Handouts website.

Gambling/Fund Raising: Legal or Illegal?
Todd Merlina, an Enforcement Supervisor for the PA State Police Bureau of Liquor Enforcement, presented this session that covered the Dos and Don’ts of Small Games of Chance (SGOC). One of the most important things libraries must do if they are planning on holding a fundraising raffle or 50/50 drawing is to first obtain a SGOC license; otherwise your fundraiser could result in some serious consequences. There are very specific rules and requirements for operating a SGOC and I recommend taking a look at the 149 page SGOC PowerPoint created by the PA State Police Bureau of Liquor Control Enforcement for more in-depth information. Probably the most common SGOC that many libraries utilize is the ever popular raffle. In order for it to be considered a SGOC under the law, the raffle has to have three components: consideration, chance, and reward. In other words, it must cost something to play; it must be a game based wholly or predominantly on chance; and it must provide a reward for the winner that is more than the amount required to play. If one of the three isn’t present, it’s not considered gambling and the law does not apply.

When having a SGOC raffle, be sure you are using proper raffle tickets. A lot of libraries use what are considered 50/50 tickets (those two-part individually numbered tickets) for their basket raffles, but those 50/50 tickets can only be used for a true 50/50 drawing. The law requires that all raffle ticket be sequentially numbered have the following:

  • detachable stub with the same number;
  • lines for name, address, and phone number;
  • date, time and location of the drawing;
  • licensee’s name;
  • SGOC license number;
  • cost of the ticket;
  • description of the prize(s).

Additionally, a logbook must be kept that shows to whom each ticket was sold. Examples of both a proper raffle ticket and the 50/50 tickets can be found in the PowerPoint mentioned above.

After attending each of these four sessions I feel more empowered yet also more conscious of how careful and proactive the library has to be in order to avoid legal troubles. Being the director of a small to medium public library is much more akin to running a small business than it is to any other library related job. And since many public libraries lack HR departments with employees who are HR or legal experts, directors and other members of the management team have to broaden their skill sets to include HR and legal knowledge. It is vital to continue developing as library professionals by attending events like the Annual PaLA Conference or Chapter Workshops. I’m grateful to have been able to attend this year’s conference, and I hope that in the future these topics continue to be addressed.

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