Office of Commonwealth Libraries: 20th Annual Trustee Institute

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Office of Commonwealth Libraries 20th Annual
Trustee Institute
PERSONNEL ISSUES AND THE LAW
Brian D. Balonick, Esq.Klett Rooney Lieber and
Schorling40th Floor One Oxford Centre
Pittsburgh, PA 15219412-392-2167
(tel.)412-392-2128 (fax)bdbalonick_at_klettrooney.c
om
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TEST YOUR KNOWLEDGE HARASSMENT

• You are a trustee for a mid-sized library. A
  male employee comes to the Director and tells her
  he does not like the way his female supervisor
  stares at him.
• Should the Director discipline the female
  supervisor for violating the librarys
  anti-harassment policy?
• What do you tell the Director if she asks your
  advice?

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TEST YOUR KNOWLEDGE HARRASMENT

• After work on Friday night, a group of employees
  go to a bar. One of the male employees gropes
  one of the females while they are slow dancing
  together.
• The following Monday, the female employee comes
  to the Director to lodge a complaint against the
  male employee and says she refuses to work when
  he is scheduled because she is afraid of what he
  may do.
• How should the library respond?

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TEST YOUR KNOWLEDGE HARRASMENT

• A long-term employee with a good record uses a
  derogatory racial remark to a teenager who is
  being loud. It is overheard by several employees
  and customers. What should the library do?
• Same facts . . . but assume that a few years
  earlier, the employee used the same term in a
  similar circumstance. Does that change the
  librarys decision?

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TEST YOUR KNOWLEDGE HARASSMENT

• A female employee breaks off a consensual sexual
  relationship she was having with a male
  supervisor. The supervisor then starts to
  sexually harass the employee with inappropriate
  comments and touching. The female complains and,
  although the Director determines it was a serious
  violation, she decides to only give the male
  supervisor a final written warning because the
  relationship had been consensual. All harassment
  stops, but the female employee quits because she
  considers the work place to be intolerable. If
  she sues, will she win?

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TEST YOUR KNOWLEDGE HARASSMENT

• From time to time, employees at the library
  receive jokes which other employees have
  forwarded from their friends on the internet.
  Although some have been a little risqué, the
  Director has not said anything because the
  employees have all seemed to enjoy them. Now,
  Sue, who is pregnant, comes to you and complains,
  because another employee, Bob, has forwarded to
  her anti-abortion messages with pictures of dead
  fetuses. The Director talks to Bob, who says
  that Sue has spoken about abortion and, for
  religious reasons, he is compelled to try and
  stop her. What action, if any, can the library
  take?

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KEYS TO LAWFULLY HANDLING HARASSMENT

• Ensure that your library has a written harassment
  policy which narrowly defines to whom a complaint
  is brought is crucial.
• Ensure that the library determines whether a
  complaint alleges harassment on the basis of an
  unlawful classification.
• Ensure that the library takes prompt action.
• Ensure that the library documents complaints and
  responses.

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WHAT YOU CAN DO AS A TRUSTEE

• Recognize that your libraries are subject to a
  number of, often onerous, employment laws.
• Support your library management in their
  development of employment policies and practices
  that are consistent with federal and state law.
• Recognize that your library management may
  occasionally need the assistance of legal counsel
  to guide them through personnel issues.

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TEST YOUR KNOWLEDGE ADA

• Your library hires a woman for a position, and a
  month later, while still in her probationary
  period, she tells the Director she is pregnant
  and has to miss work because of problems relating
  to her pregnancy.
• Should she be given time off?

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TEST YOUR KNOWLEDGE ADA

• A supervisory employee has M.S. The condition
  worsens to the point where the employee asks the
  Director to accommodate her by allowing her to
  occasionally work at home.
• What should be done?

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TEST YOUR KNOWLEDGE ADA

• An employee hurts himself while bicycling on the
  weekend. Now, he cannot lift his arm over his
  shoulder. As a result, he is slow in terms of
  reshelving books.
• Can the library terminate him?

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TEST YOUR KNOWLEDGE ADA

• An employee admits she has a drug problem and
  checks herself into a rehabilitation center.
• When that is completed, can the library tell the
  employee that she must have a full physical
  before she comes back to work?

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TEST YOUR KNOWLEDGE ADA

• An employee has told the library Director that
  he has been diagnosed with depression. He has
  been coming in late and has been warned him the
  next time it happens, he will be terminated. The
  next day, he arrives at work an hour late and the
  Director sends him home and tells him he will be
  hearing from her.
• The Director decides to terminate him. Before
  sending him written confirmation, he calls the
  Director and tells her he was late because his
  medication makes it difficult for him to get up
  on time. What should the library do?

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KEYS TO MAKING LAWFUL ACCOMMODATIONS

• Ensure that the library has been informed that
  the employee is disabled and needs an
  accommodation.
• Ensure that the library has determined whether
  the employee is disabled (i.e., does the employee
  have a physical or mental impairment that
  substantially limits a major life activity?).
• Ensure that the library has discussed possible
  reasonable accommodations with the employee (the
  interactive process).
• Ensure that the library has determined whether
  the requested accommodation is reasonable, or an
  undue burden.

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TEST YOUR KNOWLEDGE LEAVE ISSUES

• An employee comes to the library Director with a
  doctors note saying he/she cannot work more than
  40 hours per week.
• Generally, all employees have to work some
  overtime at least one week per month.
• What should the library do?

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TEST YOUR KNOWLEDGE LEAVE ISSUES

• An employee tells the library Director she has a
  child with a seizure disorder and will have to
  leave work whenever the childs school calls to
  say there has been an incident.
• The number of calls has increased recently, and
  employees are complaining about the burden it
  places on them.
• What can the library do?

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TEST YOUR KNOWLEDGE LEAVE ISSUES

• An employee comes in with a note saying she is
  under a doctors care, and will not be able to
  work until being released by the doctor.
• The next appointment is the beginning of
  January.
• What should the library do?

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TEST YOUR KNOWLEDGE LEAVE ISSUES

• The Director allows an employee with migraines
  to miss work when they occur.
• Over the last several months, however, the
  migraines usually occur on Fridays and Mondays.
• What can the library do?

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TEST YOUR KNOWLEDGE LEAVE ISSUES

• Your library is covered by the Family and
  Medical Leave Act (FMLA).
• An employee has a work related injury and is off
  on workers compensation for eight weeks. Later
  that year, the employee becomes pregnant and, due
  to the earlier injury, her doctor tells her to
  stop working four weeks before the baby is due
  and not to come back until three months after the
  baby is born.
• Does the library have to give the employee time
  off? If so, how much time?

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KEYS TO MAKING LAWFUL LEAVE DECISIONS

• If your library is covered by the FMLA, the
  person responsible for administering leave should
  determine whether the employees health
  impairment is a serious health condition.
• Regardless of whether the library is covered by
  the FMLA, they should determine whether the
  employee has a physical or mental impairment that
  substantially limits a major life activity. If
  so, they should go through accommodation process.
  
• Endure that your library reviews its policies and
  determines what its has done for other employees.
• Ensure that your library coordinates notice and
  return to work issues.

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WHY SHOULD YOU CARE ABOUT EMPLOYMENT LAWS?

• YOUR LIBRARY DOES NOT DISCRIMINATE, RETALIATE OR
  HARASS, AND EMPLOYEES ARE PAID WHAT THEY ARE
  OWED
• 90, if not more, of employment lawsuits do not
  focus on whether the employer had discriminatory
  intent, etc. Rather, they focus on policies and
  procedures and how employers treat similarly
  situated employees.

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ARE YOUR LIBRARIES COVERED BY FEDERAL AND STATE
EMPLOYMENT LAWS?

• FEDERAL EMPLOYMENT LAWS
• Civil Rights Act of 1965, as amended (Title VII)
• Americans With Disabilities Act
• Family and Medical Leave Act
• Age Discrimination In Employment Act
• Older Workers Benefit Protection Act
• Occupational Safety and Health Act
• Fair Labor Standards Act
• Uniform Services Act

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ARE YOUR LIBRARIES COVERED BY FEDERAL AND STATE
EMPLOYMENT LAWS?

• STATE EMPLOYMENT LAWS
• Pennsylvania Human Relations Act
• Pennsylvania Wage Payment and Collection Law
• Pennsylvania Workers Compensation Law

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KEYS TO AVOID VIOLATING FEDERAL AND STATE
EMPLOYMENT LAWS

• If your library makes reasonable personnel
  decisions, it will generally be in compliance
  with the law.
• All employees should be on notice of what is
  expected.
• This rule applies to general policies and
  procedures for all employees, as well as issues
  affecting specific employees (e.g., job
  descriptions, evaluations, disciplinary notices).

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KEYS TO AVOID VIOLATING FEDERAL AND STATE
EMPLOYMENT LAWS

• Maintain consistency in employment decisions.
• To the extent possible, your library should treat
  similarly situated employees the same.
• Note The library does not have to treat
  everyone the same, just those who are similarly
  situated.

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KEYS TO AVOID VIOLATING FEDERAL AND STATE
EMPLOYMENT LAWS

• Maintain proper documents.
• Having good documentation reduces the risk of he
  said/she said disputes.
• Good documents are better than no documents, but
  no documents are better than bad documents!

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KEYS TO AVOID VIOLATING FEDERAL AND STATE
EMPLOYMENT LAWS

• Maintain objective, job-related criteria.
• To the extent possible, your library should make
  employment decisions based upon objective
  criteria that are related to the job in question.
• Be fair.
• Even if your library has the legal right to
  take action, think about whether it is fair.

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KEYS TO AVOID VIOLATING FEDERAL AND STATE
EMPLOYMENT LAWS

• Develop adequate procedures for raising
  complaints
• Whether your library faces a complaint about
  unlawful discrimination, or general complaints,
  it is always better to know about issues before
  they become problems.

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TEST YOUR KNOWLEDGE HIRING

• Your library wants to hire a part-time employee
  to work flexible hours. To ensure that the
  employee will be able to work the required hours,
  the Director wants to ask applicants if they have
  children and, if so, what arrangements they have
  made for childcare.
• Is that legal?

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TEST YOUR KNOWLEDGE HIRING

• The newly hired part-time employee will often be
  working in the childrens section, which may
  require the employee to lift children off the
  floor. The Director plans to ask applicants
  whether they can lift up to 50 lbs?
• Is that legal?

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TEST YOUR KNOWLEDGE HIRING

• The employee will often be required to stay
  until closing. Your library is situated in a
  dangerous location. The Director wants to try to
  hire a male, so as to avoid placing a woman in a
  situation where she has to walk out alone at
  night.
• Is that legal?

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TEST YOUR KNOWLEDGE HIRING

• An applicant comes to the interview dressed
  sloppily and wearing a turban. The Director
  informs you of this and tells you she has decided
  not to bring the applicant back for a second
  interview because of his/her unprofessional
  dress.
• Is that legal?

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KEYS TO MAKING LAWFUL HIRING DECISIONS

• Ensure that your library staff has a list of
  questions they cannot ask.
• Ensure that your library staff has determined
  what is required of a job based upon an
  up-to-date job description.
• Ensure that your library staff has developed a
  list of job-related questions that they ask all
  applicants for that position.
• Ensure that your library staff are documenting
  key information and reasons why they decided to
  hire/not hire each candidate.