LibraryLaw Blog

Can library management legally access employee's Facebook and Myspace pages?

A New Jersey jury recently found that a restaurant did not violate employee privacy or cause emotional distress by accessing an invitation-only Myspace page. The page served as a venting spot for employees.  The restaurant was, however, found to be in violation of federal and New Jersey laws prohibiting accessing the information without permission. The employer asked another employee for her password, and she testified that she thought she “would have gotten in some sort of trouble” if she refused to cooperate. Shortly thereafter, the company terminated plaintiffs based on their comments on the site and involvement in creating it. Pietrylo v. Hillstone Restaurant Group. 

Mr. Victor Schacter of Fenwick & West LLP writes in the Fenwick Employent Brief (Sept. 2009):

"This case highlights the challenges employers face with respect to employees’ blogs and social networking sites that contain work-related speech. While this decision does not restrict an employer’s right to monitor communications and information within its own computer networks, it demonstrates the risks of attempting to access an employee’s restricted online content without the employee’s authorization. Employers should consider implementing written policies that address employee work-related speech on social networking and other online sites to require that employees observe appropriate guidelines when referring to the company, its employees, services, and customers."

Library Law: Libraries and Pregnancy Leave

courtesy of the Metropolitan Library System - new article by Gerard E. Dempsey and Janet N. Petsche, partners with the law firm of Klein, Thorpe & Jenkins, Ltd., an Illinois law firm

Library Law: Libraries and Pregnancy Leave

Pregnancy related medical conditions may or may not qualify a library or library system employee for leave under current law. Library administrators should be aware of which laws are to be considered when approached by an employee for such leave. In addition, hiring procedures, provision of healths insurance and distribution of fringe benefits can be affected by the law pertaining to pregnant applicants for employment and current employees. This article will explain how the law applies to these situations.

Hooray - I figured out how to use tags instead of categories in this blog

As I suspected, it's much easier and more flexible.  So if any of you are looking for new posts based on categories, you may not find them. Use the technorati tags at the bottom of a post instead. If it works like I think it will, I'll probably stop using categories altogether.

Update: It looks as if users who click on a technorati tag below will get everyone in the world's posts with those tags. That's useful, but it would be nice to have an option to limit it to this blog, the way flickr does.  Well, there's always the search button in the blog...

Body piercings, library dress codes and the law

Have any readers challenged a library dress code, or faced such a challenge?  Take a look at the North Suburban Library System's (Ill.) latest article, Library Law: Library Dress Codes: Keeping Up Appearances by Gerard E. Dempsey and Janet N. Petsche, February 8, 2007.

The difference between library employees and patrons in warrantless searches of email

If you're interested in the intersection between police searches, library employee political speech, political patronage, patron privacy, read on.

This case has it all - claims that library staff campaigned against a mayor using library equipment, a police raid in the library, and an 80 page court decision sorting it all out.

Amidst a slew of plaintiffs, defendants and issues are claims against the mayor and the police by a former library director, a library systems administrator, and an independent contractor to the library.

On April 20, 2004, a police detective and computer expert went to the library during open hours without a warrant. They searched the library system administrator's computer for 90 minutes after the administrator provided them with his password. They then searched a library contractor's email account, apparently ordering him to provide his Yahoo password or face arrest.

Did the police have the right to search these computers?  The court engaged in very different legal analyses for the men.  For the director and the system administrator, both employees, the court ruled that there was no reasonable expectation of privacy in their work emails and stored documents.

The independent contractor, however, said he had used the library computers with a Yahoo account as a patron.  The court said this was a private email account, not a workplace account. The library contractor did have a reasonable expectation of privacy in his Yahoo account. Did he voluntarily consent to the search? That was left for a jury to decide.

Voluntary consent is a thorny issue. The court mentioned that that the director gave voluntary consent to search his computer since he gave the police his password. More on that below.

Political patronage

Additionally, the police chief, the library director and the systems administrator claimed they lost their jobs because they didn't support the mayor's candidacy. This could be a violation of the First Amendment's guarantee of freedom of association.

Of course, it's not a simple analysis. The court noted that "replacing key personnel from a former administration with campaign supporters and other politically-loyal allies of a newly-elected official is a time-honored political practice."  The circuit has a well developed legal test to determine when it is permissible, under the First Amendment, to require a certain political affiliation in a top public employee.

The key factor boiled down to whether the position was "policy making" with influence over programs and policy initiatives.  The chief of police was a policy maker, so it was okay for the mayor to replace him with a political appointment (unless other factors like a merit personnel system were violated).

There was no evidence, however, that the systems administrator had a policy making position. This actually helped him, as that means it's not okay to terminate him based on his political affiliation. A jury needs to decide if he was terminated because of his politics.

As for the library director, the court didn't need to reach that issue, since it determined that his resignation was voluntary. More on this below.

Wilson v. Moreau, 2006 U.S. Dist. LEXIS 55310 (August 4, 2006).

Minow comments:  This case is a clear example of the difference between employee and patron privacy.  I don't understand why the library confidentiality law was not cited (see post continuation), but actually it's much better that the court found patron privacy directly in the Fourth Amendment. I hope someone writes an article on it. Even if library employees were improperly using library equipment for campaign purposes, that would be a city rules violation, not a criminal offense. (I'm not saying there was improper use - this is apparently still in dispute. Some campaign materials were found on the library computers, yet the library employee said he had only worked on the campaign at home.)   Lesson to everyone: keep your political campaign work off the library computer.  If you work on it during a break, use your Yahoo account and a public computer.

As for the library director's "voluntary" resignation - it seems to me that this should have gone to a jury.  The director said in his affidavit:

He [Moreau] immediately began to harass members of my staff and me. It seemed that he was obsessed with possibility that library staff members had politically supported his opponent. Finally, unable to continue to bear Mr. Moreau's harassment I told the City Council at a meeting on April 12 that I was stepping down from my position as library director and that my last day would be April 30.

Also, about that consent - I find the director's affidavit showing something other than a pure voluntary permission to police to search his computer. His affidavit says:

. . . I reluctantly stated that the police officers could have access to the computers but I meant this as my decision not to resist the search.

The court cited a 1993 First Circuit opinion which found voluntary consent even after seven or eight law enforcement officers, with guns drawn, entered the home, arrested and handcuffed the defendant. United States v. Barnett, 989 F.2d 546, 555 (1st Cir. 1993).  I don't even feel a need to comment on the absurdity of this.

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Update Aug. 14 - Ann Bartow, in Anyone Who Blogs From Work Needs to Read This, points to an Orin Kerr post about a new Ninth Circuit opinion on workplace privacy, United States v. Zeigler.  Orin discusses the difference between the public workplace (public library employees fit in here) and the private workplace (corporate and other private library employees fit in there)... which he indicates were mostly obliterated in the decision. See http://www.orinkerr.com/2006/08/09/ninth-circuit-mostly-eliminates-private-sector-workplace-privacy-rights-in-computers/

Librarian wins in her lawsuit against library - religious accommodation

Librarian wins in trial against library that required her to work on Sundays.  See law professor Howard M. Friedman's Religion Clause blog.  The jury awarded her over $53,000. Rehm v. Rolling Hills Consolidated Library 2006, U.S. Dist. Ct for the Western District of Missouri, St. Joseph Division Case No. 04-6088-CV-SJ-JTM

When the library sends staff home due to severe weather, does it have to pay them?

It may depend on whether the employees are "exempt" or "non-exempt" under the federal Fair Labor Standards Act.

Illinois lawyers Gerard E. Dempsey and Janet N. Petsche analzye a pair of opinion letters issued in October 2005 by the Department of Labor on severe weather emergencies. See Library Law: Severe Weather Warning: FLSA Consequences for Closing the Library? Part I   - Credit to the North Suburban Illinois Library System

Job opening - New York Public Library Associate Counsel

The New York Public Library

ASSOCIATE COUNSEL
Counsel's Office

The Library
Libraries are the memory of humankind, irreplaceable repositories of documents of human thought and action.  The New York Public Library comprises simultaneously a set of scholarly research collections and a network of community libraries, and its intellectual and cultural range is both global and local, while singularly attuned to New York City.
That combination lends to the Library an extraordinary richness.

Job Description
As the Associate Counsel for The New York Public Library, you will
assist the Vice President, General Counsel and Secretary and the Deputy General Counsel and Assistant Secretary with the Library's legal needs and coordination of outside counsel work.  You will have transactional and advisory responsibility for matters relating to corporate and not-for-profit law; negotiating and drafting agreements; real estate and leasing transactions; litigation supervision; corporate governance; collection acquisitions and exhibitions; intellectual property, publishing and licensing issues; and tax matters.

Job Requirements
To qualify, you must have a Bachelor's degree and a Juris Doctorate degree and be a member of the New York Bar.  You will also have at least three to five years of broad professional experience in a law firm or corporate legal office, with emphasis on general corporate, contracting and transactional work; excellent communication and interpersonal skills; and proficient computer skills.  Demonstrated legal experience
in real estate, not-for-profits, intellectual property, government contracting/requirements, and litigation is a plus!

To apply, please email cover letter and resume to lsresumes@nypl.org.
Refer to job code: LL-ATTY

www.nypl.org

Equal Opportunity Employer

Only candidates selected for further consideration will be contacted.

Library employment law Q & A (Michigan)

I just stumbled upon the Foster, Swift, Collins & Smith website which has a page of Michigan library employment Q & A by Stephen Schulz (as seen in the Michigan Library Association Newsletter)

Go to the site for brief answers to these questions (Michigan based with some federal info):

A Library was sued by a former employee for alleged discrimination. During the litigation, it was discovered that the Library was maintaining employment records of its personnel for a period of ninety days after the employment relationship was terminated. Could there be a problem with this practice? 
 
One of the Library's employees has returned from lunch seeming a little strange. His speech is slurred and his eyes are glassy, but otherwise he seems to have general control of his facilities. The employee is told to report to the medical clinic, located on the other side of town, for a drug test. He is further instructed that the Library Director will meet him there after getting assignments rearranged following the lunch hour. On the way to the clinic, the employee is in an accident and seriously injures passengers in another vehicle. Is the Library liable?
 
An employee receives good performance reviews for several years. In fact, the employee's work is substandard, but the supervisor doesn't want to hurt the employee's feelings. The library now wants to terminate the employee, but there is no documentation to prove that performance was a problem. Are they going to run into any difficulties?

Guidelines for Drafting a Job Description 
 
Can a library limit the time period that an employee or former employee has to sue the library over employment or other claims? 

A library pays its employees on a biweekly basis. One of the staff works 20 hours one week and 46 hours the second week. When paying the employee, the library averages the hours for the two weeks resulting in 33 hours each week and thereby avoids paying overtime compensation. Is this permissible? 

Independent Contractor vs. Employee 

When can we throw out medical records? 

When an employee applied for a job with a library, he signed an employment application that contained a provision in which he agreed to arbitrate any claims arising out of his employment. Two years later, the employee filed an employment discrimination lawsuit in state court. Should the library attempt to enforce the arbitration provision?

National Labor Relations Act & Public Employment Relations Act 

Is your library's harassment policy up to date? 

Do we have to pay for voluntary work? 

Library Retirement Program/Separation Agreements 

We have a vacation and sick leave policy that allows our employees to carry over unused time.  Do we have to pay an employee who quits or is fired for that time? 

May a library patron try to convert library staff to accept Jesus?

I turn this over to you, gentle readers. A librarian friend of mine sent me this:

One of our patrons keeps trying to endlessly engage us (staff) in his religious tirades. He's been told it's not appropriate and he screams discrimination and says if he were discussing the sports scores no one would say anything. He's probably right.Yesterday he called to look for some books. While I was checking for them and making some requested changes in his library record, he asked me if I had accepted Jesus as my personal savior. I managed to say I was looking for his materials and didn't want to discuss it but he kept at it and at it. Any time now he'll be coming in to collect the two books I got for him. The staff is dreading this. So how should this go? If he were indeed to talk about sports I would at least try to nod and smile. I don't want to talk religion with him. He says things like if I'd just listen, he could save me from eternal damnation. If I say I don't want to be saved, that just opens up other trails for him to go on.There shouldn't be different rules for staff and patrons for dealing with this guy. Just because we're public employees, we don't have to put up with this, do we?

Your thoughts?