This document summarizes legal issues that may arise for librarians, including conducting background checks on employees, applying for Family Medical Leave, and addressing privacy concerns around patron photos, video surveillance, and public records requests. Key points include outlining when background checks are legally required for hiring, the questions employers can and cannot ask regarding leave under FMLA, and balancing privacy rights with laws governing public buildings and records. Potential future topics are also solicited from attendees.

1. Legal Questions by Georgia
Librarians
CASE STUDIES
PART II
DECEMBER 2013
MARTI A. MINOR
JD, MLIS

2. Disclaimer
These materials are provided as general information
only.
No legal advice is being given by the Georgia Public
Library Service, the Board of Regents of the University
System of Georgia, or any other person.
You should consult with your attorney on all legal
matters.

3. Employment Issues

4. Background Checks
Good reasons to conduct them:
 Aid in good hiring decisions
 Defense in negligent hiring/retention claims
 Georgia employers have a duty to exercise ordinary care not to
hire or retain an employee the employer knew or should have
known posed a risk of harm to others.

5. Background Checks: Cautions
 Criminal
 EEOC advises that blanket criminal background check is
discriminatory
 Should be done later in the process
 Crime/Job relationship
 Credit
 Must have applicant consent
 Federal law prohibits refusal to hire based on bankruptcy

6. Background Checks: Cautions
 Social Media
 Be careful that employment decisions not based on protected
categories
 Refusal to hire lawsuit


Gaskell v. UK (2010) $125,000 settlement
Asking for login info or required “friending”

Legislation prohibiting in MD and IL

7. Background Checks: Disposal
 Securely maintain background on applicants that are
hired or who remain under consideration for hire
 Destroy data about applicants not selected—this is a
protection of privacy concern

8. FMLA: When Employee Does Not Assert
 Frequent absences due to employee’s health issues
with no mention of FMLA
 Always employer’s obligation to designate qualifying
leave, paid or unpaid, under FMLA
Leave is qualifying if it is for:
“an illness, injury, impairment, or physical or mental condition
that involves: (1) inpatient care in a hospital, hospice, or
residential medical care facility; or (2) continuing treatment by a
health care provider.”

9. FMLA: What Questions May Employer Ask
 May ask:
 Type of leave to be taken
 If sick leave, does it qualify under employer’s sick leave policy


If policy permits, may require a doctor’s certification
For status reports—no more often than every 30 days

Includes certification of fitness to return to work
 May NOT ask
 About medical condition
 This prohibition includes asking co-workers or family
members

10. First Amendment Issues

11. Patron-Patron Solicitation
Rights
Limitations
 Hand distribution of
 Library’s code of
religious materials
receives high level
protection by Supreme
Court
 Public libraries are
traditional
embodiment of
marketplace of ideas
conduct
 Cannot disrupt others’
use of the public library
Kreimer v. Morristown

12. Patron-Patron Solicitation: Establishment Clause
 What about separation of church and state?
 Private speech v. governmental speech

13. Access by Minors: Legal Implications
 Supreme Court: Minors are entitled to a “significant
measure” of 1st Amendment protections.
 Two justices recognized these rights are “particularly
strong” in a library setting.

14. Access by Minors: ALA Policy
 Absent a Harmful to Minors Act, a policy of free
access limited only by parental decisions of
appropriateness for very young children
 Georgia’s Harmful to Minors law specifically
exempts public libraries. O.C.G.A. § 16-12-104.

15. Privacy/Confidentiality

16. Photograph & Complaint RE: Library Employee
 No legal prohibition to taking a person’s photo in a
public place even without consent.
 Georgia Supreme Court has recognized a strong
public interest in the operation and functioning of a
public agency.

17. Photo & Complaint: Does employee have claim?
 Employee could take legal action against the patron
only if posting = defamation or invasion of privacy


To be defamatory, must be false statement (not opinion) and
injure the reputation of the subject
For invasion of privacy, must disclose private rather than public
facts and must be offensive and objectionable to reasonable
person

18. Access to Video Surveillance: Police
 Assisting the law enforcement arm of local
government
 Or, violating patron privacy rights?
David Randall: Video Surveillance in Public Libraries: A
Case Of Unintended Consequences (2013)

19. Access to Video Surveillance: Public Record
Georgia Open Records Act


“all documents . . . tapes . . . prepared and maintained . . . by
an agency in the performance of a service or function.”
O.C.G.A. § 50-18-70(b)(2)
Pursuant to an open records request, must be turned over
within three business days. O.C.G.A. § 50-18-71(b)(1)(A).

20. More Topics Discussed in Written Materials
 Mandatory Direct Deposit
 Non-profit Status of a Public Library
 Nepotism/Conflict of Interest on Hiring Committee
 Forcing or Encouraging Retirement

21. Topics for Spring 2014
I need topics! Send your questions and suggestions for
the spring meeting to Julie Walker.