Top 10 Legal Concerns from Florida Public Librarians

Transcription

1 Top 10 Legal Concerns from Florida Public Librarians 1 O C T O B E R 1 9, A F T E R N O O N S E S S I O N Marti A. Minor, J.D., M.L.I.S.

2 Legal Disclaimer These materials are provided as general information only. 2 No legal advice is being given by the Florida Library Association or any other person. Consult your attorney for advice on making decisions about legal issues.

3 Medical Situations 3

4 Duty in Medical Emergency? Florida courts have held that premises owners satisfy the legal duty to come to the aid of a patron experiencing a medical emergency by summoning medical assistance within a reasonable time. There is no duty to provide medical care or medical rescue services. 4

5 Good Samaritan Law 5 A person who willingly, and in good faith, provides emergency care or treatment to another in an emergency situation shall not be liable for any civil damages as a result of such aid or treatment

6 Calling for Help Calling medical assistance against the patron s wishes: no liability perhaps a disgruntled patron. 6 Illegal behavior drug use. No legal guidelines, best practice: seek help from medical or law enforcement professionals.

7 Premises Liability An owner of land, even a governmental agency, is liable if a person is hurt on the property when government employees knew or should have known of the hazardous condition. Highest protection is for those invited to the premises. Very little protection for a trespasser. State and its subdivisions have waived sovereign immunity, but any claim is capped at $200,000. 7

8 Providing Legal Assistance 8

9 Librarian s Role in Providing Legal Information By providing access to legal information, librarians can advance the administration of justice. Librarians must be cognizant of the danger of going too far in offering legal assistance. Florida Constitution provides authority to the state s Supreme Court to prohibit the unlicensed practice of law. Art. V, Sec

10 Where to Refer Patrons for Legal Assistance Florida Lawyers in Libraries A statewide collaboration between lawyers and librarians designed to inform members of the public about issues of access to justice and to provide guidance and information on legal resources and referrals available to the public. FloridaLawHelp.org Floridabar.org/lawyerreferral 10

11 Grandparents Rights 11

12 Florida Law 12 Prior to 2000, Florida, by statute, granted a grandparent with whom a grandchild resided some legal standing and authority over the child. The Florida Supreme Court struck down this law as an unconstitutional interference with a natural parent's fundamental right to rear his or her child. Richardson v. Richardson, 766 So. 2d 1036, 1037 (Fla. 2000). Therefore, absent a court order or power of attorney, a grandparent has no more legal authority over a grandchild that any other non-parental caregiver.

13 Voluntary Responsibility Under Florida law, a person under the age of 18 does not have the capacity to enter into a valid contract Any person over the age of 18 (e.g., grandparent), may agree to be legally responsible for the debts of another person. What about permission to use the Internet? Grandparent does not have this authority, could result in a challenge by the parent. 13

14 Employment 14

15 Application & Interview Questions Purpose: obtain information from job candidates in order to allow the employer to select the applicant who is the best fit for the organization. Avoid questions designed to elicit information that cannot be legally used in hiring decisions. 15 No prohibition on what a job candidate reveals voluntarily.

16 Do NOT Ask Maiden name Marital status Plans to have children Arrangements for child care Age can confirm min age Citizenship can confirm legal to work 16 Membership in social/political groups Religious affiliation Race Sex or sexual preference Disability Criminal history** see section on background checks Military history

17 Educational history Prior job experience References OK to Ask Drug test (but alcohol test ok only if reasonable suspicion that employee is under the influence at work) Needs for accommodations (can t use as a basis not to hire) Membership in trade/professional organizations After hire: family insurance coverage After hire: ability to work on religious holidays 17

18 Fair Labor Standards Act 18 Requires employers to pay a minimum wage and compensate workers for overtime at a rate of 1.5 X hourly rate Comp time accrual public employers Must be 1.5 hours of comp time for each hour of overtime worked Not every employee qualifies for overtime White Collar Exemptions

19 Increase in Salary Threshold Currently: Salaried workers making more than $23,660 annually are exempt from OT requirements if the job is white collar: administrative, executive, or professional. 19 As of December 1, 2016, salary threshold increases to $47,476.

20 White Collar Workers 20 Executive Administrative Management duties; Direct work of 2 or more FT employees; and Power to hire/fire or recommend hire/fire. Office or non-manual work related to management; and Primary duties require exercise of discretion and independent judgment regarding matters of significance.

21 Learned professional Professional Advanced knowledge required for primary duties; In a field of science or learning; and Acquired through prolonged course of specialized instruction 21 Teacher: exempt regardless of salary level if primary duty is teaching, tutoring, instructing, or lecturing

22 Background Checks 22 Under Florida law, there is a presumption that an employer was not negligent in hiring an employee if the employee conducted a background investigation In addition, this background investigation must not reveal any information that reasonably demonstrates the unsuitability of the prospective employee for the particular work to be performed or for the employment in general.

23 Criminal Background Checks EEOC Guidance advises that blanket criminal background check is discriminatory Lawsuits BMW: settled $1.6 million (Sept. 2015) Dollar General: still in litigation Freeman: employer prevailed EEOC failed to make case because of poor expert analysis (Feb. 2015) National Trends 24 states have adopted Ban the Box policies not Florida. Some Florida municipalities have ordinances prohibiting criminal background check by public employer until offer is extended. Check your jurisdiction. municode.com/library/fl

24 Fair Credit Reporting Act 24 If you get a background report from company in the business of compiling background info, you must: Tell the applicant in written, stand-alone format that you might use the information for decisions about employment. Get the applicant's written permission to do the background check. Certify to the company from which you are getting the report that you: 1. Notified the applicant and got permission to get a background report; 2. Complied with all of the FCRA requirements; and 3. Won't discriminate against the applicant or otherwise misuse the information in violation of federal or state equal opportunity laws or regulations.

25 Odds & Ends 25

26 Internet Policy 26 It s important for librarians to be cognizant of the law regarding Internet access, particularly the Children s Internet Protection Act (CIPA) and E-Rate funding requirements. See Internet Safety Policy Guidelines: ala.org/alsc/issuesadv/internettech/childrentheinternetpol iciesthatwork/childreninternetarttwo A library policy that results in a wholesale refusal to disable filters at the request of an adult patron falls outside of what was approved by the United States Supreme Court and could expose a library to a legal challenge. See United States v. Am. Library Ass'n, 539 U.S. 194 (2003). tmsnrt.rs/2eqlcqz

27 Library Meeting Room 27 Article VI of the Library Bill of Rights states that such facilities should be made available to the public served by the given library on an equitable basis, regardless of the beliefs or affiliations of individuals or groups requesting their use. Courts have consistently held that libraries may not exclude religious groups from their meeting rooms solely because the group is religious in character or because the meeting may include religious activities. One court (California) has held that that public library may exclude worship services. Faith Ctr. Church Evangelistic Ministries v. Glover, 480 F.3d 891, 895 (9th Cir. 2007) abrogated (on other grounds) by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 129 (2008).

28 Bulletin Board/Community Display 28 Libraries are not required to open display or exhibit space to community groups. If libraries choose to open exhibit and display space to community groups, space should be provided on an equitable basis to all groups that request it, regardless of the beliefs or affiliations of individuals or groups requesting their use. Gay Guardian Newspaper v. Ohoopee Regional Library System, 235 F. Supp. 2d 1362, 1364 (S.D. Ga. 2002), aff'd sub nom. Gay Guardian Newspaper v. Ohoopee Reg'l, 90 F. App'x 386 (11th Cir. 2003).

29 Serving Food & Alcohol 29 No affirmative right to serve food and alcohol at public library events. Under state law, non-profit civic organization (e.g., Friends group) may obtain permit to sell alcohol to be consumed on the premises Some municipalities have ordinances governing where alcohol may be served and by whom. Check your jurisdiction. municode.com/library/fl Temporary events lasting one to three days hosted by a nonprofit civic organization where food is served or sold are exempt from licensing requirements. ents.html

30 Liability for Property Damage/Loss The public library can be liable for damage or loss of a patron s property if an employee s negligence caused the harm. Negligence is the failure to use reasonable care, which is the care that a reasonably careful person would use under like circumstances. Florida courts have held negligence may not be inferred from the mere happening of an accident alone. See e.g., Belden v. Lynch, 126 So.2d 578, 581 (Fla. 2d DCA 1961) 30 Contributory fault on the part of the claimant diminishes proportionately the amount awarded as damages for an injury attributable to the claimant's contributory fault, but does not bar recovery

31 Protesters & Petitioners There is a First Amendment right to engage in peaceful protests on streets, sidewalks, parks, etc. But, the government can impose time, place, and manner restrictions. 31 Individuals have the right to distribute literature, hold signs and collect petition signatures while on sidewalks or in front of government buildings as long as they do not disrupt other people or traffic. Any restrictions must be viewpoint neutral and be aimed at preventing the disruption of library service.

32 Music in the Library Statutory penalties for performing copyrighted music without permission range from $700-$30k per song. ASCAP, BMI, and SESAS sell license for public performances of music. Whether a local government s license includes its public libraries and all music played therein depends entirely on the language of the license. 32 See helpful article by New Hampshire librarian: web.archive.org/web/ / rians/gsl/2005/414using.html

33 Sole Source Procurement State law: If less than two responsive bids, proposals, or replies for commodity or contractual services purchases are received, the department or other agency may negotiate on the best terms and conditions (5). Most municipalities have procurement guides; often require prior approval for sole source procurement. Check your jurisdiction. 33