The Public Library Helper

by Edward J. Elsner
Edward Elsner Library Consulting

Outlaws? We don't know any.

Chapter 1. Legal
Federal Laws and Regulations

Age Discrimination in Employment Act of 1973

Americans with Disabilities Act of 1990

Anti-Cybersquatting Consumer Protection Act

Bankruptcy Act
Children's Internet Protection Act

Civil Rights Acts of 1964 and 1991

COBRA of 1985

Copyright Law

Equal Employment Opportunity Act

Equal Employment Opportunity Commission

Equal Pay Act of 1963

Fair Credit Reporting Act

Fair Labor Standards Act

Family and Medical Leave Act of 1993

Health Insurance Portability and Accountability Act of 1996

Immigration Reform and Control Act of 1986

Internal Revenue Service

Library Services and Technology Act

Pregnancy Discrimination Act of 1978

Public Forum

Whistleblower Protection Act of 1998

State Laws and Regulations

At Will Employment

Civil Rights, State

Freedom of Information Act

Liability
Library Privacy Acts

Occupational Safety and Health Act

Open Meetings Act

Right to Work

Unemployment

Worker's Compensation

Hiring & Firing

Questions to Avoid on Applications and in Interviews

Application Forms

Checking on References

Firing an Employee

Notes

References

The first things you should know as the director of a small public library are the
laws that affect you. Not following applicable laws may invite a costly lawsuit.
Educate yourself and be careful to follow the laws, but don't worry about being
sued. If you're trying to follow the laws and you're making a good effort to do
what is right by everyone involved, you'll be fine. If there ever is a lawsuit,
your library's lawyer and liability insurance are capable of handling it.

Of the many laws affecting libraries, this book discusses the federal laws that
affect all of the libraries in the United States and some common state laws
used in most areas. The chapter ends with a brief discussion on hiring and firing
practices including questions to avoid in interviews to ensure you follow hiring
laws. Talk with an expert in one of the larger libraries or your state library
agency to determine exactly what state laws affect you. Look up and read
through the enabling statute in your state that allows for the creation of public
libraries. In the interest of saving time and avoiding confusion, look for a
summary written especially for librarians or library boards. Also be aware of
the statutes and regulations in your community. Get the book of ordinances
from the township or city you work in and make sure you at least skim through
it. Have a general idea of community laws and regulations. Know what you
should do if someone is drunk or disruptive in the library, you suspect law-
breaking behavior, or a staff member hits a patron. Talk with the police in your
area to get to know them and to find out how the library can help them do
their jobs. In many instances, libraries try to handle unruly patrons and
possible lawbreakers themselves, but these situations should be turned over to
local law-enforcement. It is their job to handle situations beyond normal
everyday library occurrences. Meet every year with your attorney to discuss
possible scenarios and how the library should handle them. Take policies and
procedures with you to your legal counsel so they are informed on library
issues. For a small fee you can double-check all policies before they are
implemented.

Remember, all laws exist in a political framework -- don't make every

disagreement, every difference of opinion, a fight. You will find that a lot of
things really aren't that important. You do need to decide what is important to
you in running the library: what is the minimum the library needs and what
level of funding is needed to provide the best service you can to the
community? Where should the library spend additional money if the funding
becomes available?

Pointers for handling criticism:

• Consider the reliability of the source.

• Encourage critics to tell you what they think.
• Understand the criticism completely; ask questions and gather all the
information.
• Always maintain control of your emotions; keep cool and uninterested.

Fight the good fights, but be willing to sit in a board meeting and not say
anything even if you disagree vehemently with what is being said. Even if it is
totally wrong and there's no way it would ever work, let it slide for a bit. There
is a very good chance that someone on the board will feel similarly to you and
say so. This is what should be going on in the board meeting: board members
working collectively for the good of the library, discussing every side, and
deciding what is best for the library. You should be able to sit back and let the
board discuss things. If you are asked your opinion, by all means tell them. If
no one on the board speaks up against a horrid idea, do so.
So, what are the good fights? I believe they include fighting to preserve the
library as an open place to exchange ideas freely, without censorship, and to
let everyone celebrate the diversity of the community that you live in. Some
communities have Christian Fiction collections while others have Judaica
collections. Some communities will have Islamic collections while others will
have a large section of African-American Fiction. Hindu, Buddhism, Shinto,
Hispanic, Italian, etc. Get to know your community and how the library can
best serve it. Reach out to your unique community while always reminding it
there is a bigger world out there.

Federal Laws and Regulations

Some regulations must be posted where all employees can easily see them. Use
the Department of Labor's Poster Advisor at
http://www.dol.gov/elaws/asp/posters/state.asp to determine necessary
postings for your state. Complete information on most federal laws and
regulations is available at http://www.dol.gov/. You can read the overviews
provided by the University of Alabama at http://eop.ua.edu/summary.html.
There is also a wealth of information from http://nonprofitexpert.com/.

Age Discrimination in Employment Act of 1973

ADEA protects individuals who are 40 years or over, whether they be

prospective or existing employees, from age-based discrimination regarding
terms, conditions, and privileges of employment. ADEA applies to labor
organizations and employment agencies along with employers who have more
than 20 employees.

Americans with Disabilities Act of 1990

The Americans with Disabilities Act protects persons who have a physical or
mental impairment that substantially limits one or more major life activities,
have a record of such an impairment, and are regarded as having such an
impairment. Title I and Title V prohibit employment discrimination against
qualified individuals with disabilities. ADA provides people with disabilities
equal access to library facilities, information, computer technology, programs,
services, and other resources through reasonable accommodation, non-
discrimination, and building requirements. ADA prohibits libraries from refusing
to provide disabled individuals with an equal opportunity to participate in, or
benefit from, library programs or services simply because the person has a
disability. Invite individuals, whom you or other staff members know, to
evaluate the library and the ease with which they can access various areas and
services offered. Test every area and service for accessibility, especially
checking anything added, modified, or changed. Any new construction or
renovations and alterations made to an existing facility must meet the
Americans with Disabilities accessibility guidelines at a minimum. The
guidelines are available at http://www.access-board.gov/ada-aba/final.htm.
Modifications to existing facilities that are readily achievable must be initiated,
such as adding a ramp or push-button door opener. See more information at
http://www.ala.org/ala/ascla/asclaissues/libraryservices.htm.

Anti-Cybersquatting Consumer Protection Act

Bad faith abusive registering of Internet domain names is prohibited. If

someone else registers your library name, or similar, and attempts to charge
you for it or uses it for content or services that sully the name of the library,
you can take action in court.

Bankruptcy Act

This act prohibits discrimination against anyone who has declared bankruptcy.
Beware of this should you ever find out an applicant or employee filed for
bankruptcy.

Children's Internet Protection Act

CIPA requires Internet filtering or blocking (a.k.a. technological protection

measures) on ALL library computers, including staff machines, if the library
receives E-rate discounts to help pay for access, service, or internal
connections and wiring or if the library receives LSTA money to purchase
computers for accessing the Internet or to pay for links, modems, switches,
etc. used for access. The filtering or blocking must stop access to visual
depictions that are obscene and child pornography. When the patron is under
17, you must attempt to stop access to visual depictions deemed harmful to
minors. What is obscene or harmful to minors can only be determined in a local
court of law applying community standards. The technological protection
measure must be turned off if an adult ever asks for full access on a computer
and then turned back on when they are done. Certification is accomplished by
filling in the appropriate section of your USF form when applying for an E-rate
discount. If you are only receiving LSTA money, ask when the grant is received
about how to certify compliance with CIPA. See more information at
http://www.ala.org/cipa/ and http://www.llrx.com/features/cipabiblio.htm.

Civil Rights Acts of 1964 and 1991

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination
based on race, color, religion, sex, or national origin. It also prohibits sexual
harassment and sex discrimination on the basis of pregnancy. The Act of 1991
provides monetary damages in cases of intentional discrimination.

Consolidated Omnibus Reconciliation Act of 1985

COBRA requires employers with 20 or more employees to provide for

continuation of health insurance if an employee is terminated, laid-off, or has
hours reduced so that they no longer qualify for health coverage. The
employee, who must pay for the cost, can choose to continue health care for
themselves and any dependents for up to 18 months.

Copyright Law

The first sale doctrine, Section 109 of the Copyright Act, is the foundation for
public libraries. First sale doctrine states that once an item is purchased, the
owner may then lend or resell it.

Libraries, as non-profit institutions, may read books and poems or perform

music without licensing if there is no "purpose of direct or indirect commercial
advantage" and there is no "payment to any performers, promoters, or
organizers if:

• (a) there is no direct or indirect admission or

• (b) the proceeds are used exclusively for educational, religious, or
charitable purposes,

except if the copyright owner (having been given notice) objects seven days in
advance of the performance."1 This also applies to one time performances
broadcast over cable TV, broadcast TV, or radio stations. You may also turn on a
TV or radio, if you're receiving a general broadcast transmission, for everyone
to enjoy. DVDs and videotapes are another issue and public performance rights,
copyright owner permission, or a general license is required before showing
them in the library.
Patrons must adhere to U.S. Copyright Law when using library materials, even
after they check them out, and equipment (copier, fax, computers, etc.). Post
whatever copyright notice you use next to every public printer, as well as
computer and photocopier. Every place people can break copyright needs to
have a notice posted there. The St. Paul Public Library has a sample notice
available at http://www.sppl.org/userguide.cfm?id=52. Section 107 of the
Copyright Revision Act discusses the three fair use factors:

• the purpose and character of the use including whether such use is of a
commercial nature or is for nonprofit educational purposes,
• the nature of the copyrighted work, the amount of the portion used in
relation to the copyrighted work as a whole, and
• the effect of the use on the potential market for or value of the
copyrighted work.

Libraries may make copies for interlibrary loan, preservation, and

replacements according to Section 108 of Copyright Law. Any copyright notice
needs to be reproduced somewhere in the copy even if the copyright notice
only appears at the beginning of the book and you copy page 27 because it has
local history information you want to preserve in your library, you need to
mention on the copy that it is the copyright of someone else. Under Section
108(c) you may make up to three copies of a published work or an unpublished
one that is damaged, deteriorating, lost, or stolen or if the existing format in
which it is stored becomes obsolete. You must determine that you cannot find
UNUSED replacement copies at a fair price. Libraries, under 108(d), can make
copies of an article, or a small portion of a work, for interlibrary loan or for
patrons. While you can copy books and articles, you cannot copy video tape
cassettes; audiovisual works; musical works; pictorial, graphic, or sculptural
works; or a motion picture for interlibrary loan. Digital copies may also be
made, but under the Digital Millennium Copyright Act of 1998 they are only to
be used inside the library.

Equal Employment Opportunity Act

EEOA prohibits discrimination against minorities based on poor credit ratings.

Equal Employment Opportunity Commission

EEOC enforces all discrimination laws. EEOC also provides oversight and
coordination of all federal equal employment opportunity regulations,
practices, and policies. These regulations currently include Age Discrimination
in Employment Act, American with Disabilities Act, Civil Rights Acts, and Equal
Pay Act. For complete information visit the EEOC website at
http://www.eeoc.gov/.

It is illegal to discriminate in any aspect of employment, including:

• hiring and firing

• compensation, assignment, or classification of employees
• transfer, promotion, layoff, or recall
• job advertisements
• recruitment
• testing (must be fair & job related)
• use of company facilities
• training and apprenticeship programs
• fringe benefits
• pay, retirement plans, and disability leave
• other terms and conditions of employment

There are three legal theories for establishing unlawful discrimination:

disparate treatment, intentional discrimination, and adverse impact. Disparate
treatment is where similarly situated individuals are treated differently.
Intentional discrimination occurs if the employer was predisposed to
discriminate against a protected group and acted on that predisposition in
making the employment decision, i.e. a supervisor makes offensive racial
comments and indicates he wants to get rid of all of a certain ethnic group.
Adverse impact addresses policies affecting a protected group, i.e. an
employer requires all employees be at least 5' 8" tall so that fewer women
qualify than men.

Equal Pay Act of 1963

EPA protects men and women who perform substantially equal work in the same
establishment and requires no wage variation by the sex of the worker.

Fair Credit Reporting Act

FCRA regulates credit reports, criminal background reports, motor vehicle

reports, driving records, and reference and worker compensation history
reports. Always obtain written permission from the applicant before performing
a background check. If you do not hire someone because of the report, you
must provide the applicant or employee a copy of both the report and their
legal rights regarding the report and your action.
Fair Labor Standards Act

FLSA applies to local government agencies, including libraries, but not

generally to non-profit organizations. FLSA provides for a minimum wage of
$5.15/hr. Employees under 20 may be paid as little as $4.25/hr. for the first 90
days after employment. Student learners, apprentices, and workers with
disabilities may also be paid less. Contact the Department of Labor,
http://www.dol.gov/, for a special certificate. After working for 40 hours in a
work week, overtime pay must be given at 1.5 times the worker's normal wage.
Executive, administrative, and professional employees (i.e. librarians) are
exempt but they must be paid on a salary of at least $455 a week where they
are paid the same for any week in which they do any work without regard to
the number of days or hours worked. Local delivery employees paid on
approved trip rate plans are also exempt from overtime. Employees 14 or 15
years of age may work no more than 3 hours on a school day and 18 hours in a
school week -- 8 hours a day and 40 hours a week when school is out. Their
work hours must be between 7 AM and 7 PM --until 9 PM June 1st through Labor
Day.

Each employee requires a record be kept that includes:

• personal information, including employee's name, home address,

occupation, sex, and birth date if under 19 years of age;
• hour and day when workweek begins;
• total hours worked each workday and each workweek;
• total daily or weekly straight-time earnings;
• regular hourly pay rate for any week when overtime is worked;
• total overtime pay for the workweek;
• deductions from or additions to wages;
• total wages paid each pay period; and
• date of payment and pay period covered.

Federal law requires no breaks, but state law may. If breaks are offered, those
from 5 to 20 minutes must be paid by federal law while meal periods lasting 30
minutes or more do not need to be paid as long as the employee is completely
relieved of their duties during this time.
http://www.dol.gov/dol/topic/workhours/breaks.htm provides links to the
state labor offices. Bureau of Labor Statistics defines part-time employment as
working less than 35 hours a week.

Family and Medical Leave Act of 1993

FMLA applies to public employers with at least 50 employees and provides a
means for employees to balance their work and family life through an
entitlement of up to 12 weeks of job-protected, unpaid leave during any 12-
month period. The employee must provide 30 days notice if the leave is
foreseen and have worked for at least one year and for at least 1,250 hours in
the previous 12 months. Unpaid leave must be granted to care for the
employee's child whether by birth, adoption or foster placement; to care for a
spouse, son, daughter, or parent with a serious health condition; or if the
employee has a serious health condition making them unable to perform their
job. Any health coverage is protected and maintained, by the employer, for the
duration of the leave. Upon returning, the employee must receive their original
or equivalent position, pay, and benefits without losing any accrued benefits.
The employer can require medical certification and, at their expense, require
second or third opinions when taking FMLA leave.

Health Insurance Portability and Accountability Act of 1996

HIPAA limits exclusions for preexisting medical conditions to 12 months and

provides for certificates of prior coverage to reduce or eliminate the exclusion
period when switching insurers. HIPAA provides new rights that allow
individuals to enroll for health coverage when they lose other health coverage,
get married, or add a dependent. HIPAA guarantees the availability of coverage
for small employers and provides protections for renewing coverage.

Immigration Reform and Control Act of 1986

IRCA requires employers to assure that all employees hired are legally
authorized to work in the U.S. All employers are required to complete and
maintain an Employment Eligibility Verification (I-9) Form within three business
days of hiring an employee. The I-9 form must be correctly filled out and kept
on file the longer of 3 years or 1 year after the employee ceases to work for
you. IRCA also prohibits discrimination on the basis of national origin or
citizenship for those authorized to work in the United States.

Internal Revenue Service

IRS allows income deductions for donations to charitable organizations, the

public library being one of the most important ones. Federal Income Tax 1040
Schedule A states that individuals may deduct contributions or gifts they gave
to religious, charitable, educational, scientific, or literary organizations.
Examples of these organizations are federal, state, and local governments if
the gifts are solely for public purposes, i.e. public libraries. Libraries can not
put a value to any gift.

Library Services and Technology Act

LSTA contracts require abiding by several additional federal laws and

regulations. Consult with the organization providing the funding.

Pregnancy Discrimination Act of 1978

PDA states that women affected by pregnancy, childbirth, or related conditions

must be treated the same as persons not affected for all employment-related
purposes. PDA applies to employers with 15 or more employees.

Public Forum

Any meeting room, bulletin board, or display case open to the public is a public
forum. Public libraries may not restrict usage on the basis of content or
viewpoint, i.e. religious uses. Libraries may restrict narrow groups, like
political parties, from using meeting rooms unless the meeting is open to
everyone for participation and discussion. Public libraries may place limits on
the number of times and the hours that groups can use meeting rooms or
displays. Speech reasonably expected to provoke violence can be limited, but
not the discussion of violence. Groups that damage the meeting room or library
property may be banned based on their past history, no matter their content or
viewpoint. Rooms, boards, and display areas used only by the library are not
public forums.

Whistleblower Protection Act of 1989

WPA creates a clear remedy for all cases of retaliation or discrimination against
whistleblowers that raise or report safety or other concerns. Do not change
how you treat employees who criticize you or the library.

State Laws and Regulations

The Law Librarian's Society of Washington, D.C. maintains links to all of the
state administrative codes, laws, and regulations at
http://www.llsdc.org/sourcebook/state-leg.htm. Start with your state library
agency, network, or commission since they often have a compilation of state
laws affecting libraries. The Library of Congress maintains a page,
http://www.loc.gov/global/library/statelib.html, with links to all of the state
library organizations.

At Will Employment

Most of your employment will be at will, meaning that either the employer or
the employee may terminate the relationship at any time, for any reason or
even for no reason, without legal liability. While there is no formal contract in
at will employment, many employers have a signed form stating this
information and requesting a two week or longer notification. This ensure both
parties understand the employment arrangement and allows for counteracting
claims of verbal or implied contracts in a court of law.

Civil Rights, State

State Civil Rights Agencies are listed on FindLaw at

http://employment.findlaw.com/employment/employment-employee-
resources/state-civil-rights-agencies.html. In addition to the groups protected
by federal law, state statutes often provide protection for others.

Freedom of Information Act

All persons are entitled to full and complete information regarding the affairs
of government and the official acts of those who represent them as public
officials and public employees. There is a Federal Freedom of Information Act
(FOIA) applying to federal government and organizations. Public libraries are
subject to the different state versions of this law and need to be familiar with
them. Public records include any writing prepared, owned, used, in the
possession of, or retained by a public body in the performance of an official
function. An employee, usually the director, should be designated the Freedom
of Information Officer (FOIO) and be responsible for replying, within the law's
time limits, to any requests. The FOIO is required to keep a copy of all written
requests on file for at least a year. Those requesting information are not
entitled to compilations or analyses, all that must be provided is the basic
information and raw data. Many things we would consider private can actually
be obtained through these laws, such as salaries, wages and personnel records.
For this reason, all medical information including doctor's notes must be kept
separate from an employee's personnel file. It is best to consult a lawyer
before releasing any personnel information. You may charge fees for the staff
time, using the lowest hourly wage capable, and actual copying.

Stay in compliance with state privacy laws regarding library patrons at all
times. Library patron records, even simple lists of patrons, are usually exempt
under an aptly named Library Privacy Act or similar state legislation.

Liability

Be sure to have proper property and liability insurance for your library. "Library
boards should meet annually with an insurance professional to audit applicable
insurance policies and ensure that coverage is in place for cyberspace activities
and other intellectual property, advertising, and publishing exposures, and to
verify that there are not any gaps in coverage."2

There is little chance of librarian's or libraries being successfully sued for

malpractice of negligence during normal operation. Materials with libelous,
dangerous, incorrect, or misleading information are not the responsibility of
the library even if housed in their collection. Providing advice on law,
medicine, taxes, and other areas outside an employee's training is against the
law. We can point people to the correct information or even point out things
they have overlooked.

There is no duty to wait with children after hours or offer aid to someone
outside the library. When you do help, you must exercise due care. Your
liability actually increases when you wait with a child or help someone. It's a
crazy country.

Your library may want to consider errors and omissions insurance too. E&O
insurance policies "typically provide coverage for defined damages and
associated defense costs that a policyholder becomes legally obligated to pay
because of a negligent error or omission in providing certain defined insured
services to others."3

Library Privacy Acts

State privacy laws regarding library records are listed at

http://www.ala.org/oif/stateprivacylaws. If law enforcement or others with
court orders arrive, always tell them you need to consult with your attorney
first. Inform staff of the applicable law, or exception to the state open records
law, that establishes library privacy in your state. Most states simply prohibit
releasing any patron information to someone other than that patron. With the
patrons consent, records can usually be released and materials picked up by
another person. Have forms available for any consent issues in your state. Some
library privacy acts do not even allow the library to tell a parent or guardian
what their child has out. In this situation, parents and guardians always have
the opportunity of not allowing their child a library card or asking their child to
tell them what they have out.

Your policy may always protect more information than required by law.
Regularly clear the cache, history, bookmarks, and cookies from web browsing,
ideally between each patron to use the computer. Ask your Internet service
provider, ISP, what records they keep of the Internet traffic flowing through
their computers. Shred any sign up lists as soon as the statistics have been
taken from them, ideally nightly. Before implementing a privacy policy, have it
reviewed by your attorney. Librarian observations generally are not covered by
library privacy laws and can be shared at the discretion of the staff member.

Occupational Safety and Health Act

OSHA assures a safe work environment for employees. OSHA does not cover
state and local government employees unless that state sets up its own
program. States with their own OSHA programs are Alaska, Arizona, California,
Connecticut, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota,
Nevada, New Mexico, New Jersey, New York, North Carolina, Oregon, Puerto
Rico, South Carolina, Tennessee, Utah, Vermont, Virgin Islands, Virginia,
Washington, and Wyoming. Find their policies online through
http://www.osha.gov/fso/osp/faq.html#oshaprogram. Other states may still
choose to provide workplace safety and health protection for government
employees. Check with your state if it is not listed above.

Open Meetings Act

Public libraries are responsible for adhering to their state's open meetings
provisions. In all cases, what is stipulated is the minimum the library and its
board must comply with and they may always let the public know more of what
happens. Meeting notices must contain the name and contact information for
the public body, be posted at the principal office and at any parent
organization, and contain the date, time, and location of the meeting. The
notice usually must be posted at least two days prior to the meeting but varies
by state with some requiring meetings for the entire fiscal year be posted near
the start of that year.

Public meetings must be held in a public building with no registration required

to attend. Meetings may be tape recorded, videotaped, or broadcast live by
anyone attending. A time during the meeting needs to be provided for any
public comment and the board can require a person to give their personal
information before speaking. Board members should abstain from voting on the
minutes of any meeting where they were not personally present. Amendments
or changes to the agenda set for a specific meeting must be voted on before
they can take effect. The board cannot discuss or take action on any item of
business not listed on the agenda. A public body may not meet informally prior
to a public meeting to determine what will be decided at the meeting, but
social gatherings are not subject to the act, including conferences and
workshops the entire board may be attending.

Most open meetings acts require that minutes be kept at every meeting
including the date, time, place, members of the board present and absent, and
any decisions made. Minutes must be made available to the public at the
library. Until approved, usually at the next board meeting, the proposed
minutes shall be available. There is often a deadline of approximately a week
and half after the meeting for these minutes to be released. The same is true
after the minutes are approved at the next board meeting.

Right to Work

Right to work states ensure that employees cannot be forced to join unions in
order to qualify for or continue employment.

Unemployment

State acts provide for the payment of unemployment benefits to eligible

claimants. Unemployment normally provides workers, who lost their jobs
through no fault of their own, with monetary payments for a given time or until
they find a new job. This financial support allows employees to take the time
to find an equivalent job without financial stress. The state law is based on
federal standards and requires approval from the Secretary of Labor. Most
nonprofit organizations and government entities can choose to not pay state
unemployment insurance contributions and simply reimburse the state for any
claims made by former employees.
Worker's Compensation

Worker's compensation is required by law in all 50 states. See "What You Need
to Know about Worker's Compensation Insurance" made available online by
AllBusiness at http://www.allbusiness.com/articles/content/3491.asp. Worker's
compensation ensures employees injured or disabled on the job of monetary
compensation, often 2/3 of their normal monthly salary plus any medical or job
retraining expenses, without having to litigate. Worker's comp provides benefits
to dependents of workers killed by accidents or illnesses at work. Problems
caused willfully by the employee or through intoxication are not covered. Even
if your state does not require the purchase of worker's compensation insurance,
it is still highly recommended you have this insurance.

Hiring & Firing

Always watch your hiring practices. Requiring only certain applicants to

perform tests or receive a medical exam is asking to be sued and signing on ten
white females in a row is never a good practice. Any size employer can be sued
based on employment patterns or for not employing enough minorities or
women. Recruit from the widest practical population by posting your open
positions in both newspapers and on the Internet. To increase diversity in your
pool, place additional ads in minority papers or ask for referrals from agencies
working with minority groups.

Job interview and application questions must be related to the job and may not
be asked for the purpose of discriminating on the basis of race, color, religion,
sex, national origin, birthplace, age, or physical disability. "Don't ask questions
or qualifications of one group (women, racial minorities, disabled, veterans,
etc.) that you wouldn't ask the majority group (such as white males).
Practically speaking, ask the same questions of all applicants; if in doubt, don't
ask."4 Applicants under 18 should be informed of the labor laws for minors and
then asked if they can work the schedule you need. People may not be limited
in hiring, terms of employment, training, promotion, advancement, firing, or
working conditions, because of age for persons over 40, disability, race or color,
national origin, religion, sex, and pregnancy. Employees are also protected
from discharge or demotion for jury service, filing workers compensation or
OSHA claims, or testifying in court. Civil-service rules governing employees
have to be observed: these employees may not be demoted without cause,
transfers not involving reduced salaries or reduced duties are permissible, and
any testing must be objective and based on the job description.

Questions to Avoid on Applications and in Interviews

 • "Are you a U.S. citizen?; Where were you/your parents born?; What is
your "native tongue?"
• How old are you?; When did you graduate from college?; What is your
birthday?
• What's your marital status?; Who do you live with?; Do you plan to have a
family?; When?; How many kids do you have?; What are your child care
arrangements?"5
• Will your family object to travel?; What is the occupation of your spouse,
parents, etc.?
• What is your religious affiliation?; Do you attend church?
• What is your view on civil rights, religion, feminism, etc.?
• "To what clubs or social organizations do you belong?
• How tall are you?; How much do you weigh?
• Do you have any disabilities?; Please complete the following medical
history.; Have you had any recent or past illnesses or operations? If yes,
list and give dates.; What was the date of your last physical exam?;
How's your family's health?; When did you lose your eyesight?"6
• Have you ever been hospitalized?; Have you ever been treated for any
mental condition?; Are you taking any medication?; Have you ever been
treated for alcoholism or other addiction?
• Is there any health-related reason you may not be able to perform the
job?; How many absences have you had from work?
• "Have you ever been arrested?
• If you've been in the military, were you honorably discharged?; In what
branch of the Armed Forces did you serve?"7

Application Forms

Ask if they can perform the job functions or tasks with or without reasonable
accommodations and for permission to check with their current employer and
other references. Other questions good for an application form are: "To enable
us to check on your work and education record, is any additional information
necessary relative to change of name, use of an assumed name or a nickname?
If yes, please explain. If hired, can you show proof of age? Are you over
eighteen years of age? If under eighteen, can you, after employment, submit a
work permit? Can you, after employment, submit verification of your legal right
to work in the United States? Have you ever been convicted of a felony (time
period), or a misdemeanor, which resulted in imprisonment? A conviction will
not necessarily disqualify you for the job. Please list job-related organizations,
clubs, professional societies, or other associations to which you belong -- you
may omit those which indicate your race, religious creed, color, national origin,
ancestry, sex, or age."8 You can also ask for their place of residence, state that
a job offer may be made contingent on the applicant passing a job-related
physical exam, and ask if they are available to work during any of your regular
hours (and if not, when they are available).

Checking on References

Limit inquiries to applicants you plan to hire and avoid the human resources
office. Ask "Would you hire this person again?" Assess the applicant's ability to
do the job, get along with coworkers and their supervisor, and attendance and
punctuality. Only ask about information relevant to your open position and
treat all information received as confidential. Work to collect all relevant
information on a candidate before making a job offer. If you have suspicions,
probe deeper. "Be especially careful when potentially involved with at-risk
employment settings, safety-sensitive ones, or caregiver or custodial
situations."9 Wise to do police background checks on any person who is to work
in the children's area.

Firing an Employee

Treat all employees the same. Constructive discharge, where you make an
employee's job harder or difficult so they quit, is against the law. Do not allow
anyone to get back on their computer after being fired since they could destroy
your entire system, but let them gather any personal items and make sure you
retrieve all company property. If they ask whether they should quit instead of
being fired, do not advise them. Simply explain about COBRA and
unemployment insurance and let the employee know you will only verify the
dates and positions they worked if you are contacted for a reference. Mail their
final paychecks. The employee's dismissal is a private matter and you should
never talk about firing them.

DISCLAIMER

This chapter is intended as a guide to compliance with the various laws

affecting small public libraries. While there are a number of fairly specific
references, it is not intended to be all inclusive. Consult with an attorney
before making any legal decisions or entering areas that are unclear.

Notes
 1. Janis H. Bruwelheide, Copyright Primer for Librarians and Educators,
Second Edition (Chicago: American Library Association; Washington,
D.C.: National Education Association, 1995): 40-41.
2. Michelle Worrall Tilton, "Transferring risk through appropriate liability
insurance," Library Administration & Management 15:1 (Winter 2001): 30-
38.
3. Ibid.
4. Thyra K. Russell, "Interviewing," Practical Help for New Supervisors,
Third Edition. (Chicago: American Library Association, 1997): 9.
5. Illegal interview questions, January 1, 2001, available at
http://www.usatoday.com/careers/resources/interviewillegal.htm/.
Accessed 1 October 2004.
6. Ibid.
7. Ibid.
8. Guidelines for Pre-Employment Interview Questions, 2003, available at
http://www.msubillings.edu/careers/PDF/pre-empguidelines03.pdf/.
Accessed 1 October 2004.
9. Mary Minow and Tomas A. Lipinski, Library's Legal Answer Book (Chicago:
American Library Association, 2003): 286.

References

• http://www.google.com/. Search for the name of the law or act as a

phrase, in quotation marks, followed by summary, i.e. "Fair Labor
Standards Act" summary. This usually will bring up a law firm or law
school posting of a summary of the bill and its ramifications. If you need
advice, contact a lawyer.
• Bruwelheide, Janis H. Copyright Primer for Librarians and Educators,
Second Edition. Chicago: American Library Association; Washington,
D.C.: National Education Association, 1995.
• Minow, Mary and Tomas A. Lipinski. Library's Legal Answer Book. Chicago:
American Library Association, 2003.
• Torrans, Lee Ann. Law and Libraries: The Public Library. Westport,
Conn.: Libraries Unlimited, 2004.

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© Edward J. Elsner, 2005
Edward Elsner Library Consulting