LEGAL QUESTIONS BY GEORGIA LIBRARIANSCase Studies

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.

ISSUE SPOTTING

The key to issue spotting is being able to identify which facts raise which issues.

Because of the complexity of the law, the elimination or addition of one fact can eliminate or add issues to a case thereby raising an entirely different rule of law.

Think of it as looking for red flags.

EMPLOYEES ON FMLA LEAVEComp Time, Accrued Leave &

Disability Benefits

WHICH FACTS RAISE WHICH ISSUES?

Full-time library employee will be going on maternity leave for 12 weeks. She currently has: 3 days comp time 1 week accrued annual leave 1 week accrued sick leave disability eligibility

How is she paid during the 12 weeks she is on leave and how much leave does she accrue while on leave?

APPLICABLE LAW: FAMILY & MEDICAL LEAVE ACT (FMLA)

FMLA leave is unpaid Even for FLSA salaried-exempt employees

Employer may require concurrent use of accrued leave

Comp time is NOT accrued leave Employee may use, but doesn’t count as FMLA

leave If receiving disability benefits, employee may

not use accrued leave No requirement for accrual of leave while on

FMLA, unless using accrued time---then subject to usual leave accrual policy

APPLYING LAW TO FACTS

First 3 days are comp time. FMLA clock begins on 4th day. If receiving disability for entire 12-week

period, cannot require use of accrued leave. If using accrued leave, will accrue additional

leave in accordance with library policy.

UNSUPERVISED CHILDRENPhysical contact

WHICH FACTS RAISE WHICH ISSUES?

8-year-old & 11-year old siblings left at the library by parent.

The children begin to fight.

How should library staff respond?What is the legal duty?What is the risk of liability?

APPLICABLE LAW

Arising under the law: none

Arising from societal norms: protect the vulnerable and helpless

State law claims for: Assault: causing a

person to reasonably apprehend a violent injury from an unlawful act

Battery: intentionally causing physical harm to another through any physical touching.

Duty Liability

CHANGE THE FACTS

A group of 12-year olds are loud and boisterous in the library.

Staff member approaches the group, grabs a child roughly by the arm and proceeds to spank the child.

Staff member tells the other children that they will each receive the same treatment if they continue to be loud in the library.

APPLYING LAW TO FACTS

Level of reasonableness has dramatically decreased

Higher likelihood of liability for the individual staff member

Library could be liable if there was knowledge of a dangerous propensity

ADAReasonable Modifications

WHICH FACTS RAISE WHICH ISSUES?

Library patron who claims to have AD/HD requests library to build an addition to include a private “quiet” room so she is able to concentrate on her reading.

APPLICABLE LAW: AMERICANS WITH DISABILITIES ACT

Title II of ADA requires a public entity to make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability.

Public entity is not required to employ any and all means to make services accessible to persons with disabilities but only to make “reasonable modifications” that would not fundamentally alter the nature of the service or activity of the public entity or impose an undue burden.

APPLYING LAW TO FACTS

Building an addition to provide a patron with a private reading room is not reasonable and would impose an undue burden on the library.

CHANGE THE FACTS

Library patron claims she has an anxiety disorder and requests that she be allowed to bring her dog into the library with her.

Legal analysis shifts to whether the person is a “qualified individual” and whether dog is a “service animal.”

HOW DOES ADA DEFINE “QUALIFIED INDIVIDUAL”

“an individual with a disability who, with or without reasonable modifications . . . or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2).

A person has a “disability” if she has (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such an impairment; or (3) is regarded as having such an impairment. 42 U.S.C. § 12102(1).

WHAT IS REQUIRED OF THE DOG?

A service animal includes “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” 28 C.F.R. § 35.104 (2011).

A public entity “may make two inquiries to determine whether an animal qualifies as a service animal: (1) whether the animal is required b/c of a disability and (2) what work or task the animal has been trained to perform.

A public entity shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal.” 28 C.F.R. § 35.136(f) (2011).

APPLYING LAW TO FACTS

If patron claims to have an impairment that limits her ability to perform a major life activity--driving, caring for self, thinking, sleeping, walking, lifting, interacting with others—

And she claims the dog is a “service animal”

The library’s denial of access to the dog could be a violation of Title II of the ADA.

DEBT COLLECTIONDocking Employee’s Pay

WHICH FACTS RAISE WHICH ISSUES?

Employee owes $100 in overdue fines Works 40 hours per week Paid bi-weekly at an hourly rate of $8.00

APPLICABLE LAW

No law in Georgia to prevent docking pay. FLSA establishes minimum wage

A violation if deduction brings wage below $7.25. Be aware of bankruptcy

If you are aware (or suspect) employee has declared bankruptcy—any deduction would violate automatic stay protection of the bankruptcy court.

APPLYING LAW TO FACTS

Gross pay for 80 hours = $640 Deduction of full debt brings amount to $540 Results in an hourly rate of $6.75, which is

less than minimum wage ($7.25).

INDEPENDENT CONTRACTOR OR EMPLOYEE?The Risks of Misclassification

WHICH FACTS RAISE WHICH ISSUES?

The library has a number of high school students who work as pages no more than 17 hours per week.

They are allowed to set their own hours during the library’s business hours.

They are paid bi-weekly along with all other employees.

May the library classify these workers as independent contractors?

APPLICABLE LAW: FAIR LABOR STANDARDS ACT & IRS TAX CODE

Control & supervision** Nature of skill Responsibility for equipment, supplies,

maintenance Method and form of payment/benefits Length of job commitment

APPLYING LAW TO FACTS

Pages are subject to a great deal of supervision and control by the library.

The nature of the skill for pages is not particularly specialized.

The library provides supplies and maintains equipment used by the pages.

Pages are paid on the same schedule as employees.

There is no specified time period for the job to end.

NOT INDEPENDENT CONTRACTORS!!!!

ADDITIONAL CASE STUDIES DISCUSSED IN WRITTEN MATERIALS

Religious holidays Rights granted by a power of attorney Requests for assistance with official forms Non-exempt employees volunteering w/

Friends Public forum—free materials

COMING SOON . . .

Non-profit status Age discrimination Monitoring access of minors Conflict/Nepotism on the board Employee background checks Requests to see surveillance tapes