New changes regarding the administration of Indiana librarian certification

Indiana law has required some form of librarian certification program for many years. The belief is that individuals who go to libraries for assistance should receive quality guidance and information. The way to assure this is to require some basic minimum requirements for Indiana librarians.

The Indiana State Library administers the librarian certification program for Indiana and has historically relied on technology and software provided by the Professional Licensing Agency to make this happen. For the past 13 years, the State Library has contracted with the Professional Licensing Agency to provide a number of services including maintaining our database of certified librarians, processing online renewals, and mailing out renewal reminders, audit notices, and certificates for us. As of July 1, 2021, the State Library moved all of those functions in-house.

Our new system is designed specifically for Indiana librarian certification. Since it no longer needs to meet the demands of many different state agencies, each with different requirements, our new certification portal is simpler, more streamlined, and we think it is more intuitive. Currently, the new portal only replaces the functions that the Professional Licensing Agency had been performing for us, but over the long term we expect to expand the number of services and payments that can be handled online.

Things that have changed with the new portal:

  • We are using a different credit card service to process online payments. The new service charges lower fees and those savings are passed on to the librarians so they spend less on their transactions than before.
  • Correspondence with certified librarians now takes place almost entirely by email. In the past most of our communications have been printed and sent by the Professional Licensing Agency using the U.S. Postal Service. Renewal reminders and random audit notices are now sent by email.
  • In the new portal, librarians are able to print out a digital permit or certificate as soon as it has been approved.
  • Because our new certification portal has been designed in house, it bears some similarity to other services administered by the State Library, such as InfoExpress or Indiana Legacy. We think this makes the portal easier to learn and more intuitive to use.
  • The State Library never asks for librarian Social Security numbers or birth dates. However, recent changes to the login screen for the Professional Licensing Agency’s system made it seem like we were asking for that information from librarians as an option for logging into their account. That will never happen in our new portal.
  • The public look up page for librarians will also take place through the new certification portal.
  • Librarians will no longer be required to create an Access Indiana account to log into their record.
  • The State Library is able to troubleshoot all technical issues in house which leads to faster resolution in the event an issue arises.

The State Library is very excited about the new librarian certification portal. It is an exciting new tool to help us provide services to librarians who are certified, those who wish to become certified and the public who may wish to look up a librarian to verify certification. For more information about the certification portal or certification for Indiana librarians, click here. You can check out the new certification portal itself by clicking here.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library.

Prayer in public meetings

Can your local public library begin its public meetings with prayer? Would doing so put the library at risk of a lawsuit based on an alleged violation of the Constitution’s Establishment Clause?

Image courtesy of Pixabay

When government is involved in a religious challenge, the court may put the challenge through a three-part test known as the Lemon test. Lemon v. Kurtzman was a court case in which the U.S. Supreme Court created a test to analyze if government was engaged in impermissible entanglement in religion in violation of the establishment clause in the First Amendment to the U.S. Constitution. Government typically can be involved in activity involving religion under the following circumstances:

  • The primary purpose of the action is secular,
  • The action neither promotes nor inhibits religion, and
  • There is no excessive entanglement between church and state.

It would seem that government sponsored prayer before meetings would not pass the Lemon test and would thus violate the establishment clause. However, when it comes to prayer before government meetings, the Court appears to be more lenient. Per the Court opinions, this seems to be primarily due to the longstanding history – dating back to the drafters of the constitution – of leading legislative sessions with prayer.

A very divided U.S. Supreme Court, via 5/4 decision, found local government meeting prayer permissible in the following situation:

  • A town board invited religious leaders in the community the town served to have a turn saying the opening prayer.
  • All the religious leaders were volunteers, none were paid.
  • Even though most of the prayer leaders were Christian, it was okay because the community had predominantly Christian churches. The Court held that the town did not have to go outside of its boundaries to get prayer leaders from other religions.
  • Anyone was allowed to volunteer to do the prayer, including laypeople and atheists. The board allowed a Jewish layman and a Wiccan priestess who had read press reports about the controversy to have a turn at leading the opening prayer.
  • The town board did not interfere with contents of the prayers and let the prayer giver say his/her own prayer according to his/her own belief system. Prayers were not reviewed or vetted in advance.
  • While a number of the prayers did invoke the name of Jesus, the Heavenly Father or the Holy Spirit, they also invoked universal themes as by celebrating the changing seasons or calling for a spirit of cooperation among town leaders. They had both a civic and religious theme.
  • Over time, the prayers did not denigrate any religions nor proselytize/promote one religion over another.
  • Meeting attendees were not compelled to engage in religious observance of the prayer. Prayer was for the board members not the attendees.

With the ruling being so split on such a fact specific situation, it is very possible that a finding of an establishment clause violation could occur if any of the above facts were different. A couple federal courts in other circuits – not Indiana’s, which is the 7th circuit – found that prayer incorporated into government meetings was a violation of the establishment clause in slightly different scenarios.

  • A 6th circuit case found it unconstitutional when the county commissioners began their meetings with prayer when the prayer was always led by one of the commissioners so they could control the message and all the commissioners were Christians. This gave the impression of government sponsored endorsement of the Christian religion. Additionally, they called for the audience to stand and bow their heads/assume a reverent position which made at least one of the attendees uncomfortable, as if he was being coerced to participate in something he didn’t believe in. The court found that the prayer time was unconstitutionally coercive because a single resident was singled out for opprobrium when he objected and there was evidence suggesting that board allocated benefits and burdens based on participation in prayer.
  • A 4th circuit court found it unconstitutional when commissioners said the prayer because prayer by board members was government speech, not individual speech. The prayers did not fit within the legislative prayer exception because the practice discriminated against and disfavored religious minorities since all faiths but those of the five elected commissioners were excluded. The prayers constituted unconstitutional coercion because the board maintained complete control over the content of the prayers and the religious views excluded all but those represented by the five commissioners. The court also stated that indirect coercion may violate the establishment clause of the First Amendment when government orchestrates the performance of a formal religious exercise in a way that practically obliges the involvement of non-participants. The commissioners were also said to have made public comments indicating frustration and disapproval of minority religious views.

Based on the above cases, one might conclude that under very narrow and particular conditions, it might be ok to have community religious leaders lead a library board meeting in prayer but not an actual board member personally. However, libraries should consult with their own legal counsel before engaging in such a practice to ensure the way they are instituting the practice is constitutional. One option to consider is the board could hold a moment of silence before each meeting that people could use to say their own prayer to themselves if they so desire.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library. For more information, email Sylvia.

Merry Christmas from your public library… but wait, can they say that?

This is the time of year for all sorts of celebrations. The most widely-recognized holidays in America during this time of year include Hanukkah, Kwanzaa and Christmas.

Hanukkah is a Jewish festival that celebrates the rededication of the Second Temple of Jerusalem after a successful 165 B.C. revolt against a king who had outlawed the Jewish religion and its practices, and who decreed only Greek gods could be worshiped in the Temple. Hanukkah is celebrated with certain foods, games, gifts and the lighting of a candle for each day of the eight-day celebration. The symbol most widely associated with Hanukkah is the hanukkiah, a candle holder that holds nine candles, one for each of the eight-day celebration and a “helper-candle” which is used to light the others. It is more commonly referenced as a menorah.

Kwanzaa is a seven-day festival that celebrates African and African American culture. Each day of the celebration is dedicated to one of seven principles: unity, self-determination, collective responsibility, cooperative economics, purpose, creativity and faith. It is not intended to be a political or religious holiday. Kwanzaa is celebrated by festivities that include decorating, singing, dancing, gifts and a large feast on the last day. The symbol most widely recognized in relation to Kwanzaa is the kinara, a candle holder that holds seven candles, one to be lit on each day of the celebration.

Christmas is traditionally a Christian festival that celebrates the birth of Jesus, a person most Christians believe is the son of God. However, in more recent years, Christmas has become a more secular holiday celebrated by both Christians and non-Christians with festive decorations, singing, parties and the exchange of gifts. Symbols most commonly associated with Christmas are the Christmas tree, Santa Claus and nativity scenes depicting baby Jesus.

Undoubtedly, the holiday most obviously on display right now is Christmas. You can hardly leave your house without evidence of the upcoming Christmas holiday on display all around you. Many homes and businesses are decorated with pretty lights, wreaths, garlands and Christmas trees. Many cashiers and salespeople are wishing us Merry Christmas as we conclude our business with them. With Christmas being so popular, what could possibly be the issue with our local public library joining in the festivities?

The dilemma lies in the fact that Christmas is still considered by many in our country to be a religious Christian holiday. The establishment clause – found in the first amendment of the U.S. Constitution – prohibits government from making any law establishing a religion. It is widely established through numerous court cases that the establishment clause further prohibits government actions that promote, endorse or favor one religion over another. Thus, many have argued that taxpayer-funded government entities should not celebrate or decorate for Christmas because it promotes Christianity. Several U.S. Supreme Court cases have discussed the issue of Christmas displays on government property and the result appears to be that government can recognize and even decorate for Christmas, as long as it is done primarily from a secular perspective and not in a manner that promotes or endorses religion.

In the 1971 U.S. Supreme Court case of Lemon v. Kurtzman (403 U.S. 602), the Court established a three-part test to analyze if government behavior violates the establishment clause. In using the “Lemon” test to analyze a holiday display, the Court would look at (1) whether the primary purpose of the display is secular in nature, (2) if the display either promotes or inhibits religion and (3) if there is excessive entanglement between church and state. Accordingly, the analysis into whether a particular government holiday display constitutes an impermissible violation of the establishment clause is a fact-based analysis that could result in different outcomes depending on the nature and contents of the display.

The two most commonly-recognized U.S. Supreme Court cases on this topic are the 1984 case of Lynch v. Donnelly (465 U.S. 668) and the 1989 case of County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter (492 U.S. 573).

In Lynch, the city of Pawtucket, Rhode Island was sued due to the city’s inclusion of a nativity scene in its annual Christmas display at a local park. In addition to the nativity scene, the city’s display included a Santa Claus house, a Christmas tree, reindeer pulling Santa’s sleigh, candy striped poles, carolers, cut out animal figures, hundreds of colored lights and a banner that read, “Seasons Greetings”. The city was sued just for inclusion of the nativity scene. The city lost both at the U.S. District Court level and upon appeal and was prohibited from using the nativity scene in its Christmas display. However, the U.S. Supreme Court overturned those rulings and held the city’s display did not violate the establishment clause. The Supreme Court held, in part, that when a nativity scene is included as one component of a Christmas display for the purpose of celebrating the holiday and depicting the origins of the holiday, those were legitimate secular purposes. The Court further held it did not believe the display was a purposeful advocacy of a particular religious message which would violate the establishment clause and any benefit to any particular religion was “indirect, remote and incidental”. The Court additionally held that there was no excessive entanglement between religion and state resulting from the city’s ownership of the nativity scene and inclusion of the scene in its annual Christmas display. There was no evidence the city had been in contact with any church about the content or design of the exhibit prior to or after the city’s purchase of the nativity scene. No expenditures for maintenance of the nativity scene was necessary and any tangible material the city contributed was minimal. The Court explained in great detail how church and state cannot and have never been completely separate from each other. As one example, the Court brought attention to the fact that there are government funded art exhibits that include famous religious scenes such as “The Last Supper” and “The Birth of Christ.” Generally, the Court will invalidate government action where that action was motivated wholly by religious considerations and where no secular purpose is evident. (Stone v. Graham 449 U.S. 39 (1980)). The Lynch decision was a split decision, however, with five of the justices believing Pawtucket’s use of the nativity scene was constitutional and four believing it was not.

In the Allegheny case, the city of Pittsburgh and Allegheny County – both in Pennsylvania – were sued due to two recurring holiday displays on public property that depicted religious symbols. The first display was a creche – model or tableau representing the scene of Jesus’ birth – inside the main, most beautiful, public part of the county courthouse. The creche was displayed on the grand staircase of the courthouse and was surrounded by traditional Christmas greens. The creche was donated by the Holy Name Society, a Roman Catholic group, and included a sign stating such. Included in the creche itself was a picture of an angel and the words, “Gloria in Excelsis Deo!” which means “Glory to God in the highest!” The U.S. Supreme Court found this to be an unconstitutional display mostly because the creche itself was the focal point of the display and there was nothing to detract from the patently religious (Christian) meaning and message. This is a stark contrast to the Lynch display which included primarily secular symbols.

The second Allegheny holiday display was outside the city-county building and was an 18-foot-tall menorah standing alongside a 45-foot-tall Christmas tree. The mayor’s name was on a sign at the base of the Christmas tree along with the words:

“Salute to Liberty. During this holiday season, the city of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom.”

The menorah is owned by a religious group but is stored, erected and removed each year by the city. The Court held in this instance that in the context of the display as a whole, the Christmas tree was the primary focal point, not the menorah, and Christmas trees are largely considered secular Christmas symbols. The Court further felt that the sign saluting liberty further detracted from any possible religious meaning behind the display. The Court determined that the display was a culturally diverse permissible recognition that Christmas and Hanukah are both part of the same winter holiday season. Allegheny was also a split Court decision on both issues.

Note that the above doesn’t address the situation where a private individual or group wants to erect a religious display on government property, but rather if the government itself is the sponsor of such a display. Generally, if a public entity allows a private individual or group to erect a temporary display of some kind on public property, a public forum is opened and restrictions on other individuals or groups who want to erect displays in that space must typically be limited to time, place and manner and, for the most part, should not be content based. To the extent restrictions are based on the content of the display, such restrictions must be necessary and narrowly tailored to serve a compelling state interest.

Disclaimer: This blog article should be considered general information and should not be construed as legal advice. The article is a high-level overview of some of the considerations a court will look at when analyzing the constitutionality of religious symbols in a government display. The reader should not act on the information contained herein but rather should act on the advice of his/her own legal counsel.

Resources consulted for this article include:

https://www.britannica.com/topic/Kwanzaa
https://www.britannica.com/topic/Hanukkah
https://www.britannica.com/topic/Christmas
https://www.britannica.com/biography/Jesus
https://www.cnn.com/2019/12/22/us/hanukkah-questions-answered-trnd/index.html
https://www.uscourts.gov/educational-resources/educational-activities/first-amendment-and-religion
Lynch v. Donnelly 465 U.S. 668 (1984)
County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter 492 U.S. 573 (1989)

Image courtesy of Pixabay.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library. For more information, email Sylvia.

New state law changes provisions related to employing minors

There are a number of benefits to having teenagers in the workforce, a couple of which are that it tends be cheaper for the employer than hiring adults, and it gives the teenagers some work experience and connections that could be valuable later in life. However, it is important to balance the needs of employers with the needs of the teenagers, who may still be in school. There are both federal and state laws in place that provide some basic guidelines for employers when it comes to teen employees.

Image Credit: Child Labor Laws by Nick Youngson CC BY-SA 3.0 Alpha Stock Images

Image Credit: Child Labor Laws by Nick Youngson CC BY-SA 3.0 Alpha Stock Images.

The federal Fair Labor Standards Act sets wage minimums, work hours and safety requirements for workers under the age of 18 who are working in jobs that are covered by the law. For information on the Fair Labor Standards Act as it applies to minors, click here.

IC 20-33-3 is the chapter of Indiana state law that traditionally covered employer limits on employing students. However, the part of the law where you will find these limitations has moved from Title 20 (Education) to Title 22 (Labor and Safety).

In the 2020 legislative session, the Indiana General Assembly made a number of changes to Indiana’s laws related to employing students, only one of which was moving the teen labor laws to a different part of the code. A few of the additional changes are as follows:

The Bureau of Child Labor is now called the Bureau of Youth Employment. Work permits are no longer required for students who are not Indiana residents, or for home schooled students, or students enrolled in a career and technical education program. However, working hour restrictions still apply. Break requirements have been eliminated. Working hour restrictions for 16 and 17-year-old students are the same now. Work permit termination notices are no longer required to be sent to the school upon worker termination. Minors less than 16 years old may not work during school hours. Employers who employ at least five minors age 14 to 17 must register with the Indiana Department of Labor and a minor may not work in an establishment that is open to the public after 10 p.m. or before 6 a.m., unless another employee who is at least 18 years of age also works with the minor.

The Indiana Department of Labor has a summary  document available that describes some of the additional changes. To read about all the changes, review SEA 409 in its entirety.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library. For more information, email Sylvia.

Considerations for reopening if the library board or staff still have concerns

Once the current COVID-19 public health emergency is over and the executive orders limiting movement have expired, some library board members or staff could still have concerns. It is imperative that if additional restrictions remain in place, the library enforce those restrictions universally. Some of the things a library could continue to do to encourage social distancing for the public without risk of legal recourse are as follows:

1. Rearrange or remove some of the seating to limit how many people are congregating in the seating areas and to keep the tables spread a good distance apart from each other. This might draw some criticism from taxpayers but would not be discriminatory if seating was first come first serve.

2. Meeting room reservations by the general public could technically continue to be temporarily or even permanently discontinued. Neither the law nor public library standards require libraries to provide meeting rooms. Again, this is a move that might draw criticism but wouldn’t be discriminatory if no one has access except the library staff or board.

3. Libraries could continue to request patrons stand six feet apart at the check out and reference desks by marking the floors with tape – or something else – and posting signs, similar to what retail stores are doing. Requiring everyone to do that is not discriminatory. Family members and small groups that come in together should not be required to be separated from each other.

4. Libraries can use plastic sneeze shields at the check out and reference desks to protect staff from patrons similar to what the retail stores are doing. This seems impersonal but would be a non-discriminatory safety measure.

5. Libraries could rearrange their computer areas to provide some distance between each terminal. However, if rearranging isn’t practical, they could have only every other computer terminal operational to force some distance between the users and perhaps limit the amount of time each user may be on the computer. Computer users can put their name back on the waiting list to have another turn if they don’t complete what they need to do on the computer the first time. The library could sanitize the terminals between users.

6. Libraries could limit story time and other programs to X number of people, first come first serve and make sure they are holding the programs in a large enough space that individuals are not on top of each other, and so on. Maybe those turned away because the program filled up could get to be first on the list for the next program. Or, maybe the program is repeated multiple times so everyone can have a chance to attend since smaller groups will be allowed to attend each time. Don’t pass around objects to be touched by multiple people at story time  or programs; continue to keep puzzles and games put away out of reach or require that they be checked out and checked in even while using on the premises so they can be sanitized between users, etc. Capacity limits for story time or other programs should be stated on the program description. For example: “This program is limited to X number of attendees and is first come first serve” or “Attendees may register via X or Y.”

7. Libraries could still post a sign at the library entrance and have a policy requesting that those with communicable illnesses refrain from entering the library. However, trying to kick patrons out if they are coughing or have a runny nose could be problematic for multiple reasons. Library staff don’t know if the patrons might have allergies, asthma, lung disease, cancer, etc. Additionally, with COVID-19 and other communicable illnesses, sometimes the person is contagious before they even show symptoms and sometimes a person may still be coughing after they are no longer contagious.

8. It is possible for libraries to set a lower maximum capacity threshold for their buildings that will allow for six feet between every person in the library to try to prevent against overcrowding but this could be difficult to enforce unless the library stations someone at the door to do head counts of everyone coming in and out. This would obviously draw criticism if people are forced to wait to come in until others have come out but would not be discriminatory if enforced consistently. Libraries will want a policy in place for this and should expect to have to address complaints. This will likely not be a popular move.

Wherever the general public gathers, whether retail or grocery stores, the mall, restaurants, the Bureau of Motor Vehicles or the public library, there will always be some risk of being around others with communicable illnesses. However, as stated above, there are measures that can be taken to help reduce the risk of spread of such illnesses and make public places safer for all.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library. For more information, email Sylvia.

Novel coronavirus COVID-19 resources for libraries

The following blog post is intended to provide general information and should not be construed as legal advice.The author relied on federal law and Indiana law, but did not research any other jurisdictions. Due to the rapid changes of this evolving public health emergency, the most appropriate information and recommendations will likely change daily. The information below is up-to-date as of March 18.

Libraries throughout Indiana are now embracing the dual challenge of meeting community needs while protecting the safety of staff and patrons during the current outbreak of the novel coronavirus, known as COVID-19, as well as other pandemic diseases in the future. Symptoms of COVID-19 include fever, cough and difficulty breathing.

The COVID-19 outbreak provides an opportunity for local public libraries to educate the public using reliable and accurate sources for medical and public health information. See the National Network of Libraries of Medicine’s webpage A Guide to COVID-19 (coronavirus disease 2019) for Public Libraries for a list of resources. The geographic spread of the virus also creates an opening to reinforce libraries’ traditional values of inclusion and non-discrimination.

Libraries are asking about their obligations to staff and patrons during a pandemic. The Indiana State Department of Health advises public facilities to take “every day preventive measures” to help contain the spread of COVID-19. These include:

  • Ensuring adequate hand washing facilities and supplies are available.
  • Posting signs encouraging proper hand washing and respiratory etiquette.
  • Encouraging sick employees to stay home.
  • Encouraging patrons not to enter the building if they are sick.
  • Performing routine environmental cleaning (cleaning all frequently touched surfaces in the workplace).

See the health department’s COVID-19 Information for Public Facilities and Organizations information sheet for more details.

The Centers for Disease Control and Prevention also recommends that employers create an infectious disease outbreak plan in order to be ready to implement strategies to protect their workforce from COVID-19 while ensuring continuity of operations. See CDC’s Interim Guidance for Businesses and Employers for more information.

The U.S. Department of Labor suggests employers review their leave policies and consider providing increased flexibility to employees and families. Because flexible policies can open the door to discriminatory practices, DOL reminds employers they must administer flexible leave policies in a manner that doesn’t discriminate against employees because of race, color, sex, national origin, religion, age (40 and over), disability or veteran status. Read more here: Pandemic Flu and the Family and Medical Leave Act: Questions and Answers.

Some of the measures that libraries are already taking include:

  • Increasing the frequency of sanitizing public computer keyboards.
  • Cleaning public contact surfaces twice per day.
  • Making hand sanitizer available in numerous locations (e.g., public computers, circulation desk and staff area) with signs encouraging use and encouraging patrons to use hand sanitizer both before and after using the computer.
  • Encouraging staff to wash hands frequently and thoroughly.
  • Cancelling programs; either some or all for a temporary period.
  • Removing toys or other touch-heavy objects from children’s areas.
  • Curbing outreach to at-risk populations, such as retirement communities.
  • Temporarily suspending requirement of a doctor’s note for an extended staff absence.
  • Closing temporarily, reducing services or changing the services provided.

The following resources provide additional suggestions and information:

Indiana Library Federation: About COVID-19 and ILF Response
Every Library: Resources for Libraries on Coronavirus
Library Journal: What Public Libraries Need to Know about the Coronavirus
National Libraries of Medicine: Coronavirus: Library and Business Operations Planning
OSHA: Guidance on Preparing Workplaces for an Influenza Pandemic (Steps Employers Can Take)

Libraries do not need to start from scratch in designing new policies and procedures to address COVID-19 or other pandemic diseases. We urge you consult your library’s attorney before proposing changes or additions to your library’s policies, but the following resources can serve as templates to help you get started:

As we move through this ever-changing public health crisis, it is reassuring to discover so many organizations sharing freely of their time and resources to help us all figure out what we need to be doing.

Written by Cheri Harris, certification program director/legal consultant at the Indiana State Library

Changes coming to overtime eligibility requirements under the Fair Labor Standards Act

This blog article should be considered general information and should not be construed as legal advice. The article reflects the Department of Labor rules on the Fair Labor Standards Act at the time the article was written but may not include every detail or nuance and may not reflect the law in other jurisdictions. Additionally, laws frequently change. The reader should not act on the information contained above but rather should act on the advice of his/her own legal counsel or other appropriate professional.

What is the Fair Labor Standards Act?
The FLSA is the set of federal laws that establish minimum wage, overtime pay requirements, employment record keeping, child labor standards and break time requirements for breastfeeding mothers. Please be mindful that there are also state laws in Indiana that cover some of these topics, so it’s important to review both when trying to determine what the law requires.

In general, the FLSA currently provides that nonexempt employees must be paid for all hours worked at a rate of at least $7.25 per hour. The FLSA also provides that nonexempt employees must be paid overtime pay at a rate of 1 ½ times their regular rate of pay after working 40 hours in any given week. The record keeping requirements applicable to the records of the nonexempt employees include identifying information about the employee, hours and days the employee worked, wages paid to the employee, including any overtime, as well as any wage deductions. There are different requirements for the records of exempt employees. The FLSA includes restrictions on hours of work for minors under 16 as well as lists of occupations deemed too hazardous for minors to work. Indiana state law actually provides more protection for employees and thus would trump the FLSA provisions related to break requirements for breastfeeding mothers.

Image courtesy of Pixabay.com

What does exempt/nonexempt mean?
The overtime and minimum wage provisions provided by the FLSA are applicable only to employees classified as nonexempt. Employees classified as nonexempt are eligible to enjoy the protections provided by the FLSA. Employees classified as exempt cannot benefit from – do not qualify for – the minimum wage or overtime provisions of the FLSA. They are excluded from the FLSA provisions.

How do I know if I am exempt or nonexempt?
Prior to Jan. 1, 2020, in order to be exempt from the FLSA, an employee must be paid a salary of $455 or more per week – $23,660 annually. Additionally, the person must perform duties that would be classified as executive, administrative, professional or be a computer technician, outside sales representative, or highly-compensated employee earning $100,000 or more annually. In order to be exempt, the employee’s job duties and salary must meet all of the FLSA requirements. To find out what duties qualify under the executive, administrative, professional and computer technician exemptions, see this guide.

What are the upcoming changes?
Beginning Jan. 1, 2020:

  • The salary level part of the test – the test that is used to determine if an employee is exempt or non-exempt – is changing from $455 per week to $684 or more per week – $35,568 or more annually.
  • The total annual compensation requirement for “highly-compensated employees” is changing from $100,000 per year to $107,432 per year.
  • Employers will be able to use non-discretionary bonuses and incentive payments – including commissions – paid at least annually to satisfy up to 10% of the standard salary level.
  • The special salary levels for workers in U.S. territories and the motion picture industry have been revised.

Government employers may continue to use compensatory time instead of paying overtime in the event that is the government employer’s policy. Similarly to overtime pay, comp time accrues at 1.5 hours for every hour worked over 40 by a non-exempt employee in any given work week.

When will the changes take effect?
The rule takes effect Jan. 1, 2020. Until that time, everything stays the same.

Who do I contact if I have questions about this?
The U.S. Department of Labor, Wage and Hour Division may be contacted for more information at 1-866-487-9243. The U. S. Department of Labor also has a website that explains the FLSA in more detail.

This blog article is general information and should not be construed as legal advice.  This article reflects Indiana law at the time the article was written but may not include every detail or nuance and may not reflect the law in other jurisdictions. Additionally, laws frequently change. The reader should not act on the information contained above but rather should act on the advice of his/her own legal counsel or other appropriate professional.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library. For more information, email Sylvia.

Whistleblowing in Indiana

This blog article should be considered general information and should not be construed as legal advice. The article reflects Indiana law at the time the article was written, but may not include every detail or nuance and may not reflect the law in other jurisdictions. Additionally, laws frequently change. The reader should not act on the information contained in this article but rather should act on the advice of his/her own legal counsel or other appropriate professional.

Reports to State Board of Accounts
This past legislative session, the Indiana General Assembly made a lot of little changes to Indiana laws that largely went unnoticed. One of the changes was related to reporting misfeasance, malfeasance or nonfeasance on the part of a public officer to the Indiana State Board of Accounts. SBOA is the state agency responsible for monitoring the financial integrity of Indiana’s state and local government entities. As of July 1, 2019, statute IC 5-11-1-9.5 language broadens to allow reporting to SBOA wrongdoing committed by not just public officials but also by any individual who has responsibility for administering public funds on behalf of an entity. The law provides some job protection, at least in theory, when the report is made by a state or local government employee. However, a report could be made by anyone. The law states that the public office, officer or institution may not retaliate against an employee of the state or local government entity for making such a report to SBOA alleging wrongdoing. The law also provides that an individual who has been terminated, demoted, suspended, threatened, harassed or otherwise discriminated against by the individual’s employer as a result of the individual’s good faith report is entitled to all relief necessary to make them whole again. “Relief” may include reinstatement to their job, two times the amount of back pay owed to the individual, interest on the back pay owed to the individual, compensation for any special damages suffered by the individual including litigation expenses or reasonable attorney’s fees.

Reports made by state employees
Indiana law includes several other whistle blowing statutes. In addition to the above law, there is a whistleblower law that specifically applies to employees of Indiana state agencies. IC 4-15-10-4 provides that a state agency employee may report in writing to a supervisor or the Inspector General a violation of a federal law or regulation, a state law or rule, an ordinance of a political subdivision or the misuse of public resources. This law, like the one previously discussed, also includes some protection for the employee making the report. As long as the employee made a reasonable attempt to determine the information reported is correct, the employee may not be terminated, demoted, transferred or reassigned, have salary increases or employment related benefits withheld or be denied a promotion the employee would have otherwise received just for having made the report. However, the employee can be subject to disciplinary action, including termination, in the event the employee knowingly provided false information. Additionally, employers who violate this law are subject to possible criminal prosecution.

Reports made by local government employees
There is a corresponding whistleblower law, IC 36-1-8-8, that specifically applies to employees of political subdivisions. Political subdivisions are local government entities such as public libraries, schools, cities, towns, townships, counties and more. Just like state employees, local government employees may report in writing a violation of a federal law or regulation, a state law or rule, an ordinance of a political subdivision or the misuse of public resources. However, the report must first be made to the employee’s supervisor or appointing authority unless the supervisor or appointing authority is the person about whom the report is being made. If the report is about the employee’s supervisor or appointing authority, then the statute points to the State Ethics Commission laws to determine to whom the report should be made. It appears a report could be made to the prosecuting attorney of each county in which the violation occurred, SBOA, the attorney general, a state officer or the governor, among others. If a good faith effort is not made to resolve the problem, then the employee may make a report to any person, agency or organization. IC 36-1-8-8 contains similar job protections as its state employee counterpart for good faith reports made by local employees. The state and local laws are also similar in that disciplinary action can be taken against the employee for making a false report. Local government employers who violate this law and who take adverse employment action against an employee who made a good faith report of wrongdoing commit a Class A infraction.

Reports made by private sector employees
There is also a whistleblower law that covers private sector employees whose companies are doing work pursuant to a contract with a public agency. IC 22-5-3-3 is very similar to the whistleblower laws that cover state and local government employees.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library. For more information, email Sylvia.

Better pay those library fines if you want your full tax refund check!

This blog article should be considered general information and should not be construed as legal advice. The article reflects Indiana law at the time the article was written, but may not include every detail or nuance and may not reflect the law in other jurisdictions. Additionally, laws frequently change. The reader should not act on the information contained in this article but rather should act on the advice of his/her own legal counsel or other appropriate professional.

We’re heading into tax time and many of us are looking forward to our tax refunds. However, did you know that if you have outstanding fines and fees at your public library, the library can have a portion of your refund intercepted and diverted to the library to pay off what you owe? The process is called Set off of Refunds in state law. SooR is a process where public libraries, among other entities who are owed money, can claim and receive that money out of a state tax refund owed to the person who owes money to the library. This is not something the library is required to do, but rather is just another debt collection option available to libraries and other entities. For example, Sally owes the library $150 for ten DVDs she checked out and never returned. The library went through its usual process of attempting to notify Sally and collect the money owed to the library. All the normal collection attempts employed by the library failed. The library then decided to attempt to collect the money from Sally’s next state tax refund through the SooR process.

How does the process work?
First, the library must enter into an agreement with a Department of Revenue-approved clearinghouse. The approved clearinghouse for libraries is the Association of Indiana Counties. When the library has a debt it wants paid from a person’s tax refund, the library must direct the clearinghouse to file an application for the set off on behalf of the library. After receipt of the application, the DOR will determine whether or not the person who owes the debt, known as the the debtor, is due for a tax refund. The DOR will notify the library if the debtor is entitled to a tax refund.

Within 15 days of receiving notice that the debtor is entitled to a tax refund, the library or the clearinghouse must send written notice to the debtor and the DOR of the library’s intent to have the tax refund set off. The debtor is entitled to a hearing to contest the set off if the debtor mails written notice to the library of the debtor’s intent to contest the library’s right to the debt. The debtor must mail this written notice within 30 days after the date the library’s notice of intent to have the tax refund set off was mailed to the debtor.

The total amount of the set off of the debtor’s tax refund may include the actual amount owed to the library, a 15% collection fee payable to the DOR and a local collection assistance fee payable to the clearinghouse, the amount of which is set by the clearinghouse and is not to exceed $20.

After final determination of the validity of the debt, the library must certify to DOR the amount owed by the debtor to the library that is subject to set off. Upon receipt of certification of a debt, the DOR shall set off the appropriate amount and pay it to the library or the clearinghouse. The DOR notifies the debtor of the tax refund set off.

Is the library guaranteed to get the money owed to them through this process?
No, there are a number of variables that could affect whether or not the library can recoup money through the SooR process. It is possible the taxpayer is not due a refund, in which case, the library would not receive any money through this process. Additionally, among the 10 types of entities who can use the SooR process, political subdivisions, which include public libraries, are at the end of the priority list which means other entities will get money owed to them first and there may not be enough left for the library after other creditors have been paid. If the person has the fees owed discharged in bankruptcy, then the library could not recoup the fees.

Is there a time limit by which collection for a specific debt through the SooR process must take place?
The law does not state a time limit after which a debt is not eligible for collection using this process. Additionally, the law does not specify how long a debt must be owed to a political subdivision before the political subdivision can use this process to collect the debt.

Is there a minimum dollar threshold that must be owed to the library before the library can use this process to collect on a debt?
The law does not state a minimum dollar threshold that must be owed before the library can use this process to collect a debt.

How does this work on a joint tax return if only one person is responsible for the debt?
On a joint return, the entire refund is subject to set off unless there is a timely defense raised by a co-refundee who is not a debtor. If a timely defense is raised that the refund is based on a combined tax return of a debtor and a non-debtor, then the set off can only be effected against the debtor’s share of the refund.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library. For more information, email Sylvia.

Librarian certification by the numbers

It has been a busy quarter for the Certification Department at the Indiana State Library. In July, the Professional Licensing Agency on ISL’s behalf sent over 900 renewal notices to librarians with certificates that expire Sept. 30, 2018. As of Sept. 18, here is a tally of some of the activity that has taken place as a result:

  • 47 notices were returned as undeliverable
  • 23 libraries contacted the ISL about notices for 63 people they no longer employ
  • 6 former librarians contacted ISL directly to say they had retired
  • 175 people have renewed online
  • 192 renewals submitted by mail have been processed
  • About 40 people due to renew have upgraded their certificates instead.

There are currently 2,479 active certified librarians in Indiana. So how did we end up with well over a third of all librarian certificates expiring at the end of this month?

Indiana has a long history of certifying public librarians with the goal of maintaining the integrity of public libraries and the quality of services provided to public library patrons. Our current certification program began in 2008. The first step of that process involved issuing 2,277 grandfathered certificates to all staff working in positions requiring certification, regardless of whether or not they held the necessary credentials. This eased the transition to a new set of certification requirements by protecting those people already employed by libraries from losing their jobs due to the new requirements.

Grandfathered certificates have one significant limitation in that they are not portable. They only remain in force if the individual holding the certificate stays at the same library and in the same job classification held when the certificate was originally issued. Because of this limitation, over the years when the time came to renew most grandfathered librarians have applied for regular certificates instead.

To maintain certification a librarian must earn a prescribed number of librarian education units (LEUs) and renew their certificate every five years. This is true regardless of whether the librarian holds a grandfathered certificate or a regular certificate. Because this five-year certification cycle began by putting all librarians into the same renewal period, certification statistics ebb and flow significantly from year to year with a pronounced increase in both new certifications and renewals every five years.

The first big wave of renewals came in 2013, when 466 people renewed their certificates. We are now experiencing the second wave of renewals for that initial group of librarians certified in 2008. Though some members of this group have retired or left the profession, as of January 2018, our database still included over 400 grandfathered librarians. Many from this cohort have upgraded to regular certificates, but still fall in the same renewal cycle.

Here is a look at our certification numbers over the past ten years:

The number of new librarian certificates each year includes grandfathered librarians moving to regular certificates as well as those who are new to the profession or new to Indiana and those who have earned the credentials to move to a higher level of certification.

Librarian certification rules can be found in 590 IAC 5. They are officially promulgated by the state, but they are actually created and periodically reviewed by teams of Indiana librarians for relevancy and appropriateness. They were last reviewed in 2016, by a committee of librarians representing various professional levels and different-sized libraries throughout the state. The committee recommended some changes, but they overwhelmingly supported maintaining professional standards for Indiana librarians to ensure the public’s information needs are being met by appropriately qualified librarians.

Written by Cheri Harris, certification program director/legal consultant at the Indiana State Library. Find more information about certification on our website here.