Hiring Ashworth may have unintended consequences
July 24, 2021
By Mike Weland
Despite what might be the best of intentions, the library board's hiring of Sandy Ashworth, both as a consultant and as interim director, and agreeing with her request to serve without pay, may violate provisions of both the Fair Labor Standards Act (FLSA) and the Public Retirement System of Idaho (PERSI), and could cause problems for the board, for Ashworth and for the community.
During my tenure with Boundary County, I served as personnel director for a few years and became familiar with both FLSA and PERSI, and after returning from Thursday's special meeting, I began to have nagging concerns about the propriety of what initially seemed a fine idea.
Under FSLA, a public library with an elected board is categorized as a public sector employer. People are allowed to volunteer their services at public agencies in their communities nationwide with but one single exception.
FLSA specifically prohibits a public sector employer from hiring a public sector employee at no pay, even if the employer likes the idea of cost savings and the employee wants to volunteer. It's not optional, it's "thou shalt not" mandatory.
Section 3(s)(1)(c) of the act establishes that public sector employers can not allow employees to volunteer, without compensation, to do the same work for which they were employed.
Ashworth worked as library director for 20 years, retiring about six years ago under PERSI. While not given the title, Sandy has already been hard at work at the library for three months.
PERSI rules provide that if one returns to work and works more than 20 hours per week for five consecutive months in any eligible public employment, they are a PERSI eligible employee and PERSI contributions must be withheld and paid by the employer. If an employer has not withheld PERSI benefits during any period of eligible employment, they must be paid retroactively and with interest.
For the PERSI eligible employee, PERSI retirement benefits stop.
It is possible that a new director will be found and installed before the five month deadline is met, but it's undoubtedly going to be close. Instead of two weeks, as anticipated, the emergency shutdown stretched out to over three months.
Instead of reaping the savings of an unpaid volunteer interim director the board may well be setting patrons and taxpayers up for another costly "library emergency" of its own making.