John, a regular full-time employee of BigCo, received a jury summons from federal court. Upon learning he had to appear for jury duty, he called Jamie, BigCo’s human resources representative, to find out what he needed to do. Jamie told him that he needed to take personal leave for his absence.
After hearing John complaining, the federal judge’s law clerk called BigCo and advised the company that it was violating federal law.
Before the company could correct its policies, John again was required to use three days of personal leave to appear at another trial. After the federal judge learned John again had to use vacation leave, the judge issued an order requiring the company to appear before the court and explain why it shouldn’t be found in contempt.
BigCo had to restore John’s personal leave and appear before the court to justify its actions. It explained that it was in the process of “rolling out” a new policy to correct its mistake in requiring employees called for jury duty to use personal time, and the changes hadn’t been implemented completely when John had to use his vacation again.
While the court ultimately didn’t find BigCo in contempt, this case serves as a reminder of how seriously courts take jury-leave obligations. This article will examine the leave requirements related to jury service and provide some suggestions to comply with the law and avoid being hauled into court.
Two courts may summon employees for jury duty — federal courts and state courts. Many states protect employees who are summoned for jury service in state courts. This article examines the requirements of federal law and the leave issues that jury duty raises. Be sure to check your own state’s laws to see if employers have additional obligations under state law to employees summoned for jury duty.
State-by-state comparison of 50 employment laws in all 50 states, including jury duty leave
Federal law regarding employee’s serving jury duty
The Jury System Improvements Act, 28 U.S.C. § 4302(b), protects any employee who serves as a juror in federal court. Employers can’t terminate or discipline “permanent” employees because of their jury service in federal court. While the federal law doesn’t define “permanent employees,” employers would do well to treat all regular full-time and part-time employees as protected by the Act.
While “permanent” suggests temporary and probationary employees are excluded, a prudent company won’t act against any employee’s right to leave for jury service without consulting its counsel because the Act sets stiff penalties for violations. An employer that fires, threatens to fire, or tries to intimidate any employee because of her federal jury service is liable to the employee for lost wages and benefits and faces a civil penalty of up to $1,000 per violation.
The court also may issue an injunction against the employer or order it to provide other relief. A federal court also will appoint an attorney for an employee who shows that her claim has probable merit. If the court finds the employer has violated its obligations, it will be liable for attorneys’ fees and costs. An employer that defends a claim, however, may recover attorneys’ fees from an employee if the claim was frivolous or made in bad faith.
Limits. Federal law doesn’t limit the amount of protected leave an employee may receive. It protects employees for the duration of their jury service. Upon completion of jury duty, you should reinstate employees.
Compensation. Employers aren’t required to pay employees for time spent serving on a jury. The Fair Labor Standards Act (FLSA) doesn’t require payment for time not worked, including jury duty. Some states require employers to pay an employee wages for time spent serving on jury duty or allow him to use paid leave during jury duty.
Some employers probably are asking, “But what if we want to pay them while they’re serving on a jury?” Employers that want to consider voluntarily paying employees for jury leave must address thorny pay issues. They must distinguish between compensation for exempt and non-exempt, salaried employees for overtime purposes. For overtime-exempt employees, certain restrictions apply.
The key to understanding the rules for exempt employees is asking whether the employee worked at all during the workweek. When an overtime-exempt employee is absent for part of a week for jury duty, his employer can’t reduce his weekly salary. That seems counterintuitive, so think of it like this: The employee has worked during that workweek and is entitled to the regular weekly salary, even if the remainder of the week is spent on jury duty.
Employers may, however, adopt a policy that provides that an exempt employee who is absent for jury duty for a period of one workweek or longer won’t be paid for the week because he has performed no work. For non-exempt employees (those who receive overtime), those restrictions don’t apply.
You also must be sensitive to other leave requests. For example, if you have paid leave earmarked specifically for jury duty and the employee has exhausted the leave, he then may request to use vacation pay or other paid personal leave in accordance with your leave policies. If he requests to use personal leave to receive pay while serving on a jury, you must be very careful. Without a good reason, failing to allow the use of paid leave requested in accordance with your policies could be viewed as discrimination in violation of federal or state law.
Verification. Employers may verify an employee’s request for leave for jury service. Typically, you simply would request a copy of the jury summons issued by the court. If the summons isn’t available, you may request other written documentation from the court summoning the employee. You may require an employee to provide notice of the need for leave to attend jury duty so long as your requirements are reasonable.
To avoid retaliation claims, employers should ensure these measures are carefully applied and not used as a ruse to terminate or discipline an employee based on her jury service.
Unionized employers. In addition to the state and federal laws, employers at union shops will have to consider the impact of the National Labor Relations Act (NLRA) and any collective bargaining agreement on the employer’s obligation to provide leave.
You must note that a collective bargaining agreement may not waive an employee’s statutory right to leave for civic duty. You also should be aware that policies for jury-duty leave may affect the terms and conditions of employment and thus require collective bargaining.
HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including discrimination
As every high-school civics student knows, jury service is a civic duty. Without jurors, our legal system won’t function. Courts therefore take violations of the protections for jurors seriously and expect employers to comply with the law. You would do well to observe the principles set out above to ensure your leave policies comply with federal and state law for jury duty lest you find yourself called before an angry judge to explain yourselves.
About: Oklahoma Employment Law Letter:|
Excerpted from Oklahoma Employment Law Letter and written by an attorney at the law firm of McAfee & Taft. OKLAHOMA EMPLOYMENT LAW LETTER does not attempt to offer solutions to any individual problems or to provide legal advice to its readers. Rather, the OKLAHOMA EMPLOYMENT LAW LETTER seeks to provide information about current developments in Oklahoma employment law. Questions about individual problems or requests for legal advice should be addressed to an employment law attorney of your choice. Contact the attorneys at McAfee & Taft.