Bernard J. DiMuro, Jonathan R. Mook, and Michael E. Barnsback, Editors
DiMuroGinsberg, P.C.

Vol. 20, No. 6
July 2008

EMPLOYEE RIGHTS

Penalizing employees for jury duty: Is it legal?

Jane Jones comes to you and says that she needs time off work tomorrow because she has been called for jury duty. You tell her that's fine, but she needs to let you know if she gets picked for a jury. The next day, she gives you a call and says that she was picked to be a juror on a trial that's expected to last two weeks. You tell her that's OK, but she'll need to use her vacation time for the workdays she'll miss ― otherwise, she won't be paid for the days she's on jury duty.

A couple of days later, you get a call from an attorney who says he's representing Jane and that your company is violating the law and is subject to criminal prosecution. How did you get into such a fix? What legal protections do employees have when they're called for jury duty?

Statutory protections for jury duty

All Virginia residents 18 and older can be called for jury service at any time. If they don't respond to a summons for jury duty, they can be held in contempt of court. Virginia law allows a judge to defer jury duty when serving on a jury during a particular time would cause the potential juror to suffer genuine hardship. But there's no exemption from jury service simply because it's inconvenient.

Because of the importance attached to jury service and the concern that employers may penalize employees for service on a jury, the Virginia Legislature has enacted legislation to protect workers from the possible negative consequences of jury duty. Thus, under Va. Code Ann. § 18.2-465.1, you may not penalize your employees for missing work while serving on a jury. If an employee gives reasonable notice of being called for jury duty, you may not discharge her. You also may not take any other adverse personnel action against her because she misses work to serve on a jury. As a result, an employee isn't required to use either sick leave or vacation time for the days of work she has to miss.

Moreover, you may not require an employee who served on jury duty for four or more hours in one day, including travel time, to take any work shift that begins on or after 5:00 p.m. on the day of the jury duty. Likewise, an employee may not be forced to start any work shift that begins before 3:00 a.m. on the day following an appearance for jury duty.

A violation of those statutory requirements is a Class 3 misdemeanor, which carries fines up to $500. Of course, a violation could cost your company even more in the long run.

Civil suits against employers

An employee who is fired as a result of missing work for jury duty could file a civil lawsuit against your company. Virginia is an employment-at-will state, which means that unless there's a contract, employees can be terminated at any time, for any reason. However, you cannot fire or penalize an employee for doing something protected by the law.

The Virginia Supreme Court has carved out a public-policy exception to the employment-at-will doctrine since the mid-1980s, when it decided Bowman v. State Bank of Keysville. In that decision, the court said that terminating someone in retaliation for exercising rights conferred by statute may constitute a wrongful discharge. Even though the exception is a narrow one, the supreme court has allowed claims for wrongful discharge when the employer violated the public policy created by the statute.

The supreme court so far has been silent on whether the laws protecting jury service under § 18.2-465.1 create a wrongful discharge claim. In a 2004 decision, Sewell v. Macado's Inc., a Virginia federal court said that the jury service statute doesn't provide for private claims and dismissed an employee's wrongful discharge lawsuit. Bear in mind, though, that the decision of a federal court doesn't have binding force in the Virginia state courts. Federal judges primarily deal with federal laws but will be called on to decide issues of state law from time to time. When the Virginia Supreme Court is silent on an issue, the decision of a federal judge on that issue may be instructive, but it has no binding effect on the decisions of state judges.

Consequently, it's possible that an employee could successfully sue your company if you terminate or retaliate against her because she served on a jury. Even if the lawsuit proves unsuccessful, defending a wrongful discharge suit can be expensive and time-consuming. Excusing an employee from work for jury service and paying her in accordance with the statutory requirements clearly is the prudent course of action.

Bottom line

Having an employee miss work while serving on a jury may be disruptive to your company's operations, but it isn't nearly as disruptive as a lawsuit. Know your legal obligations when dealing with employees called for jury duty. Don't make the mistake that Jane's employer made in our hypothetical and end up learning your lesson the hard way.

Copyright 2008 M. Lee Smith Publishers LLC

VIRGINIA EMPLOYMENT LAW LETTER is a monthly publication provided as an educational service only to assist lay persons in recognizing potential problems in their labor and employment matters. It is not meant to be construed as legal advice. Readers in need of legal assistance should retain the services of competent counsel.