Legal Clinic

Jury Duty and the Employer's Obligations

Question: Are employers required to pay employees who are out on jury duty? If so, do they have to pay employees a full day's salary while on jury duty? Can you require them to return to work if they get out of jury duty early for the day?

Monday, January 14, 2013
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Answer: Jury duty is a civic responsibility and employers should be aware of laws affecting employee leave for jury duty service in the workplace. Federal law does not require employers to pay employees who are serving jury duty. Specifically, the Fair Labor Standards Act does not require employers to pay non-exempt employees for time that they have not worked, which includes time serving on jury duty. Nevertheless, although federal law does not require employers to pay employees for jury duty service, some state laws do require employers to pay employees their full day's salary for such service. Some of these states set a maximum amount and time period for payment, and the amount of pay differs from state to state. The following are examples of states that require employers to pay employees for jury-duty service:

*                       Alabama: Employer must pay full-time employees their usual compensation for days the employee is excused from employment for jury duty service. Code of Ala. § 12-16-8.

*           Colorado: Employers must pay regular employees their regular wages, but not to exceed fifty dollars per day unless by mutual agreement between the employer and employee for the first three days of jury duty, or part thereof. C.R.S. 13-71-126. To the extent an employer demonstrates that compensating a juror would cause financial hardship, a court may excuse the employer from the duty of compensation. C.R.S. 13-71-127. An employer who fails to compensate an employee for jury service may be subject to civil action and upon proper showing, a court may award treble damages and attorney's fees. C.R.S. 13-71-133.

*           Connecticut: Employers must pay full-time employees their regular wages for the first five days of jury duty service, or any part thereof. Conn. Gen. Stat. § 51-247. An employer who fails to compensate an employee for jury duty service may be subject to civil action, and upon proper showing, a court may award treble damages and attorneys fees. Conn. Gen. Stat. § 51-247a.

*           Massachusetts: Employers must pay all employees, including part-time, temporary and casual employees, for the first three days of jury duty, or part thereof. ALM GL ch. 234A, § 48.

*           New York: An employer of 10 or fewer employees may withhold the full wages of an employee absent from work due to jury service. An employer of 10 or more employees must pay an employee serving on jury duty the first $40 of that employee's daily wage for the first three days of jury service. NY CLS Jud § 519.

Return To Work for Early Dismissal from Jury Duty Service

Generally, if jury duty ends early, employers may require employees to return to work. However, employers should be aware that certain states have enacted state laws that may provide otherwise. For example, in 2012, Maryland amended its state statute to indicate that employees that serve four or more hours of jury duty in a day, including travel time, cannot be required to return to work when their jury service ends if their employment shift begins: (1) on or after 5:00 p.m. on the day of the employee's jury service; or (2) before 3:00 a.m. on the day following the employee's jury service. Md. Courts and Judicial Proceedings Code Ann. § 8-501 (2012). Tennessee has a similar law which states, in relevant part, that an employee will be excused from work provided the employee serves more than three hours of jury duty service. Tenn. Stat. 22-4-108. Tennessee's statute also has a provision related to night shift employees, which states, "After the first day of service, when such person's responsibility for jury duty exceeds three (3) hours during a day, then such person shall be excused from the person's next scheduled work period occurring within twenty-four (24) hours of such day of jury service."  Tenn. Stat. 22-4-108. Furthermore, some state laws specifically indicate that an employer may not require a juror-employee who has served a full day of jury duty to report to work. For example, Connecticut law states that employers may not require employees who have served eight hours of jury duty in one day to work in excess of those hours. Conn. Gen. Stat. § 51-247a.

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In those states that permit employers to require employees to return to work, employers should consider incorporating language in their employee handbooks that outlines the expectation that employees return to work on days when they are dismissed early from jury service. For this purpose, below is sample language to consider placing in handbooks:

Jury duty is a civic responsibility and employees are encouraged to serve when called. You are expected to work on regular workdays when you are not required to be present at court and when you are dismissed early enough to work part of the day.

Additionally, some states offer employer protections by allowing employees to reschedule or postpone jury duty obligations if they are employed by an employer who employs a maximum of five employees and another employee has been summoned simultaneously during the same period. Some state statutes also specifically indicate that employees must notify employers regarding jury service the day after they receive a summons. For example, Alabama's statute indicates,  "Upon receiving a summons to report for jury duty, any employee, on the next day he or she is engaged in his or her employment, shall exhibit the summons to his or her immediate superior . . .  ."  Code  of Ala. § 12-16-8. Finally, almost all states have laws which prohibit employers from discriminating against, including taking an adverse employment action, against employees for jury duty service or the use of vacation or leave to fulfill jury duty obligations. Some states, including Alabama, Colorado, Massachusetts, Nevada and Wyoming impose punitive damages, treble damages or other civil penalties for employers who violate the respective statutes. Furthermore, The Federal Jury System Improvements Act prohibits employers from firing, intimidating or coercing any permanent employee because of their federal jury service. 28 USC § 1875.
Ultimately, to maintain best practices regarding employee jury duty service, employers should consider drafting jury duty leave policies into employee handbooks based on the state laws which affect their organizations.

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group. Proskauer Associate Nayirie Kuyumjian assisted with this article.

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