September Employer Tip of the Month:
Presented by the Law Office of Stephen Fiegel
Employer’s Obligation to Employees Who Serve Jury Duty
Recently, I received a notice from the Sacramento County notifying me that I was required to report for jury duty the following week. Unfortunately (or “fortunately” depending on your stance regarding jury duty), I was unable to serve since I am still the primary caretaker for our minor son, and cannot find someone to pick my son up from and watch him after school. But it caused me to start thinking about employer’s obligations when one (or more) of their employees is required to serve, and how informed they are on this subject. As such, I put together this summary of the applicable law on the matter.
The federal Fair Labor Standards Act (FLSA) does NOT require payment for time not worked, including jury duty. This type of benefit is generally a matter of agreement between an employer and an employee (or the employee's representative). Another federal law, however, (the Jury System Improvement Act of 1978), requires employers to give their employees the time off necessary to fulfill their jury duty obligations.
California law does NOT currently require employers to continue paying the salary of employees while they are serving as jurors. However, many employers including state and local government agencies, have a policy which compensates employees for at least part, if not all the time spent for jury service. Also the California Labor Code prohibits an employer from firing or harassing an employee who is summoned to court to serve as a juror. Employees who are harassed or fired can file a claim with the state's Division of Labor Standards Enforcement and employers can also be prosecuted criminally and face misdemeanor charges if found guilty. Federal law also protects prospective jurors while filling their civic duty.
If employers do pay their employee, the employer has the right to require its employees to remit to them the fees received for jury service. Prospective jurors are paid the amount mandated by the California Legislature, $15.00 per day and $0.34 per mile, one way for the second day of service and every day thereafter. There is no pay for the first day of service. Service is defined as physically reporting to the courthouse. Days spent on standby service do not count as payment days.
A juror who is employed by a state, or local government entity or by any other public entity and who receives regular compensation and benefits while performing jury service, may not be paid jury fees. If the juror is employed by a state or local government agency, they are instructed to fill out a Government Waiver Form that will stop the jury payment. Once this form is filled out, they are instructed to return one slip to the jury staff and keep the pink carbon copy for their employer. The legislation did not affect payments for mileage, so jurors will still be paid $0.34 per mile unless that fee is waived.
Under California law, "government employees" include those employees working for the state of California, the Regents of the University of California, a county, a city, district, public authority, public agency, and any other political subdivision or public corporation in the state.
If an employer does not have a policy to pay employees who are off on jury duty, the employees are free to use any available leave (like sick or vacation time) if they wish to be compensated while they’re serving on a jury. Furthermore, employers may not discharge or otherwise penalize an employee for taking time off to serve on a jury or trial jury if the employee, prior to taking time off, gives reasonable notice to the employer that he or she is required to serve.
Q. Can an employee seek a postponement of jury service?
A. Yes, recognizing that some businesses may be seasonal, the courts will allow in most cases one postponement of service to a date chosen by the employee. The deferred date can be up to 6 months from the original date. this enables employees to select a more convenient time to serve.
Q. If a business cannot afford to let their employees serve. Is there anything the employer can do to get the employees out of their jury service?
A. The courts understand that jury service may pose challenges to both employers and their employees, and that is why the one-day or one-trial system has been adopted. However, the employer has a legal obligation to let the employee serve without fear of harassment or dismissal resulting from jury service.
Q. Can the employer stay in communication with its employee during a trial?
A. An employer is free to communicate with its employee during trial recess at the employee's discretion. However, the employer is not permitted to communicate in any way about the trial with the employee.
If you have any further questions or need any additional information about jury duty leave, please contact me for a FREE confidential consultation at (916) 333-4653 or Stephen_Fiegel_Esq@comcast.net.