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The jury is out: dealing with employee absences for jury duty.

The O.J. Simpson trial focused attention on the U.S. jury system to an unprecedented degree. It also demonstrated the extent to which jury service can disrupt the lives of jurors and, indirectly, the businesses of their employers. The 372 days that the members of the Simpson jury were away from their jobs is an extreme example, but it illustrates the hardships that may befall an employer when an employee is summoned for jury service. What are an employer's rights and obligations when an employee must serve on a jury? In our increasingly litigious society, this question becomes a pressing one for many businesses. To a large extent, the answer lies in state law. Every state except Montana has a statute protecting private-sector employees from employment loss or discrimination because of jury service, and although similar in many respects, these statutes vary in significant ways from state to state.

FEDERAL LAW

Many of the state statutes are based on the federal law protecting the employment interests of jurors. That law, the Jury System Improvement Act of 1978,(1) prohibits employers from discharging, threatening to discharge, intimidating, or coercing any permanent employee because of that employee's jury service, or attendance or scheduled attendance in connection with jury service, in any federal court. The federal statute creates a private cause of action on behalf of aggrieved employees and authorizes the award of lost wages and benefits, injunctive relief, attorney fees, and costs to a prevailing plaintiff.

The Jury System Improvement Act protects employees only to the extent they are summoned for jury service in a federal court. Although the opportunities for federal jury trials increased significantly with the enactment of the Civil Rights Act of 1991, which authorized jury trials for many discrimination claims under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act, the bulk of the jury trials conducted in this country take place in state courts. Thus, employers will often have to look to applicable state laws to determine their rights and obligations when an employee is called for jury service.

COVERED EMPLOYERS AND PROTECTED EMPLOYEES

The 49 state juror-protection statutes are extremely broad in their coverage of employers. With the exception of the Pennsylvania and Tennessee statutes, they apply to all employers and employees in the state. The Tennessee statute exempts employers with fewer than five employees. It also excludes from its protection temporary workers who have been employed for less than six months. The Pennsylvania statute exempts retail- or service-industry employers with fewer than 15 employees and manufacturing employers with fewer than 40 employees.

Although all of the state statutes are designed to protect employees from suffering certain adverse employment consequences because they fulfill their civic duties as jurors, these statutes contain subtle variations in the particular jury-related conduct protected. Most states expressly protect a broad range of jury-related conduct. For example, many states protect employees from adverse consequences because they receive or respond to a summons for jury service, serve on a jury, or attend court for prospective jury service. These broad protections extend not only to those employees who are actually selected to serve on a jury, but also to those who merely receive a summons and might have to serve on a jury. In these states, an employer could not take prohibited action against an employee who has received a jury summons in an attempt to discourage the employee from fulfilling his jury duty.

The jury-related conduct protected by some states, however, is relatively narrow. The Alabama, Arizona, South Dakota, Tennessee, and Texas statutes expressly protect only those employees who serve on a jury. Arguably, these statutes do not prohibit employers from taking adverse employment actions against prospective jurors - that is, employees who have been summoned for jury duty but have not yet served on a jury. The statutes of some other states, including Georgia, Nebraska, Oklahoma, and Wisconsin, appear to protect only those employees who are absent from work because of jury duty. These statutes may not apply to employer actions based on jury-related conduct that does not actually result in an absence from work.

The particular jury service protected by a state statute often is not defined. These statutes typically refer to "jury service" or "jury duty" without identifying the courts in which the jury duty is served.(2) Such broad language is often interpreted to encompass jury duty in both federal and state courts, as well as jury duty served outside the state in which the juror is employed. The inclusion of federal jury service in the protected category under state law may appear at first glance to be duplicative of federal protections, but the statutes of some states provide far more attractive remedies to plaintiffs than the federal law. The Jury System Improvement Act provides for the recovery of lost wages and benefits, reinstatement, and the award of a civil penalty in an amount up to $1,000. Some state laws, on the other hand, permit the recovery of treble damages or of compensatory and punitive damages in addition to lost wages and benefits.

Several states, by contrast, do define and limit the jury service protected by statute. The Florida and Kansas statutes, for example, apply only to jury service in the state courts of Florida and Kansas, respectively. An employee who is discriminated against because of federal jury service would have no claim under the laws of these states. The South Dakota and Wyoming statutes protect jury service in any court in the state. Thus, an employee who works in South Dakota but lives across the border in North Dakota would have no remedy under the South Dakota statute if he or she is discharged because of jury duty in his or her home state and may not be able to assert jurisdiction against his or her South Dakota employer under the North Dakota statute.

PROHIBITED EMPLOYER CONDUCT

In most states, the jury-protection statute prohibits a broad range of employer actions taken in response to protected jury-related conduct. Typically, employers are prohibited from discharging, threatening to discharge, intimidating, or coercing employees because of the protected jury-related conduct. In these states, threatening or harassing employees to discourage them from serving on a jury may constitute unlawful intimidation or coercion. Intimidation or coercion might also include almost any other type of adverse employment action taken because of an employee's current or prospective jury service. Several states, including California, Missouri, Tennessee, Vermont, Virginia, West Virginia, and Wisconsin, make the broad scope of their statutory proscriptions clear by expressly prohibiting employers from discriminating in any way against an employee because of protected jury-related conduct.

In contrast, some states proscribe only a limited range of employer actions. The statutes of Alabama, Florida, Maine, Maryland, Oklahoma, and Texas prohibit employers only from discharging employees or depriving them of employment because of their protected jury service. In these states, threats, harassment, and discrimination short of discharge do not appear to be unlawful unless the employer's conduct constitutes a constructive discharge. However, several states, including Kansas and Nevada, prohibit threats to discharge as well as actual discharge. In Louisiana, the mere adoption of a rule, regulation, or policy providing for discharge because of jury service is unlawful.

Some states expressly bar employers from changing an employee's benefits or employment status because of protected jury-related conduct. For example, Maine employers may not deprive employees of health insurance coverage or threaten such loss because of jury service. This statute appears to require employers to maintain medical insurance during the period of an employee's absence for jury service. In Nebraska, employers may not require employees to use sick leave or vacation time for absences caused by jury duty. Rhode Island employers are prohibited from causing employees to suffer loss of wage increases, promotions, longevity benefits, or any other emolument because of jury duty, and Pennsylvania employers may not deprive protected employees of their seniority positions or benefits. The statutes of North Carolina and South Carolina prohibit employers from demoting employees because of protected jury service.

Many state statutes include a proscription against "penalizing" an employee because of protected jury-related conduct. Does an employer penalize an employee on jury duty if the employer fails to pay the employee for the time away from work? In some states, the answer is "yes."(3) In others, the answer is less clear. Although the issue of paying employees during absences related to jury service is sometimes a statutory gray area left to judicial interpretation, many statutes expressly state whether an employer is obligated to pay an absent employee.

The statutes of Alabama, Nebraska, and Tennessee require employers to pay employees for absences due to jury duty but permit employers to deduct the amount of the juror's fee paid by the court. Moreover, the Tennessee statute specifies that an employer is not required to pay an employee for more time than the employee actually spends serving on a jury and traveling to and from jury duty. In Colorado and Maine, an employer must pay wages only for the first three days of jury service. However, the Colorado statute limits the required wages to $50 per day, and the Maine statute excuses payment in cases of extreme financial hardship. In New York, employers with more than ten employees must pay the first $15 of an employee's daily wages during the first three days of the employee's jury duty, but New York employers otherwise have no statutory duty to pay absent employees serving as jurors. The juror-protection statutes of Alaska, Arizona, Illinois, Nebraska, Oregon, Pennsylvania, Rhode Island, South Dakota, and West Virginia either state that the employer is not required to pay employees for absences due to jury service or authorize employers to make that decision for themselves.

The prohibitions against discharging or discriminating against employees because of jury service effectively mean that an employer must grant an employee a leave of absence for the period of jury duty. In some instances, however, jury duty may not directly conflict with an employee's work schedule. For example, an employee who works a night shift may not have to miss work to serve as a juror during the day, but as a practical matter, both working the night shift and serving as a juror would leave little, if any, time for sleep. Moreover, some employers, faced with the prospect of an employee's absence for jury duty, might simply reschedule the employee to work nights and weekends to avoid the conflict between work and civic duty.

Recognizing the hardships these situations would work on employees, some states have addressed the problem in their juror-protection statutes. For example, Arizona, Louisiana, Tennessee, Vermont, Washington, and Wisconsin expressly require employers to grant employees a leave of absence for the period of jury service, and the Tennessee statute specifically spells out the starting and ending times for leaves provided to employees who work night shifts. The Michigan statute states that employers may not require employees on jury duty to work beyond their normal quitting time or to work extra hours beyond those normally worked by the employee. In the absence of such specific provisions addressing the conflict between work and jury duty, a court may consider the effect that an employer's work demands have on an employee's ability to serve effectively as a juror in determining whether the employer has violated the juror-protection statute.(4)

EMPLOYEE OBLIGATIONS

What must an employee do to enjoy the benefits and protections of a state juror-protection statute? In some states, employees are expressly required to provide their employer with advance notice of an absence for jury duty. Often, the juror-protection statute merely requires "reasonable" notice of the expected absence, but some states provide specific time limits for notifying the employer. In Illinois, for example, an employee must deliver a copy of a jury summons to his or her employer within ten days of the issuance of the summons. In Tennessee, an employee must give an employer notice of a jury summons on the next business day after receiving the summons. However, employees in Nevada may give notice as late as one day before scheduled jury duty, and workers in New York are protected if they give their employers notice at any time before the commencement of jury service. Most states, however, impose no express notice requirements whatsoever.

In addition to the advance notice requirements, a few states impose obligations on employees with respect to their return from jury duty. Employees in Texas must give employers notice of their intended return from jury service. In Alabama, employees must return to work on their next regularly scheduled hour after their dismissal from jury duty.

REMEDIES AND PENALTIES

Some state juror-protection statutes provide only a criminal penalty for violations and usually designate the violation as a misdemeanor. Most of the statutes, however, create a private civil cause of action on behalf of aggrieved employees. Typically, an employee who has been discriminated against because of jury service may sue for lost wages and benefits, reinstatement, injunctive relief, costs, and attorney fees. Some state statutes, however, limit the amount of back pay that may be recovered. For example, recoverable lost wages are limited to ten weeks of pay in Connecticut and six weeks of pay in Hawaii, Iowa, Maine, Minnesota, North Dakota, and Utah.

Some state statutes also provide monetary remedies in addition to lost wages and benefits. Several, for example, authorize the award of treble damages for willful violations of the juror-protection statute. In a number of states, including Alabama, Florida, Georgia, Kansas, Missouri, and Oklahoma, the juror-protection statutes expressly authorize the recovery of compensatory damages, thereby creating the possibility of sizable damage awards for pain and suffering, mental anguish, inconvenience, and other nonpecuniary injuries. Most of these states, along with Nevada and Wyoming, also expressly authorize the award of punitive damages.(5) Even in the absence of an express authorization of compensatory and punitive damages, a court may find that such remedies are available to an aggrieved employee, unless the applicable statute contains a clear limitation on damages (as many do) or otherwise establishes that the statutory remedy is the exclusive one.(6)

If a juror-protection statute does not create a civil cause of action, employers may still be subject to employee lawsuits and other potential monetary liability for violations of the statute. More than 40 states recognize a cause of action for wrongful discharge when an employee's termination contravenes state public policy. A state juror-protection statute prohibiting discharge or discrimination because of jury duty may provide an appropriate statement of public policy sufficient to support a wrongful discharge action, even though the statute provides only criminal penalties for violations.(7) A wrongful discharge in violation of public policy usually constitutes a tort, for which compensatory and punitive damages are awardable. Therefore, employers should be aware of the potential for liability far in excess of a slap-on-the-wrist fine for violations of a criminal statute protecting jurors from employment discrimination. In addition, many juror-protection statutes treat violators as being in contempt of court. These provisions permit a court to impose appropriate sanctions, including substantial fines and make-whole relief on behalf of an aggrieved employee, at its discretion.

SUGGESTIONS FOR EMPLOYERS

Because it is almost inevitable that an employer will, at some point, have to deal with an employee who is summoned for jury duty, employers would be wise to prepare in advance for the situation and adopt policies addressing it. The following suggestions for employer action are generally appropriate for all states, but before taking any action with respect to an employee who is summoned for jury duty or serves on a jury, an employer should consult applicable state law to determine specific requirements.

* Adopt a policy regarding jury duty. The policy should inform employees of their duty to notify a designated person within the organization (e.g., their immediate supervisor or the human resources director) of their receipt of a jury summons and should establish a time frame for doing so (e.g., within two working days after receipt of the summons). Even if a state statute gives employees greater latitude in notifying their employer of a jury summons, a policy establishing a short time frame will encourage early notification. The policy should state that employees will be excused from work for the period of jury duty and should state whether employees will be compensated for the time spent on jury duty. The policy should also require employees to inform the employer of the expected duration of their absence if selected to serve on a jury and should specify the time frame for returning to work on the completion of jury duty.

* Do not encourage an employee who has been summoned for jury duty to try to avoid jury service. In some states, such encouragement alone constitutes a violation of the juror-protection statute. Also, do not threaten, harass, or intimidate an employee with respect to present or prospective jury service. If an employee does not want to serve on a jury and asks whether he or she must comply with a jury summons, suggest that the employee call the court to inquire about being excused from jury duty.

* If an employee's absence from work would cause an extreme hardship for the employer, it may be prudent for the employer to call the court and request that the employee be excused from jury service. Although such requests ordinarily will be denied, extraordinary circumstances may sometimes lead to a favorable response.

* Do not count absences for jury duty against an employee under a no-fault absenteeism policy or treat such absences as excessive for disciplinary purposes.

* Do not require employees who are absent for jury duty to make up the time on evenings or weekends.

Proper preparation for jury-duty absences can reduce the risk of liability for an employer and make jury service a less stressful and more rewarding experience for employees.

NOTES

1. 28 USC [section]1875 (1988).

2. A general reference to "jury service" or "jury duty" in a juror-protection statute is broad enough to encompass both grand juries and trial juries. The statutes of 11 states expressly refer to service on grand juries as well as trial juries.

3. See, e.g., 1989 Atty. Gen. Op. No. 89-55 (Ga. Atty. Gen. 1989) (interpreting Georgia law).

4. See People v. Kwee, 46 Cal. Rptr. 2d 230 (Cal. Ct. App. 1995) (noting lack of evidence that employee's work on alternate weekends impaired his ability to serve on jury).

5. Both Nevada and Wyoming limit the amount of punitive damages that may be awarded for violations of their juror-protection statutes. Punitive damages may not exceed $50,000 in Nevada and $1,000 in Wyoming.

6. See Hodges v. S.C. Tool & Co., 833 S.W.2d 896 (Tenn. 1992) (upholding award of $200,000 in compensatory damages to employee who was discharged because of lengthy jury service and remanding $375,000 punitive damage award to lower court for reconsideration in light of different legal standard).

7. See Shaffer v. Frontrunner, Inc., 566 N.E.2d 193 (Ohio Ct. App. 1990).

James H. Coil III and Charles M. Rice are based in the Atlanta office of Kilpatrick & Cody. The firm also has offices in Augusta; Washington, DC; London; and Brussels.
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Title Annotation:State Regulations Update
Author:Coil, James H., III; Rice, Charles M.
Publication:Employment Relations Today
Date:Mar 22, 1996
Words:3212
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