One of our exempt managers has requested leave to attend jury duty. Do we have to allow him to go on jury duty and if so, how much time off do we have to grant him? Do we have to pay an employee who is out on jury duty?
Jury duty is a civic responsibility in which most employees will be called on to participate. Under California law, employers are required to provide all employees with the necessary time off work to serve on a jury or as a witness.
Whether wages must be paid to an employee who takes time off for jury duty or witness service depends on the employee’s status as a nonexempt or exempt employee.
Labor Code
California Labor Code Section 230 provides that an employer shall not discharge or discriminate against an employee for taking time off to serve on an inquest jury or trial jury. The law also extends to time off an employee may need to appear in court in compliance with a subpoena or court order as a witness. These provisions apply to all employers.
Employees are eligible for jury or witness duty, so long as they give reasonable notice to the employer that they are required to serve. An employer may require that the employee provide documentation from the court, such as a summons or proof of service.
Here, if the manager gave reasonable notice to the company, he must be provided the necessary time off for jury duty. There is no restriction on the amount of time the employee can be absent for jury or witness service.
Any employee who is discharged, threatened with discharge, demoted, suspended or in any manner discriminated against because of time taken off to serve on a jury or as a witness is entitled to reinstatement and back wages and benefits. (California Labor Code Section 230 (g)).
Paying Employees During Jury/Witness Duty
Whether an employer must pay wages to an employee on jury or witness duty depends on an employee’s status as a nonexempt or exempt employee.
Nonexempt Employee Pay
An employer is not required to pay a nonexempt employee’s wages while the employee serves on a jury or as a witness, unless the employer has a voluntary policy of providing pay.
Employer pay policies may offer pay for several days or weeks off for employees who serve on a jury or appear as a witness.
Rather than take unpaid time off, a nonexempt employee may choose to use their accrued vacation or paid time off (PTO). An employer cannot require use of vacation or PTO. (California Labor Code Section 230 (i)).
Exempt Employee Pay
In general, if an employee is exempt and performs any work during a workweek, they must be paid their full salary. An employer cannot make deductions from an exempt employee’s salary for absences caused by jury or witness duty.
However, an employer can make deductions from an exempt employee’s pay if the employee performs no work at all in the workweek. (Division of Labor Standards Enforcement, Enforcement Policies and Interpretations Manual 51.6.21, 51.6.21.1).
Because of the nature of exempt work, it is very unlikely that an exempt employee on jury or witness duty will perform no work at all during a workweek. The employee may be on jury or witness duty for only part of the day or week, may check messages and emails during lunchtime or breaks, or work after jury or witness duty before the day ends. Here, the exempt manager will be paid his full salary during jury duty if he does any work during the workweek.
If an employer does not want to be legally obligated to pay an exempt employee’s salary during jury or witness duty, the employer should make it clear to the employee that absolutely no work is to be performed.
The employer also should consider taking additional steps, such as delegating all the employee’s work responsibilities to someone else and blocking the employee’s access to the work server and emails.
Return to Work from Jury/Witness Duty
Unless there are extenuating circumstances, such as layoffs, the employee must be reinstated to their previous job once they have completed jury duty or witness service.
If an employer must lay off an employee who takes jury or witness leave, the employee has the same rights and seniority as if they had been at work.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.