Employment Law Bulletin | May 2019

When Civic Duty Calls

If you have ever been summoned for jury duty, you may have noticed that attorneys rarely get selected as jurors.  In fact, trial attorneys are notorious for making sure that people with backgrounds in the legal field do not serve as jurors on their cases.  There are many theories behind this approach – some are founded on superstition; others on the fear that these types of jurors might lead the jury to reach the “wrong” conclusion.  Regardless of whether the strategy is based on myth or reality, attorneys are generally gone from the jury panel as soon as trial counsel can utter the words, “I would like to thank and excuse juror number…”

However, we recently discovered that things may be changing in the world of jury selection.  Since the beginning of the year, two SMT attorneys, Lisa Ann Hilario and Katie Jeffrey, were selected to serve as jurors in Sonoma County jury trials.  It is clear from talking with Lisa Ann and Katie that they enjoyed the unusual opportunity to perform their civic duty and watch their peers in action.  Discussing their experience with them also made us think of the employment law issues surrounding jury duty and that this is the perfect time to provide a quick refresher on these issues for our clients.

Jury duty can often present practical challenges that are difficult for employers and employees to navigate.  In Lisa Ann and Katie’s trials, the estimated timeframe for jury duty was at least two weeks, which is fairly typical.  Managing the absence of an employee who is unexpectedly gone for this amount of time not only demands the support of the employee’s co-workers, but also requires employers to understand the laws regarding the rights and protections related to jury duty.  For example, California employers are prohibited from discharging, discriminating or otherwise punishing an employee who is required to appear for jury duty.  In fact, employers must provide jury duty leave so long as the employee has given reasonable notice of the requirement to serve.

And what about pay during jury duty leave?  Employers may choose to provide non-exempt employees with either paid or unpaid time off for the purpose of performing jury duty.  If an employer chooses to provide paid jury duty leave, the number of paid days of leave is at the employer’s discretion, as are the categories of employees who are eligible to receive paid jury duty leave, i.e., full or part-time.  In addition, any fees paid to employees in connection with their jury duty may be deducted from the paid leave amount.  However, it is important to keep in mind that under both California and federal law, exempt employees must receive their full salary during jury duty unless it causes them to miss an entire week of work.  In this age of technology, with employees performing work by email and phone, it’s likely rare that an exempt employee will miss an entire week of work for jury duty.

Our Tips:  Make sure your employees know that jury duty leave is available to them if they are called for service.  We recommend having a policy in place that clearly explains whether the leave will be paid or unpaid.  If paid, your policy should set out eligibility requirements and the duration of paid leave.  Having a good policy in place will reduce anxiety and set expectations for both the employer and employee.  It will also assist the employer in treating all employees consistently with respect to jury duty leave.

Your policy should also outline what an employee is required to do when he or she receives a summons for jury duty.  We recommend that employees be required to show proof of the summons to their supervisor as soon as possible so that coverage can be arranged.  If necessary, employers may also require employees to show proof of attendance for each day of service.  Many courts have jury trial schedules that provide for early dismissal or “dark” days, when no court is held at all.  In Sonoma County, several judges have adopted a trial schedule that runs from 8:30 a.m. to 1:30 p.m., so employees are typically able to work at least partial days. To avoid employees skipping work when they are not otherwise in court, be sure that your policy requires your employees to report for work during regular working hours when attendance in court is not required.  Finally, remember to never fire, demote, cancel health insurance, withhold the accrual or use of benefits, or engage in any other adverse action against an employee simply because he or she is required to appear for jury duty or you might end up in a jury trial of your own!

If you have questions about how jury duty leave will affect your business, please reach out to an SMT employment attorney.

Kari J. Brown

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish.  Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims.  Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown