02/ 15/ 2008
by Beth Milito, NFIB Legal Foundation
Q. I own a small feed store and my store manager has to report to jury duty next week. My wife and I are semi-retired and concerned about how the business will survive if our manager is picked for a long jury assignment. Is there a hardship exception that my manager could use to get out of jury duty?
A. There's no denying that jury duty presents challenges to both employers and employees. Thousands of Americans serve on juries every week and each one has family, employers and co-workers who are affected by their jury service. But jury service, like the right to vote, is one of those civic obligations that employers must allow and by virtue of some state laws is actually encouraged. In your situation, your manager is not likely entitled to an automatic exemption from service.
State jury laws vary
Keep in mind that nearly all states prohibit an employer from taking any disciplinary action against employees for taking time off to serve on a jury. But the state laws on jury duty vary greatly, so make sure you are aware of your state's requirements. Some states even require the time off to be granted on a paid basis. Other states encourage, but do not require, employers to pay an employee's full daily wage while the employee is serving as a juror. New York requires employers with more than 10 employees to pay either the jury fee or the employee's wage for the first three days of jury service.
For exempt employees, the rules on wage payment are a little different. Under the Fair Labor Standards Act, the federal wage and hour law, an employer is not required to pay the exempt worker if the employee reports for a full workweek of jury duty. If the employee does any work for the employer, however, including checking and responding to voicemail or e-mails, the employee is considered to have worked during the workweek and is entitled to a full week of pay. Exempt employees who report for jury duty for one or two days during the week or for part of a day but work the rest of the week must be paid their full salary for the week.
Model jury duty policy
If your state requires paid jury time off, be sure to provide as much detail as possible about your leave provisions. If you have an employee handbook, it's a good idea to include a policy on jury duty. Consider the following example:
Jury Duty Time Off
The company understands that occasionally employees are called to serve on a jury. Employees who are selected for jury duty must provide a copy of their jury summons to a supervisor. Time taken for jury duty is granted on a [paid/unpaid] basis. Employees released from jury duty with [enter number] hours remaining in the workday, are expected to return to work.
Proof of service
Employers can generally request that employees obtain a proof of service showing the dates of jury service. Such a requirement can be particularly useful if you continue to pay your employees' wages during jury service. Just ask the U.S. Postal Service about the risk of fraudulent jury service claims. It recently prosecuted an employee who spent 144 days on a paid vacation after he convinced his supervisors that he was serving on a jury. The Postal Service continued to pay his salary during the alleged jury service. When an employee has been picked for a long-term assignment, it's particularly a good idea to demand proof of service.
NFIB members with additional questions about jury duty can contact the NFIB Employment Law Hotline. For information on the Hotline, please call 800-NFIB-NOW or visit www.nfiblegal.com.
