Jury duty. The federal Jury System Improvement Act of 1978 (28 USC 1875) prohibits employers from discharging or taking any other adverse employment action (threatening to discharge, intimidating, etc.) against permanent employees because they perform jury duty in federal court.

Employers that violate the Act may be sued for back pay, reinstatement, and attorneys' fees, and may also be fined.

State requirements. Most states have additional laws that offer similar protection to employees that perform jury duty in state courts.

Court appearance. Appearing as a witness, defendant, in court is compulsory and can be enforced by subpoena and arrest, if necessary. Official committees and boards of federal and state agencies often have the same power as the courts to subpoena individuals.

A number of states prohibit employers from discharging or otherwise discriminating against an employee who must appear in court, but federal law does not address the issue.

In addition, a growing number of states offer the same protections to any employee who is the victim of a crime, the immediate family member of a crime victim, or someone who attends juvenile court as a legal parent or guardian of a youth.

Nonexempt employees. The federal Fair Labor Standards Act (FLSA) does not require employers to pay nonexempt salaried employees or hourly employees while on leave for jury service.

Exempt employees. Exempt employees who are absent from work for part of a workweek to perform jury service should be paid their full salaries to preserve their exemption from federal overtime laws and regulations of the FLSA (29 CFR 541.118).

However, the FLSA does not require payment when the exempt employee is absent for 1 or more full weeks during which no work is performed.

An employer may deduct any jury duty fees that the employee receives from the court from the employee’s salary (29 CFR 541.602).

State requirements. A handful of state laws do require employers to pay employees while on jury duty or providing certain witness service duties.

Best practices. Regardless of legal requirements, most employers do pay all employees called to jury duty or court appearances.

Occasionally, a sheriff, constable, or police officer will appear at your premises to serve a subpoena or other court paper to an employee.

In these circumstances, these officials have no more right to come onto your property than any other citizen, which means you can tell the official to leave and refuse access to the employee. However, this is not necessarily good practice and is not what most employers do.

Rather, the best practice is to let the official meet with the employee in a private room, since letting the official serve court papers in full view of coworkers would embarrass the employee and be disruptive.

If the employee refuses to meet with the official, the employer has no obligation to compel the employee to do so. Instead, the employer may choose to explain that the employee is refusing to cooperate.

Generally, employers are not required to grant the official access to the work area.

Best practices. The prevailing attitude among employers is that an employee summoned to serve on a jury or to testify has a civic obligation and that it is the company's responsibility to support the fulfillment of that obligation. This is achieved by protecting the employee from loss of income and by making the necessary arrangements to cover for him or her during the required absence.

Your policy on leave of absence and pay for jury or witness duty should be in writing and be communicated to employees in the employee handbook.

When developing your policy, consider the following points:

Legal compliance. Ensure that your policy meets the minimum requirements of federal and any applicable state laws.

If you do business in several states with differing rights for leave for jury or witness duty, you may want to maintain a consistent policy in all of your facilities by following the law with the most generous provisions for the employees.

Notification. Determine and communicate whom employees should contact when they receive notice to report for jury or witness duty and when.

Documentation. Courts will usually provide employees with documentation for their employers of days/hours served.

Compensation. The most common practice is to pay employees the difference between their regular pay and any compensation they receive from the court system.

Early release. If you voluntarily continue to pay an employee on jury or witness duty, it may be reasonable to require an employee to report back to work if released by the court before the middle of the applicable work shift, depending on the distance of the court from work. Some states have specific rules regarding this situation.

Deferrals. Determine the criteria for your company to request that an employee be deferred or excused from witness or jury duty due to disruption of operations and who must approve these requests. Be aware that courts may refuse the request.