How New Jersey Employers Can Avoid Jury Duty Missteps
November 11, 2019
Do You Know What to do if Your Employee is Called for Jury
Do you know what to do if your employee is called for jury duty? While most employers recognize that they must allow workers to fulfill their civic responsibility, jury duty missteps are still common and can lead to liability.
Time Off for Jury Duty
New Jersey law requires employers to allow their employees time off to attend court for jury duty. Under N.J.S.A. 2B:20-17, employers may not penalize employees called to jury duty. The statute expressly provides: “An employer shall not penalize an employee with respect to employment, or threaten or otherwise coerce an employee with respect to that employment, because the employee is required to attend court for jury service.”
While retaliation is prohibited, New Jersey employers may require that employers provide proof of jury service. In fact, the Jury Management Office can provide written verification for that will show each date that an individual served as a juror.
The penalties for violating N.J.S.A. 2B:20-17 include the possibility of a criminal charge, as a disorderly person’s offense, and a civil suit on behalf of the employee. The statute provides that if an employer penalizes an employee for being required to attend jury duty, the “employee may bring a civil action for economic damages suffered as a result of the violation and for an order requiring the reinstatement of the employee.” The action must be commenced within 90 days from the date of the violation or the completion of jury service, whichever is later. If the employee prevails, the employee is also entitled to recover attorney’s fees.
Compensation for Jury Duty
Jurors are compensated for their service by the New Jersey Court System. The daily fee is set by statute (N.J.S.A. 22A:1-1.1) at $5 per day for grand jurors and for petit jurors. In addition to that daily fee, the statute requires that petit jurors receive an additional $35 per day starting on their fourth consecutive day of service and each day thereafter.
Under New Jersey law, individuals who are employed full-time by the State of New Jersey are paid their regular salary while they are on jury duty. However, public employees who receive their regular salary can’t collect the juror fee.
There is no requirement for private employers to compensate their employees for jury duty time. Federal law also does not mandate that private employers provide compensation. With regard to salaried employees who are exempt from minimum wage and overtime requirements, it is important to consider whether the employee has performed any work during the pay period, i.e. responded to emails or answered business-related calls. If so, they may be entitled to compensation even though they are also performing jury duty.
Even when not required to do so, many employers voluntarily provide compensation to employees serving on a jury, often for a specified number of days. Other employers allow but do not require employees to use accrued leave while called to jury service. The above benefits ensure that employees are not fearful that jury duty will lead to missed paychecks and potential economic hardship. They can also serve as a gesture of goodwill and a means to attract/retain workers.
Potential Liability for Jury Duty Missteps
For employers, losing a key employee to jury duty for several days, weeks, or even months can be problematic. At the same time, workers may fear missing time from work will result in financial hardship if they are not compensation. Nonetheless, it is still important to comply with federal, state and local law.
In September, the Fifth Circuit Court of Appeals held that a Mississippi Taco Bell franchise must face a wrongful termination lawsuit by a former worker, who alleges he was fired after refusing to lie to get out of jury duty and subsequently missed a week of work while serving on a jury.
In Maxwell Simmons v. Pacific Bells, L.L.C., the Fifth Circuit held that while Mississippi’s statute prohibiting employers from retaliating against employees for jury service does not expressly establish a private cause of action, the suit could proceed. “While Mississippi is an at-will employment state, it is undisputed that there is a ‘narrow’ public-policy exception that permits an employee to sue for wrongful termination if the employee is discharged for ‘refus[ing] to participate in an illegal act’ or for ‘reporting illegal acts of his employer,’” the court explained.
The Fifth Circuit also found that the district court erred in finding there was no genuine issue of material fact regarding whether the employee was fired over his refusal to participate in an illegal act by lying to avoid jury service. “In sum, the timing of Simmons’s termination, combined with the arguably pretextual rationale for his firing, could lead a reasonable jury to conclude that he was fired as a result of his refusal to lie to avoid jury service,” the court explained. “Simmons does not need to establish that Banger fired him because of his refusal to lie. He only needs to demonstrate that Henderson’s recommendation caused his termination and that her recommendation was motivated by his refusal to lie.”
Jury Duty Policies
To make sure you and your employees are on the same page and to avoid potential liability, New Jersey employers should adopt jury duty policies and procedures. Issues to address should include, but are not limited to, providing advance notice of jury duty, submitting proof of jury service, obtaining compensation for jury duty, and using leave during jury service. For guidance, we recommend contacting an experienced New Jersey employment attorney.
If you have questions, please contact us
If you have any questions or if you would like to discuss the matter further, please contact me, Ramon Rivera, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.