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The rumors surrounding employers’ obligations to pay employees for time spent away from work, serving on a jury, abound. Many employers assume that they are responsible for paying employees during such absences. Many assume that they cannot owe employees their salaries or wages for time which is not spent actually working. Many pay employees for jury duty, but deduct the amount of the daily stipend received by the employee from the court. So, which approach is correct? And how should an employer react when an employee arrives back from court with a vague letter, dating back to 1989, from the Attorney General’s office, advising employers that employees are entitled to receive their salaries for time spent on jury duty?
Unfortunately, the answer is not straightforward. To deal, first, with salaried, exempt employees – employers should be aware that the Fair Labor Standards Act (FLSA) prohibits deductions from an employee’s weekly salary for time spent on jury duty. An employer may, however, deduct the amount of any stipend received by the employee, from the salary check. The applicable federal regulation is 29 CFR 541.602(c), which provides that
“While an employer cannot make deductions from pay for absences
of an exempt employee occasioned by jury duty, attendance as a witness or temporary military leave, the employer can offset any amounts received by an employee as jury fees, witness fees or military pay for a particular week against the salary due for that particular week
without loss of the exemption.”
However, the general FLSA rule that exempt employees do not have to be paid their salaries for any week during which they perform no work, still applies. An exempt employee who absent from work from Monday through the following Monday, is not entitled to any pay for the full week of jury duty.
The FLSA does not require employers to pay non-exempt employees for time spent on jury duty or as witnesses at court.
However, the FLSA’s positions on both exempt and non-exempt employees are complicated in Georgia by the existence of a 1989 Attorney General’s Opinion Letter, which is being distributed to jurors in certain counties by the courts. This Opinion Letter provides that “an employee is entitled to be paid his or her salary while missing work to serve on jury duty.” This letter is not law, but it is persuasive authority that employers should compensate all employees (exempt and non-exempt, whether or not they are absent for more than one week) for jury duty. As yet, it appears to have gone unchallenged in court, and certain judges have suggested that employers who do not comply with the directive of the letter may be brought before the court to explain themselves. The point was made, at a recent employment law seminar which I attended, that judges do not have authority to legislate in this manner – but who wants to challenge them?
Until there is some decisive legislative action or litigation on this point, the most conservative position for employers in Georgia, especially those operating in jurisdictions where the Attorney General’s 1989 Opinion Letter is being distributed to jurors, is to pay employees (hourly and salaried) for time spent on jury and witness duty. Statistics indicate that 82% of employers in Georgia are doing this already. If you are in the other 18%, or you have questions about your rights with respect to jury or witness duty (either from an FLSA or a State law perspective), an employment attorney will be able to help.
By Eadaoin Waller, a senior associate in our Corporate Department
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