Help! Anyone out in Calif.?

nicroman

We have a small (4 people) office in Santa Monica and one of our employees is scheduled for jury duty. Can we require the employee use vacation and/or personal days to account for the days he/she will be out?

Any help/feedback will be greatly appreciated.

Gillian

Well, this one is a little obscure, but it is covered in Labor Code 230 (g). An employee MAY (my upper case)use vacation, personal leave, -------- that is otherwise available to the employee under the applicable terms of employment -------------. I haven't heard of any dispute about jury duty, but the word "may" for us means that it is the employee choice, not of the employer.

jimlegal

[font size="1" color="#FF0000"]LAST EDITED ON 03-13-03 AT 11:37AM (CST)[/font][p]Agree with Gillian. Our position is and has been that the employee has the choice in California. Good luck...

nicroman

Ok - thanks. Am I understanding this correctly that since it is the employee's choice, if the employee chooses not to use vacation and/or personal time, then the time off is not in any way counted against any leave?

Gillian

Yes

nicroman

thank you, thank you!

jimlegal

Yes...

Nina I

It depends if the person is exempt or non-exempt. If they are non-exempt, you can ask that they use their vacation time. If they are exempt, the question becomes whether or not they worked any time during the week. If so, you will have to pay for the jury duty time. Hope that helps.

Gillian

Nina 1 - this is a California question and the California labor code which covers this issue does not distinguish between exempt and non-exempt.

Hatchetman

[font size="1" color="#FF0000"]LAST EDITED ON 03-14-03 AT 02:09AM (CST)[/font][p]Gillian, I have to disagree with you about California not distinguishing between exempt and non-exempt in absence from work for jury duty.

Firstly, FLSA certainly prohibits the employer from docking the exempt's salary for absences DURING the week due to jury duty IF the employee works any part of the week. And fcourse, the employer may offset the amount of salary with jury duty fees the exempt employee receives.

The State Department of Industrial Relations has issued a formal opinion that docking salary for jury duty is only permissible if the exempt employee works NO part of the work week. See the Division of Labor Standards Enforcement at Sections 51.6.21 [url]http://www.dir.ca.gov/dlse/DLSEManual/dlse_enfcmanual.pdf[/url]. The State makes no direct comment on whether the California employer may offset any part of the salary with the jury duty fees but it seems that it may not be able to based upon the State's opinion.

If the employer fails to pay the salary as required, of course, the exempt status is then jeopardized.

Nina I

Gillian, I dearly wish we weren't in California, many many times a day, at least from a labor law perspective. EVERYTHING is an issue in California, which you probably know...perhaps this is just my tired Friday whining. In any case, both you and Hatchetman (I sure hope he didn't earn that moniker) cited the correct codes that apply. Good luck to Nicroman...

Gillian

Actually, being in California is some sort of job security, maybe. Who else but us is going to keep up with all this stuff.

Steve McElfresh

Nina,

Actually, I think you will find largely the same answer under federal law, FLSA. I.e., if the exempt employee works any part of the week, you will have to pay for the whole week they are out on jury leave.

The additions in Calif. are 1) you have to allow them to use vacation pay etc. if they wish (only relevant if they are out an entire week and are not getting paid), and 2) you have to give jury leave as a matter of public policy. I suspect that you will find some form of the latter in almost every state.

So, in this instance, I don't think Calif. is out of step. But if you want to be certain, you need legal advice, as this is just my quick read.

Regards,

Steve

Steve McElfresh, PhD
Principal
HR Futures

408.605.1870