Ask Human Resources: Court Time: Managing Employees With Legal Obligations

By Jodi Schafer, SPHR, SHRM-SCP

QUESTION:

Some of my employees have been spending a lot of time in court lately. We have had just about everything from; divorce, child custody, probate issues and parental guardianship.  We also had a number of jury duty obligations.  As you can imagine, these absences caused a great deal of disruption in the office.  Is there anything I can do to minimize this impact?

ANSWER:

Unfortunately, there is not much you can do about staff members’ legal obligations.   In Michigan, we must comply with the Revised Judicature Act of 1961 (MI STAT. Sec 600.1348).  The law protects employees who are called for jury duty from any discipline.  However, you are not completely helpless.  You can control certain aspects of the process, which may minimize the impact.  To do this you will need a policy that communicates:

  1. Notification of a court related obligation and

  2. If and how they will be compensated.  

When a person is subpoenaed, s/he must report, whether as a witness, defendant or plaintiff, or as a potential juror.   Employees should, however, know of their legal obligation to attend a hearing or serve on a jury well in advance of the date.   This allows you to establish a policy that requests employees inform you as soon as they are aware of this legal obligation.  This provides time to line up a replacement.  Notice I used the word “request” rather than require.    There is really no way to require notice since you are unable to place consequences on an employee’s failure to notify.   Michigan law disallows any discipline against employees who must miss work due to jury duty obligations.   There can be no adverse impact if the employee does not notify you on a timely basis.  So why have the policy?  Most employees are compliant and will provide you the information. 

You also have control over compensation. You are not required to compensate non-exempt employees for time appearing in court. You may, however¸ choose parameters for compensation as long as these parameters are within the regulations of the Fair Labor Standards Act (FLSA).   For example, you may opt to provide compensation to employees who are on jury duty but not pay for employees who have been arrested and are missing work while on trial.   This policy must be carefully drafted to avoid any problem with regulations and possible unintended claims of discrimination.  For example, in Michigan marital status protected, so if you pay for employees on jury duty yet you do not compensate employees for court for matters of divorce, separation, for custody, you may find yourself trying to defend a claim of unintentionally discrimination based on marital status. 

When it comes to compensation, employees designated as exempt (salary) must be paid for the week to maintain their status as exempt.  So, if an exempt employee is in court four out of five days yet works the fifth day, this employee should receive the full week’s’ pay.  You can, however, have a policy that requires an employee to pull from any available paid time off bank to cover absences (even in court matters).  If they are out of PTO though, you may still need to compensate them for the week.

Your policy can also establish parameters for returning to work. Jury duty often requires employees to call in the morning of the assigned days to learn if they have to report.  If you’ve already found someone to cover for that person or you canceled his/her appointments, you may not need them to return to work.  You may also request employees return to work as soon as their obligation had been met for that day.  Since Michigan law prohibits mandating employees return to work on the same day, I again used the word “request”.   Be careful of this language, as it could be interpreted as a mandate to return to work,

Establish a policy that meets the needs of the practice, is easy to manage and understand, is legal, and is able to be administered  Don’t ever give an employee the impression that you would like him or her try to get out of the court obligation.  Be sure your policy does not punish your employees for their court obligations.  In reality, you don’t have much say in the matter.  It is the judge who is in charge.