An employer may not discharge or retaliate against an employee because the employee serves on jury duty. Although Oregon is considered an “at will” employment state, meaning that an employer (or an employee) may terminate an employment relationship at any time for any reason, there are a few exceptions to the general rule. A contract, for example, may place limitations on how, when and why an employment relationship may be terminated. An employer also may not terminate an employee on the basis of his or her membership in a protected class under civil rights law, such as gender or race. Under HB 2828 (2011), it became an unlawful employment practice under Oregon civil rights law to discharge or retaliate against an employee regarding jury duty service. In addition, a third exception to the at-will doctrine would prohibit the termination of an employee for a “socially undesirable motive.” Under this exception, an employer may not discharge or retaliate against an employee because the employee fulfills an important societal obligation, such as serving on jury duty. NEES v. HOCKS, Or., 536 P2d 512 (1975).
Q: One of my employees just received a summons to jury duty next month. Since this is a critical time for us as seasonal business, is there a hardship exemption that we can claim? Can I require my employee to defer his service?
A: A judge or clerk of the court may certainly excuse a person from acting as a juror or defer that service on the basis of an undue hardship or extreme inconvenience to the person, the person’s family, the person’s employer or even the public served by that person. There are a couple of points to keep in mind, however. The court must balance the public need for juries against the individual circumstances offered as a justification for excuse from jury service; so a request for excusal does not mean the court will necessarily grant that excusal. More importantly, you must not discharge or retaliate against an employee who chooses to perform jury service. Current law (ORS 10.090) prohibits it and you could create liability for yourself in court. In a case ultimately decided by the Oregon Supreme Court (cited above) the employer was found liable for compensatory damages for its termination of an employee who had gone on jury duty despite the employer’s request that she seek an excusal.
Q: Does the law require employers to pay an employee’s wages for time served on jury duty?
A: Generally, no. Although wage and hour law requires non-exempt employees be paid for all hours worked, an employer need not pay such employees for hours not worked. An exception, however, applies to “white-collar” salaried exempt employees. In order for these employees to remain exempt, they must receive their full salary for any work week in which work is performed, and absence for jury duty is not one of the specific reasons for which an employer may reduce an exempt employee’s salary. “Employers . . . should note that while they cannot make salary deductions for absences of an exempt employee caused 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.’” 29 C.F.R. §541.602(b)(3). Of course, even exempt employees need not be compensated for work weeks in which no work is performed during the entire work week.
Q: One of my employees was selected for service on a trial which will apparently last several months. Am I required to continue the employee’s health care insurance?
A: Not yet. Some types of leave are protected under state and federal leave laws, and these laws make specific provisions regarding an employer’s obligations to maintain or resume an employee’s health care coverage in the event of a qualifying leave event. Jury duty service is not specifically provided for under those leave laws, however, so it would be up to your benefits policy to define when and how an employee qualifies for coverage and likewise, under what circumstances that coverage will be discontinued. It would be a good idea to consult with a qualified employment law attorney before discontinuing coverage of an employee whose absences arises from an extended period of jury duty service.
NOTE 1: Employers of 10 or more employees are required to continue health, disability, life or other insurance coverage for an employee during times when the employee serves or is scheduled to serve as a juror. ORS 10.092.
NOTE 2: A judge or clerk of the court may defer jury service more than once for good cause only. Anyone requesting a second deferral must provide a list of not less than 10 dates within the following six-month period on which the person would be able to commence jury service.
Employers are also prohibited from requiring that employees use vacation leave, sick leave or other annual leave for time spent in responding to jury summons. ORS 10.055 and 10.090.
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