Key Legal Principles and Employee Rights
A fundamental goal of the Fair Labor Standards Act (FLSA) and similar federal labor laws is to prohibit and remedy employment discrimination. In turn, such laws impose a series of obligations on employers to protect, among other things, the right of female employees to engage in a host of employment-related activities. These laws also contain provisions on employer obligations to employees who receive a subpoena to testify in court (which in certain circumstances may be jury duty). In such a circumstance, the employer obligation is to provide leave to allow the employee who receives a subpoena to participate in the legal process – without retaliation or discipline for doing so.
Applying these obligations in the example above, an employee who is legally required to be in court by a subpoena or for jury service has a right to leave to fulfill that legal obligation. A jury summons issued to an employee does not justify simple denial by the employer.
However , it is important to note that while the FSLA does indeed protect an employee’s right to be free from discipline when responding to a subpoena or court order, certain laws differ. For example, under certain provisions of the Uniformed Services Employment and Reemployment Rights Act – which all service members are entitled to take leave – employers are able to deny leave for failure to submit documentation. Furthermore, some federal and state statutes providing leave for medical issues or care permit employers to deny leave under certain conditions.
In addition, a review of the separate Fair Employment and Housing Act reveals that employers must provide employees with time off when summoned for court in connection with an employee’s personal matter if he or she makes several requests in advance. Some state courts have even gone so far as to find that companies can be sanctioned for inconveniencing a civil or criminal court because of their failure to respond to a subpoena or to arrange for the appearance of a selected juror.
Different Types of Court Appearances and the Rights of Employees
Certain court related obligations may, in some cases, be enough to prevent an employer from denying the employee time off for court appearances. However, the specific court related obligation governing the absence is significant, as applies to both jury duty and witness subpoenas, personal legal matters such as contested child custody and even criminal court appearances. Each of these types of court related obligations should be analyzed individually.
For example, employee obligations to appear for jury duty are covered under the Illinois Jury Act, 705 ILCS 315/1, et seq. Under the Act, employers are specifically prohibited from terminating or threatening to terminate an employee who is summoned for jury duty. Section 1 of the Act provides that "[i]t shall be unlawful to discharge any person from his employment, or threaten such person with discharge, because of such person’s jury service or other duty required by law."
On the other hand, an employee obligation stemming from a subpoena to appear as a witness in civil litigation is not covered under the Act. Illinois law does provide limited protections to employees who are required by a subpoena or a valid court order to testify. Under Illinois law, an employee who appears as a witness before a "court, coroner’s inquest, grand jury, or similar proceeding" in any matter of which he is not a party or complainant shall not be subject to discharge without causation or being otherwise disciplined. See 820 ILCS 147/1(a). Therefore, the employee must be required to attend court to testify, and the subpoena must issue from a court or similar proceeding in Illinois. Importantly, the statute does not define a "similar proceeding," and it is unclear what proceedings would qualify as such. Further, the statute is silent as to whether the employee must be directly involved in the case, and thus "similar proceedings" could possibly refer to administrative proceedings as well.
In contrast, personal legal matters such as contested child custody hearings are not covered under the subpoena statute, and do not fall within the ambit of court related obligations that would prevent an employer from denying time off. Courts have interpreted the Illinois Human Rights Act to prohibit employers from discriminating against employees because of their sex. See 775 ILCS 5/2-101(A). However, the Act does not require employers to give paid absence for absences unrelated to the employer’s business. Courts recognize that one sex may be more likely than the other to need such time, but absent statutory authority an employer is not required to treat such persons equally. Therefore, an employer need not grant an employee’s request for time off from work if the time needed is for the purpose of attending a contested child custody hearing.
Similarly, an employee facing a criminal charge may not be entitled to time off from work. Consider also that an employee has no legal right to refuse to appear in court after being summoned for a traffic charge. A number of years ago, a Chicago police officer was summoned to appear in court to testify against a fellow officer who had been charged with illegal possession of a firearm. The officer chose not to appear twice; as a result, the criminal court dismissed the matter. The officer was terminated for failing to appear as a witness. The Police Board upheld the termination on the basis that the officer, as a police officer, was required to comply with the subpoena under Illinois law. Ultimately, the Appellate Court affirmed the Board’s decision.
There are a number of defenses available to the employer if the employee is absent from work without giving sufficient notice. Notice procedures vary for each employer, but generally require a reasonable notice period to be given by the employee. Courts have noted that when an employee is absent, the employer has the burden of proving that the employee voluntarily abandoned employment by failing to report to work for a significant period of time after the employee’s absence began.
Even though employers are generally not required to give employees the day off for jury duty, subpoenaed to appear as a witness, or involved in contested child custody matters, all employees are entitled to take whatever leave is available under the employer’s attendance policy. Before denying leave, employers should confirm the employee has exhausted all available leave under company policies.
State-Specific Laws Regarding Time Off to Appear in Court
Because employment laws are generally governed by state law, employers must look to state-specific laws when considering whether to permit employees to leave work to appear in court. Some states extend protection beyond the federal FMLA and state equivalents, offering certain employees additional time to attend court hearings and other services. Other states have not only created additional protections but also placed limits on an employer’s ability to deny an employee leave for a court appearance, including the requirement that the employer provide replacement pay when denying the employee leave.
California: Employment leave for domestic violence or stalking
California provides numerous employment protections to employees who have victims of domestic violence, sexual assault, or stalking, including the right to take reasonable time off without losing pay, pay differential, job security, and protection against retaliation. Under California Labor Code § 230(c), employers may not retaliate against an employee for requesting or taking time off from work to seek legal relief or remedies related to domestic violence, sexual assault, or stalking. Employees may take time off without pay to appear in court, and the employer cannot require the employee to find a replacement worker. Employers must provide leave for only those absences "necessary" for the employee to seek relief. Leave can be intermittent or on a reduced leave schedule when necessary, and employees must give their employer reasonable advance notice unless such notice is not feasible. When providing notice to the employer, the employee is not required to inform his or her employer of the specific details of the legal matter.
California: Crime Victims Leave of Absence
California law also protects crime victims from discrimination and retaliation for attending judicial proceedings. Under California Government Code § 2290, employers are required, upon demand of an employee, to permit the employee to appear in any judicial proceeding related to victim criminality. Thus, if an employee is a party to the action or the employee is a victim of the criminal conduct giving rise to the proceeding, the employee can demand to appear in the judicial proceeding.
Employees giving reasonable advance notice are entitled to unpaid leave of absence for purposes of attending judicial proceedings arising out of the employee’s status as a victim of a violent or serious felony. The leave of absence shall not exceed 40 hours in any calendar year. The employer cannot require the employee to use any of their accrued leaves of absence or paid time off for the purposes of taking such leave. Prior to taking leave, an employee must give his or her employer, in writing, reasonable notice of the employee’s intention to be absent and the estimated duration of the absence. If the employee cannot give the employer notice before taking leave because of an emergency, the employee must provide the employer with notice no later than 2 workdays after the employee’s scheduled workday.
Florida: Domestic violence leave
Under the Florida Protection from Domestic Violence Act, employers must allow employees up to three days of leave per 12-month period to help employees seek services related to domestic violence, which can include appearing in court.
North Carolina: Leave for court appearance
Under N.C. Gen. Stat. § 95-28.3, employers must allow employees who are parties or witnesses in certain domestic violence or criminal proceedings, elder or disabled adult abuse proceedings, and juvenile proceedings to attend court.
The Employer’s Mindset and Possible Restrictions
While this may seem petty, employers are not being jerks when they sometimes deny employees leave to go to their court appearance. Obviously, employers have business needs and may deny the time if they are thin on the ground and can’t afford to have the employee out. If the employee is a key employee who plays a critical role in the day-to-day operations, the employer may need to keep that person on-site to make sure the shifts get covered, or the widgets get created, or informed consent is properly collected, etc.
Another reason to deny the employee time off for the court appearance is that the employer has no way to verify whether the hearing is scheduled for the employee’s case. For example, say there was a VOCP (Vocational Opportunities for the Criminally Convicted) violation/Sentencing Hearing scheduled at 9 a.m. at Santa Rita Jail and the employee says they want to leave work at 10 a.m. to make the hearing. Now let’s assume the employee does not have a copy of the Notice to Appear (NTA) for the hearing, which is a document that tells the person the date and time they have been ordered to show up at court, and instead only has a VOCP Notice of Hearing from last week . In that situation, it is impossible for the employer to verify that the employee is needed for that particular hearing and allow them to leave work early.
Maintaining "a stiff upper lip" and continuing the same level of business operations is a natural human instinct whenever a key employee informs the boss that they need to leave to go to court, in case the appearance is not legitimate. However, that is not a legitimate justification to deny the employee time off for their court appearance in this example – the employer still must allow the employee to attend the hearing at a reasonable time. If the employee has two hearings scheduled in the same morning at this jail, then the employer’s obligation becomes a lot more complicated – but once again, the employer must give the employee enough leeway in going to the second hearing to comply with the court’s order that the employee appear for that hearing.
Maintaining communication with the employee and making sure the employee has requested the correct time off allows the employer to also make sure that the employee is requesting the time off for the right reason, and it allows the employer to appropriately document the employee’s request for time off as well.
What to Do if You Are Denied Time Off to Appear in Court
It is also a good idea to provide your employer with as much advance notice as possible. Although they are not legally required to grant you this time off, employers are often more willing to cooperate if you give them as much warning as possible. Additionally, providing as much notice as possible gives you time to challenge your employer’s denial, as well as time to make alternate arrangements for appearing in court and/or getting your case dismissed.
If your employer denies your request for court leave, get a written notice of denial or try to get a statement from them in writing that they are denying your request. This may not change their minds, but will allow you to challenge the denial in court if necessary. Then, reach out for assistance from your attorney to determine whether there are any legal avenues to pursue. Finally, if you believe you cannot take the time off needed, look for resources that may assist you in contesting your ticket or court date. There are many different software programs and web-based applications that can assist you in generating a motion to continue your case to allow you more time.
How Documentation and Communication Can Make a Difference
Proper documentation and communication are key components to settling disputes over whether or not an employer is legally required to grant time off work to employees who may have to appear in court. Specific details of the request, including the date, time, nature of the court appearance and expected duration, are critical in clarifying what the dispute is about. Where possible, documentation should include the date and time any notice of absence was given to the employer, as well as a statement from the employee attesting to the specific court appearance details .
Employees are best off if they can provide their employer attendance receipts issued by the court hearing office. For those who submit proof of their court appearance to their employer in a timely fashion, the employer is usually not left with much, if any, choice but to respect it. It is important to note that in the absence of a court-issued receipt, the employer may still be justified in requiring a written explanation if the circumstances suggest that the notified absence is questionable in terms of its reasonableness.