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Ask the Hotline | Should Second-Shift Worker Report After Jury Duty?

January 29, 2019
Q. One of our second-shift employees told us she was called for jury duty. If she is seated on a jury, can the company still have her work since her shift is outside of her jury-duty hours?
A. No, you may not require an employee to work during the time she is empaneled on a jury. The opening statement on the jury duty Web site states that “Serving jury duty is your primary obligation over your job.”
According to the Office of Massachusetts Jury Commissioner:
  • Night shifts — If you (employee) work a night shift, you aren't required to work beyond midnight on the night before your first day of jury service. You may not work while you're impaneled on a trial. You aren't required to work on your last day of service if you're released by the court after 4 pm. 
The employer and the employee may reach a voluntary agreement for the employee to work. But the company needs to make sure it is not called before a judge to be questioned about why the employee is too tired to pay attention during the trial or arriving late to court due to working second shift the night before. 
The Web site of the Office of Jury Commissioner website contains useful information for employers on a number of issues pertaining to an employee’s jury duty obligations.
Canceled service and early release
If jury service is canceled or the employee is released early, the employee should tell the employer and return to work if the employee has enough time to get there. Time required to return home to change into a uniform or other required work attire can be factored into the time calculation. 
The law states that if the employer made arrangements for someone else to cover the employee’s shift and won't let the employee report to work, the employee may contact the Jury Commissioner’s Legal Department to seek assistance. While there is no explanation as to what action the state may take, an employer should be prepared to offer an explanation if such a situation occurs.
Getting paid for jury duty
Any employee who works in Massachusetts on a full-time, part-time, temporary, or casual basis must be paid the employee’s regular wages for any work missed for the first three days. After the third day, the state may compensate jurors at the rate of $50 per day.  
If a company is willing to continue to pay the employee beyond day three, the company may require the employee to turn over the $50 a day as a condition of paying the employee.
The employer may also elect to pay the employee nothing with the employee collecting just the $50 a day stipend or pay the employee the difference between the employee’s base pay minus the $50 and allow the employee the option to use paid time off (PTO) or vacation time to make up the lost wages. It makes sense to tell the employee in advance what the company practice is.  
Massachusetts employers are not required to pay jury duty for an employee who:
  • works unpredictable schedules (e.g., part-time substitute teachers).
  • is an independent contractor.
  • is self-employed.
  • works out of state. On the other hand, if the employee works in Massachusetts for a company based in another state, the company must pay the employee. 
Employment restrictions
An employer may not:    
  • give an employee mandatory work assignments that would interfere with jury duty.
  • force an employee to reschedule jury duty or use vacation or personal days for jury duty.
  • make a part-time employee reschedule jury service for a day the employee does not usually work.
  • harass or coerce an employee or deny the employee benefits due to jury duty obligation. 
Members may call the AIM Employer Hotline at 1-800-470-6277 with questions about this or any HR-related issue.
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