Businesses Should Not Pay Employees for the Time They’re on Jury Duty

Thursday, July 19, 2001

Page 7

PERSPECTIVES (Column)

Businesses Should Not Pay Employees for the Time They’re on Jury Duty

By ROGER M. GRACE

The juror had nothing against doing his civic duty. But he hadn’t planned on digging into his own pocket to pay for it.

The Delta Air Lines worker had hit the company’s limit for paid jury leave after 15 days on the Rampart police corruption trial. But the case would take two weeks more.

Los Angeles County Superior Court Judge Jacqueline Connor felt she could not let the juror go in mid-trial. Connor phoned Delta repeatedly to plead for more paid days off. The airline ultimately refused, Connor recalled, and the juror used his vacation days to cover his time off work.

“The employee just ate it, just ate it!” Connor said. “He was very frustrated.”

That’s the start of a news-feature in yesterday’s Los Angeles Times. It’s evident that Connor discerns some sort of obligation on the part of an employer to pay for time spent by the employee discharging civic obligations. I don’t agree.

The civic obligation to provide services as a jury is that of the juror. “Jury service...is a responsibility of citizenship,” California Rules of Court, rule 860(a) says. The obligation befalling the employer is that set forth in Labor Code §230(a): giving the juror time off to serve. Neither that statute nor reason points to an obligation on the part of Delta or any other employer to pay for time a non-salary-exempt employee spends on non-employment activities.

If an employee is paid by the employer for the time he or she is on jury service, that employee is not discharging a “responsibility of citizenship” in the least, but is merely on the job—that job being of a different nature and performed in a different venue than usual. No burden is thus placed on the individual citizen, but rather, it is placed entirely on the employer. Placing burdens on employers is popular government sport.

It is not the employer whose interests are directly served by the employee while on jury duty. (In fact, the employee might be snatched away at a time quite inconvenient for the employer, conceivably imposing a substantial burden.) The juror’s participation in the court process serves, in a broad sense, the interests of society in general. In civil cases, it is, in particular, the interests of the party demanding a jury trial that are served. If it is asking too much for the average juror to make do with the meager compensation currently set by Code of Civil Procedure §215(a) of $15 a day after the first day, then the answer is to amend that section to raise the amount.

Then, society in general (taxpayers) would pay for jurors’ services in criminal cases at a higher rate; parties in civil cases would spend more to have 12 ordinary folk, rather than the judge, decide the facts. To the extent that juror pay were raised, it would shift a financial burden from jurors to either the taxpayers or to civil litigants. Whether this should be done, and if so to what extent, requires weighing the competing interests of those involved in the court process.

The employer is simply not involved in that process.

In the Times story, Los Angeles Superior Court Judge John Fisher is quoted as saying: “So many companies that could aren’t paying anything at all” to employees who serve on juries. He remarked: “There’s something wrong.”

I see something wrong in that statement. Fisher laments that companies “that could” aren’t paying jurors. He’s taking a deep-pockets approach. Businesses that have the money should pay, he says in essence. Businesses do pay—they pay much, they pay many. Government sees to that. If government discerns a need for funding, it seeks that funding repeatedly from what it views as a bottomless reservoir of cash: businesses. The truism that is constantly overlooked, at least by liberals, is that the more revenue that is siphoned from businesses, the less capital businesses have with which to expand—or even maintain their existences—and they will lack the money to raise salaries or create new jobs. This sort of observation is dismissed by liberals with the smart alec retort that it reflects a “trickle down” theory. Yet, the simple reality remains that a business cannot pay salaries with money it ain’t got.

Fisher’s rationale, like that of Connor, appears to be that the court needs jurors; jurors need income; employers have money; jurors have employers—so the employers should pay their employees for the time they are away from work serving on juries. The conclusion that employers should pay does not logically follow from the predicates.

Connor’s husband, Presiding Judge James Bascue, is quoted in the Times article as saying: “It’s shocking that some of the largest users of the court...are so miserly.” He observes that businesses are cutting back on pay to jurors “making it more difficult for us.”

This implies that those businesses that are frequent litigators have an especial obligation to pay employees who serve on juries. Why? Perhaps he told the Times reporter, Caitlin Liu, and she didn’t report it, but certainly the logic is not immediately apparent.

If Company X has instituted civil proceedings culminating in six jury trials over the past two years is it morally obliged, as a “major user,” to pay its employees while on jury duty for as many weeks as they are gone? Is then Company Y which has brought no litigation not subject to a moral imperative to pay employee/jurors? And if Company Z has had two jury trials, should it be deemed to be under a middle-ground duty to pay jurors for a 10-day maximum?

Communism is dead. Cries for socialism once were loud; now what’s heard are whispers. A new doctrine is arising: Surrogatism. Businesses become the surrogates of government in administering programs.

Years ago, there was a debate over whether we should have socialized medicine—the system where the government provides medical services free to recipients, even if they are not indigent. There’s no call for socialized medicine any more. That’s because a substitute has been instituted. Businesses, to a greater and greater extent, are paying for health services for their employees in the form of company health care plans.

Government does not mandate that businesses have such plans (at least not yet). However, it does mandate that businesses have workers’ compensation insurance. And workers’ compensation insurers require that their policyholders have health insurance, fearing that employees who incur illnesses and injuries will otherwise falsely attribute them to their employment in trumped up claims.

Under Surrogatism, businesses finance welfare programs. They make unemployment insurance payments and (along with employees) proffer disability insurance payments.

If the businesses have government contracts, they will have dictated to them what employee benefits they must provide.

The Times article reports that Los Angeles County Supervisor Zev Yaroslavsky wants to require that county contractors pay their employees “reasonable jury benefits.” (That sounds like something Yaroslavsky would come up with.) It also says that, according to Bascue, the Superior Court is contemplating imposition of such a requirement on court contractors.

Such proposed arm-twisting would put an undue and inappropriate burden on businesses, requiring that they pay government-summoned jurors for work assigned to them by the government, for the sake of a party or parties to court proceedings.

If the court were to require contractors to pay their employees while on jury duty, it would be telling the contractors, in essence: “We’ll shanghai your sailors—and you’ll have to pay them their wages while they’re on our ship.”

What next? Perhaps government entities will require businesses, as conditions of landing contracts, to pay employees during the time they are voting. Or present in government buildings. Or watching City Council sessions on television.

This is a nation whose people enjoy relative prosperity, attributable to the economic system—capitalism. The prosperity of the people is wedded to the prosperity of businesses. It follows that anti-business measures and attitudes are toxins to our economy.

Connor faults Delta, which had already paid an employee for 15 days of jury service, for not extending the period during which the worker would get money from it while producing no work for it. Fisher takes the stance that it’s “wrong” for an employer not to pay the employee who is off on jury duty if it has the financial ability to do so. Bascue labels employers who use court facilities but don’t pay employees who are on jury duty “miserly.” Yaroslavsky wants to deny county contracts to businesses that deny “jury benefits.”

These stances reflect, in my book, a misguided eagerness to shift a financial burden to businesses, though the burden reasonably lies elsewhere, simply because businesses are regarded as payers. The attitude is: “A need exists, let business pay.”

The term I would be tempted to employ in characterizing that approach is one which is generally viewed as impolite. I will therefore borrow the retort employed by California Supreme Court Justice Joyce Kennard in her dissent in Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal.4th 119:

“Fiddlesticks.”