Do we have to pay an employee who is out on jury duty?

Whether wages must be paid to an employee who takes time off for jury duty or witness service depends on the employee’s status as a nonexempt or exempt employee.

An employer is not required to pay a nonexempt employee’s wages while the employee serves on a jury or as a witness, unless the employer has a voluntary policy of providing pay. An employer policy may offer pay for several days or weeks off for employees who serve on a jury or appear as a witness.

Rather than take unpaid time off, a nonexempt employee may choose to use their accrued vacation or paid time off (PTO). An employer cannot require use of vacation or PTO (California Government Code Section 12945.8(g)).

However, in general, if an employee is exempt and performs any work during a workweek, they must be paid their full salary. An employer cannot make deductions from an exempt employee’s salary for absences caused by jury or witness duty. An employer can make deductions from an exempt employee’s pay if the employee performs no work at all in the workweek (Division of Labor Standards Enforcement, Enforcement Policies and Interpretations Manual 51.6.21, 51.6.21.1).

Because of the nature of exempt work, it is very unlikely that an exempt employee on jury or witness duty will perform no work at all during a workweek. The employee may be on jury or witness duty for only part of the day or week, may check messages and emails during lunchtime or breaks, or work after jury or witness duty before the day ends. An exempt manager should be paid their full salary during jury duty if they do any work during the workweek.

If an employer does not want to be legally obligated to pay an exempt employee’s salary during jury or witness duty, the employer should make it clear to the employee that absolutely no work is to be performed.

The employer also should consider taking additional steps, such as delegating all the employee’s work responsibilities to someone else and blocking the employee’s access to the work server and emails.

Read more about Jury Duty or Witness Duty Leave Explained in the HR Library.