It’s a perfect example of being caught between a rock and a hard place – or, in this case, jury duty and a work place.
If you’re fired for a jury duty-related work absence, whether you have any recourse depends on whether you are summoned to jury duty in New York or federal court.
As explained below, it appears that New York law is (generally) less protective than federal law of an employee-juror’s workplace rights.
New York Judiciary Law § 519 (entitled “Right of juror to be absent from employment”) provides, in pertinent part:
Any person who is summoned to serve as a juror … and who notifies his or her employer to that effect prior to the commencement of a term of service shall not, on account of absence from employment by reason of such jury service, be subject to discharge or penalty. An employer may, however, withhold wages of any such employee serving as a juror during the period of such service; provided that an employer who employs more than ten employees shall not withhold the first forty dollars of such juror’s daily wages during the first three days of jury service. Withholding of wages in accordance with this section shall not be deemed a penalty. Violation of this section shall constitute a criminal contempt of court punishable pursuant to [Judiciary Law § 750].
Thus, this statute makes it a misdemeanor to dismiss an employee for jury service.
However, it does not provide a private right of action by an aggrieved employee against his/her employer. See, e.g., Arnold v. New York State Div. of Human Rights, 2010 NY Slip Op 01599, 70 A.D.3d 605 (App. Div. 1 Dept. 2010).
Note also that it only applies where an employee provides their employer with notice “prior to the commencement” of jury service.
A federal statute, 28 U.S.C. § 1875 (entitled “Protection of jurors’ employment”), does provide a private right of action, as well as a wide range of remedies. It states, in pertinent part (emphasis added):
(a) No employer shall discharge, threaten to discharge, intimidate, or coerce any permanent employee by reason of such employee’s jury service, or the attendance or scheduled attendance in connection with such service, in any court of the United States.
(b) Any employer who violates the provisions of this section–(1) shall be liable for damages for any loss of wages or other benefits suffered by an employee by reason of such violation; (2) may be enjoined from further violations of this section and ordered to provide other appropriate relief, including but not limited to the reinstatement of any employee discharged by reason of his jury service; and (3) shall be subject to a civil penalty of not more than $5,000 for each violation as to each employee, and may be ordered to perform community service.
(d)(1) An individual claiming that his employer has violated the provisions of this section may make application to the district court for the district in which such employer maintains a place of business and the court shall, upon finding probable merit in such claim, appoint counsel to represent such individual in any action in the district court necessary to the resolution of such claim. Such counsel shall be compensated and necessary expenses repaid to the extent provided by [18 U.S.C. § 3006A].
(2) In any action or proceeding under this section, the court may award a prevailing employee who brings such action by retained counsel a reasonable attorney’s fee as part of the costs. The court may tax a defendant employer, as costs payable to the court, the attorney fees and expenses incurred on behalf of a prevailing employee, where such costs were expended by the court pursuant to paragraph (1) of this subsection. …
Despite its apparent breadth, however, at least one federal court has interpreted the words “by reason of” to require “but for” causation in order to establish a violation of the statute. Papalia v. Milrose Consultants, Inc., 09 Civ. 9257 (NRB), 2011 WL 6937601 (SDNY Dec. 29, 2011). This is a more exacting standard than the “motivating factor” causation standard that applies, for example, to status-based discrimination claims under Title VII.