21.9 Leave for Subpoenaed Appearance and Jury Attendance

Attendance and Leave Manual

Absence With Pay (Part 21)

Section 21.9 - Leave for Subpoenaed Appearance and Jury Attendance

R-1 Purpose

The primary purpose of this Section is to ensure that employees do not suffer undue hardship by loss of pay or leave credits because of extended absences while performing jury service or appearing as a subpoenaed witness.

Eligibility

All employees subject to the Attendance Rules are eligible for paid leave under this Section.

See related contract provision C-1

Conditions Under Which Leave Is Granted

Whenever the presence of an employee is required for jury duty, or as a subpoenaed or otherwise ordered witness in court, or before a quasi-judicial body, such employee is entitled to leave with pay without charge to leave credits if he/she is not a party to the action (i.e., defendant or plaintiff). The appointing authority may require satisfactory proof that the employee's presence is required for such purposes and pursuant to subpoena or other order.

An employee is not entitled to leave under this Section if the employee is a party to the action regardless of having received a subpoena or other order. In a civil action, both plaintiff and defendant are parties to the action and neither is entitled to leave under this Section. In a criminal proceeding, the parties to the action are the State and the defendant; the "victim" is not a party to the action and, if required to appear in accordance with a subpoena or other order, would be entitled to leave under this Section.

Employees who appear in court in their official capacity either as parties to the action or as subpoenaed witnesses are appearing in duty status and are not granted leave pursuant to this Section.

Leave under this Section is not granted for preinduction or pre-enlistment medical examinations for military service. (See "Use of Personal Leave Credits," Section 21.6 of this Manual.)

A person who receives a fee for testifying in a court of law as an expert witness does not appear in response to a subpoena or other order and is not eligible for leave under this Section.

R-2 Appearance Before a Quasi-Judicial Board or Law Enforcement Body

Provided an employee is not a party to the action and provided such employee has received an official order to appear, leave under this Section shall be granted to an employee required to appear before:

a quasi-judicial board conducting an investigation or a review (some examples are a Motor Vehicle hearing, a Selective Service Board review and a legislative committee investigation) or
a law enforcement body such as the local or State police or the FBI.

Disqualification, Exemption, Excusal and Postponement from Jury Service

Section 524 of the New York State Judiciary Law provides that a person who has served on a grand or trial jury within the State, including a Federal court, within four years of the next proposed grand or trial jury service in a State or Federal court is disqualified from such proposed service. The courts consider one day of service sufficient to disqualify a juror from further service for the four-year period. The Commissioner of Jurors may reduce the period of disqualification to two years. In the case where an agency believes an employee to be disqualified under Section 524, the agency may so advise the court. However, the court's determination of qualification is final. Section 511 of the New York State Judiciary Law also provides that certain occupational groups are automatically disqualified from jury service. Section 512 identifies persons that although not automatically disqualified, may claim exemption from jury duty service. Covered employees is this latter group are exempted only upon claiming such exemption. Employees may be requested, but not required, to seek exemption. Agencies cannot request exemption on behalf of such employees.

Although employees should be encouraged to fulfill their civic obligations, they may be requested, but not required, to ask the Commissioner of Jurors for excusal or postponement of jury duty responsibilities pursuant to Section 517 of the New York State Judiciary Law when deemed necessary for the efficient conduct of State business. The standard applied by the court in granting such applications is that attendance for jury service "would cause undue hardship or extreme inconvenience to the...

R-3

...applicant, a person under his care or supervision, or the public." If the employee declines to request excusal or postponement, or if such request is denied, the employee must be granted jury duty leave in accordance with this Section. Agencies cannot request excusal or postponement on behalf of such employees.

Extent of Leave

Employees should report for duty in their agencies at all times when their attendance for court or jury purposes is not required. A reasonable amount of travel time should be allowed in this connection. The appointing authority may require satisfactory proof of the actual hours of attendance at court or for jury purposes. The appointing authority may approve additional absence(s) from work, but such additional absence(s) must be charged to appropriate credits. For example, if the amount of time remaining in an employee's work shift after calculating reasonable travel time from jury duty site to work site is such that the agency considers requiring the employee to return to work to be impractical, the agency may permit the employee to charge the remaining time to accrued leave credits.

Employees are not granted compensatory time off in lieu of ordered appearances and jury attendance on a pass day or a holiday.

Employees scheduled to work a full shift other than a regular day shift may be allowed (and in most cases probably should be allowed) leave with pay, without charge to credits, for a full day whenever a full day has been devoted to jury duty or to a subpoenaed or ordered appearance.

See related contract provision C-1

It is not intended that such employees be given time off on an "'hour-for-hour" basis. The appointing authority should consider each case primarily on the elements of hardship and reasonableness. For example, a two-hour ordered appearance outside the employee's regularly scheduled shift should not be sufficient to warrant leave with pay under this Section. (In the interest of safety or to avoid split shifts, the appointing authority might consider switching the employee from an evening or early morning shift to a regular day shift for the period of jury duty or ordered court appearance.)

R-4 Compensation

Employees entitled to leave under this Section receive full pay for such leave. Pursuant to Section 521 of the Judiciary Law, State employees are not entitled to receive payment from the State Court System of the per diem allowance authorized by that law for any regularly scheduled workday on which jury service is rendered and for which their wages were not withheld.

Related Legal Provisions

New York State Judiciary Law, Article 16, Selection of Jurors, establishes the right of jurors to be absent from employment, and specifies criteria and procedures for disqualification, exemption, excusal and postponement.

Revision History	TM-6 - January 1991
All pages	New or Revised Material

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