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  1. #1
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    Apr 2018
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    Default Subpoenaed to Court, Not Being Provided Time Off

    My question involves labor and employment law for the state of: TX

    I am being subpoenaed to court as a witness in a case involving a neighbor. I am JUST a witness, who actually didn't really see anything at all or gave any kind of statement. I have a vacation next month that is already booked and paid for and I was already approved for the time off.

    I was subpoenaed yesterday and am due in court in a week. My work is refusing to give me a vacation day for this, and have told me I have to either use a sick day (thus losing my only sick day that I have left, which I might need later in the year) or take the day off unpaid, but could face disciplinary action for taking an unauthorized day off (neither sick nor vacation), so taking my sick day is my only option.

    I read on the twc.state.tx.us site that "Just as with military leave and leave to serve as a subpoenaed witness in a court or administrative proceeding, an employer should not count jury duty leave toward an absence limit.", so would that not mean that my employer should provide an additional day for witness duty, so as to not effect my current vacation time?

  2. #2
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    Oct 2016
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    Default Re: Subpoenaed to Court, Not Being Provided Time Off

    That link your read has to do with unemployment. If you are at an employer and lets say they allow 3 absences per year and then you are terminated on number 4. TWC would not disqualify you from UI if you were terminated for absences because you violated the employer's absence policy.

    I can find Texas law with protection for jury duty but nothing that provides any protection for a witness.

  3. #3
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    Default Re: Subpoenaed to Court, Not Being Provided Time Off

    Quote Quoting PayrolGuy
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    That link your read has to do with unemployment. If you are at an employer and lets say they allow 3 absences per year and then you are terminated on number 4. TWC would not disqualify you from UI if you were terminated for absences because you violated the employer's absence policy.

    I can find Texas law with protection for jury duty but nothing that provides any protection for a witness.
    What do you mean when you say it is to do with unemployment? You mean it would just be relevant during an unemployment income application, but it is not relevant while employed? That's a bit insane. And yeah, I can't find anything about witness duty either, other than what I quoted.

    Well we're now at the point where I can't risk using a sick day in case I need it in the future, so my only option is to just take an unauthorized, unpaid day off, for a hearing on a crime that I didn't really witness anything to other than my partner calling the police, and didn't give a statement for. Sigh. I'm basically being called in just to shrug my shoulders.

    Quote Quoting Mr. Knowitall
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    Your employer may not discipline you for complying with a subpoena, but your employer does not have to pay you for the time you miss from work.

    If you have accrued vacation time sufficient to cover the missed day, and are otherwise entitled to obtain vacation time for that day consistent with your employer's requirements for requesting and scheduling vacation, then your employer should follow its policies and allow you to take the vacation day -- to do otherwise would be reasonably characterized as penalizing you for observing the subpoena.
    Thank you for the information. So how does it work if I have already taken my vacation time and have none left for the year, i.e. no vacation day in order to attend the court hearing?

  4. #4
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    Default Re: Subpoenaed to Court, Not Being Provided Time Off

    Then you would not be paid for the time.

  5. #5
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    Default Re: Subpoenaed to Court, Not Being Provided Time Off

    Quote Quoting cbg
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    Then you would not be paid for the time.
    ... But your employer cannot lawfully discipline you for taking unpaid time off of work in order to comply with the subpoena.

  6. #6
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    Default Re: Subpoenaed to Court, Not Being Provided Time Off

    Your employer may not discipline you for complying with a subpoena, but your employer does not have to pay you for the time you miss from work.

    If you have accrued vacation time sufficient to cover the missed day, and are otherwise entitled to obtain vacation time for that day consistent with your employer's requirements for requesting and scheduling vacation, then your employer should follow its policies and allow you to take the vacation day -- to do otherwise would be reasonably characterized as penalizing you for observing the subpoena.
    Quote Quoting Texas Labor Code, Sec. 52.051. Penalizing Employee for Compliance With Subpoena.
    (a) An employer may not discharge, discipline, or penalize in any manner an employee because the employee complies with a valid subpoena to appear in a civil, criminal, legislative, or administrative proceeding.

    (b) If the subpoena to which a violation of Subsection (a) applies is issued by a court, the employer violating Subsection (a) may be found in contempt by the court issuing the subpoena.

    (c) If the subpoena to which a violation of Subsection (a) applies is issued by a legislative committee or a state agency, the employer violating Subsection (a) is subject to the authority of the committee or agency to impose a monetary penalty, not to exceed $500, on a person who violates an order of the committee or agency.

    (d) An employee discharged in violation of this section is entitled to return to the same employment that the employee had at the time the employee was subpoenaed if the employee, as soon as practical after release from compliance with the subpoena, gives the employer actual notice that the employee intends to return.

    (e) An employee injured because of the violation of this section by an employer may recover:

    (1) damages in an amount that does not exceed six months' compensation at the rate at which the employee was compensated when the subpoena was issued; and

    (2) reasonable attorney's fees.

    (f) It is a defense to an action by an employee under this section for reemployment that reemployment is impossible or unreasonable because of a change in the employer's circumstances while the employee complied with the subpoena.

  7. #7
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    Default Re: Subpoenaed to Court, Not Being Provided Time Off

    Quote Quoting Mr. Knowitall
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    Texas Labor Code, Sec. 52.051. Penalizing Employee for Compliance With Subpoena.
    Good catch. Every way I searched kept coming up with the jury duty law. I should have looked at the code index. My bad.

    Quote Quoting Mr. Knowitall
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    ... But your employer cannot lawfully discipline you for taking unpaid time off of work in order to comply with the subpoena.
    I don't think that not paying for time not worked (for an non-exempt employee) would be considered discipline or penalty.

  8. #8
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    Default Re: Subpoenaed to Court, Not Being Provided Time Off

    Quote Quoting PayrolGuy
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    I don't think that not paying for time not worked (for an non-exempt employee) would be considered discipline or penalty.
    As both cbg and I have already stated.

  9. #9
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    Default Re: Subpoenaed to Court, Not Being Provided Time Off

    Quoteing cbg
    Then you would not be paid for the time.
    Quoting MR. Knowitall
    ... But your employer cannot lawfully discipline you for taking unpaid time off of work in order to comply with the subpoena.

    I read that as you replying to CBG that not paying him would be unlawful.

  10. #10
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    Default Re: Subpoenaed to Court, Not Being Provided Time Off

    If the employee is non-exempt, he has no legal expectation of being paid when he doesn't work. If he is exempt, one of the exceptions to the rule that says exempts must be paid their full salary for every week in which he works, is when he takes a full day or days off for personal reasons. He's not being disciplined; he's being treated the same as any other employee who takes time off work when they have no vacation time available. The law doesn't guarantee paid time when he's subpoena'd - only that he can't be disciplined for it.

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