“In Illinois, employers who fire employees on account of jury service may be found in contempt of court”

      (By Honorable William Haddad and Brian Roth)

The importance of jury service is axiomatic. To be sure, jury service is among the most important civic functions that one can perform. The United States Constitution repeatedly recognizes the jury institution as a hallmark of our nation’s system of governance. See, e.g., U.S. Const. art. III, § 2 (“The Trial of all Crimes . . . shall be by Jury . . . .”); U.S. Const. amend. V (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . .”); U.S. Const. amend; VI & VII (“In suits at common law… the right of trial by jury shall be preserved…”). Illinois has codified these principles under 705 ILCS 305/4.1.

Section 305 does not require employers to pay jurors during their service. However, it does require employers to give “time off from employment” for jury service, and, furthermore, it sanctions employers who “discharge, threaten to discharge, intimidate or coerce any employee by reason of the employee's jury service.” Violation of §305 can result in civil or criminal contempt, reinstatement of the employee with restoration of pay and benefits, and attorney’s fees.

However, the effect of §305 was compromised by a later amendment that states “that the employee summoned for jury duty must deliver to the employer a copy of the summons within 10 days of the date of issuance of the summons…” This provision diminished the effectiveness of the juror protection statute because jury summons rarely disclose the 10-day notice requirement and, even so, most jurors rarely notify employers to expect service beyond the day of their appearance.

The issue arises---can courts go beyond their statutory authority to protect the integrity of the jury system? The answer is “yes.” Section 305 was never intended to preempt other laws protecting jurors: “Any right or remedy provided in this Section is in addition to any right or remedy otherwise provided by law to an employee.” 705 ILCS 305/4.1(f). Indeed, Illinois recognizes other rights and remedies found at common law and the Constitution which give sweeping authority to  the court to protect the integrity of the jury system and citizens who serve it. See, e.g., People v. Huggins, 258 Ill. App. 238, 243 (1st Dist. 1930); People v. Vitucci, 49 Ill. App. 2d 171, 172 (1st Dist. 1964); Palmateer v. Int’l Harvester Co., 85 Ill. 2d 124, 129 (1981); Ill. Const. art. 1, § 13; Martin v. Heinold Commodities, Inc., 163 Ill. 2d 33, 72-73 (1994).

In Illinois, employers who terminate employees on account of jury service may be found in contempt of court: “There is no question that such conduct on the part of the employer would be contemptuous.” Vitucci at 172; see also Palmateer at 129. This comports with principles enunciated in the Illinois Constitution which reflects public policy to protect the sanctity of the jury system: “[t]he right of trial by jury as heretofore enjoyed shall remain inviolate.” Ill. Const. art. 1, § 13.

Aside from Illinois, judicial authority to protect jury service is universally recognized throughout the United States, as seen in Eddins v. Geneva Pharmaceuticals, Inc., 877 F. Supp. 413, 424-25 (E.D. Tenn. 1994), where the court upheld the plaintiff-juror’s right to seek damages from his employer for wrongful termination for jury service; Brown v. MFC Finance Company of Oklahoma, 838 P.2d 524, 526 (Okla. App. 1992), where the court upheld plaintiff’s recovery of $175,000 for wrongful discharge for jury service; Reuther v. Fowler & Williams, Inc., 386 A.2d 119, 121 (Pa. Super. Ct. 1978), where the court upheld an employee’s right to sue his employer for firing him when he refused to avoid jury service; and Nees v. Hocks, 536 P.2d 512, 512 (Or. 1975), where the Oregon Supreme Court upheld a jury award against an employer for wrongful discharge due to jury service, stating:

[A]ctions by the people, the legislature and the courts clearly indicate that the jury system and jury duty are regarded as high on the scale of American institutions and citizen obligations. If an employer were permitted with impunity to discharge an employee for fulfilling her obligation of jury duty, the jury system would be adversely affected. The will of the community would be thwarted. Id. at 516.

The final question then becomes---when is it appropriate for courts to invoke their contempt powers where a citizen is harmed for rendering jury service? Contempt is appropriate where a person affects the court’s process in a way that may be “calculated to . . . hinder or obstruct a court in the administration of justice . . . .” People v. Gholson, 412 Ill. 2d 294, 298 (1952). The court’s contempt power is not dependent on any constitutional or legislative grant, but rather it is essential to the administration of justice. 47th & State Currency Exch.. v. B. Coleman, 56 Ill. App. 3d 229, 233 (1st Dist. 1977). It has long been considered that the “power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of judgments, orders, and writs of the courts, and consequently to the due administration of justice.” Ex Parte Robinson, 86 U.S. 505, 510 (1873).

In the final analysis, the right of a jury trial inherently guarantees that the jury will be fairly drawn from a cross section of society. See People v. Payne, 99 Ill. 2d 135, 138 (1983). Working citizens compose an integral part of that cross section. Therefore, the discharge of an employee for having served on a jury implicitly infringes upon the litigant’s right to a fair trial, society’s right to provide a fair trial, and the citizen’s right to freely participate in the jury system, which is the cornerstone of our justice system in an open and democratic society.