As a general rule, the Fair Labor Standards Act does not require an employer to pay an employee’s travel time between home and their regular place of work. However, Tennessee employers should be aware of another travel time issue – Are employees serving on jury duty entitled to compensation for travel time to and from jury duty when the employee is not compensated for travel as part of the employee’s usual compensation? According to an Opinion just issued by the Tennessee Attorney General, the answer is YES, “subject to certain limited exceptions.”

TCA 22-4-106(b) requires, in pertinent part:

(b) Notwithstanding the excused absence as herein provided in subsection (a), the employee shall be entitled to the employee's usual compensation received from such employment; however, the employer has the discretion to deduct the amount of the fee or compensation the employee receives for serving as a juror. Moreover, no employer shall be required to compensate an employee for more time than was actually spent serving and traveling to and from jury duty

On its face, the new Opinion seems straightforward – employees should be paid their travel time for jury duty even if that same travel time would not be compensable if the employee was traveling to or from work. However, as with most broad “clarifications,” this Opinion leaves several open questions.

What if the travel and jury service time exceeds the employee’s usual number of hours worked? The Opinion provides an example of an employee traveling 2 hours and spending 4 hours in jury duty. Since the Opinion’s analysis does not take into consideration how long an employee would normally work, it would appear the Opinion interprets the phrase “usual compensation” as the employee’s rate of pay, rather than the employee’s amount of pay. An employee who lives an hour away from work and works an 8-hour shift would “usually” be compensated for 8 hours. Under the new Opinion, if the employee also lives an hour away from court and sat in court for 8 hours, it would appear the employee would be entitled to 10 hours of pay – 2 hours more than the employee’s “usual compensation.” The new Opinion does reference an earlier Opinion which states that what constitutes “usual compensation” would “necessarily vary on a case-by-case basis and would be a question of fact.” However, the AG makes it clear that the jury pay statute is to be given “a broad and remedial effect to correct the injustice of compelling workers to sustain a financial loss because of their service on a jury.”

Does it matter whether the employee is paid on an hourly or a salaried basis? The Opinion does not specifically address this. Again, the one example given presumes an employee being paid on an hourly basis. The only reference to salaried employees confirms the employer’s ability to pro rate an employee’s salary if jury duty is less than the employee’s regular work day. Since the essence of a salary is a set amount regardless of the number of hours worked, it would be logical to infer that this new Opinion should only affect payment of hourly workers, but no such limitation was stated.

The requirement of payment for jury duty does not apply to employers that employ less than five people on a regular basis, and employees who have been employed on a temporary basis for less than six months. Unfortunately, the Opinion does not say whether any other “certain limited exceptions” might also apply in this context. Regardless, it is important that Tennessee employers review their policy regarding pay for jury duty and ensure they are made aware of, and compensate employees for, travel time as well as time spent serving jury duty.