Q. Several employees have requested leave to be witnesses in an upcoming criminal trial. This is the busiest time of year for me. Can I discipline these employees in accordance with my absentee policy for missing work to attend this trial? If they know that’s what I plan to do, maybe they can avoid being witnesses.
A. It depends. In criminal cases, employers are restricted from discharging or disciplining employees for taking leave to be a witness if the employee is acting in response to a valid subpoena, but not if the employee is the defendant.
In civil cases, as long as an employee is acting in response to a valid subpoena, an employer is restricted from discharging or disciplining the employee for taking leave to comply with the subpoena.
Under Georgia law, when an employee is wrongfully disciplined or discharged because he or she takes leave to comply with a subpoena, such an employee can seek remedies and penalties from his or her employer in the form of actual damages and attorneys’ fees. However, an employer may require reasonable notice of expected absences.
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