Lose your job or lose your freedom?

Imagine that you were arrested on an alleged misdemeanor offense and the court has allowed your release from custody on a promise to appear (own-recognizance) to your scheduled court date. You work full-time, are the primary or only breadwinner of your family, and you live on a low-wage paycheck-to-paycheck basis. You’ve told your boss in advance that you have a mandatory court proceeding to attend and, based on that conversation, you now fear that your boss will fire you if you miss that day of work to attend court. As the day of your court hearing approaches, you must make a critical decision between attending court or attending work. No matter which one you choose, the consequences for not choosing the other are grave; if you miss work you will potentially get fired and struggle with meeting basic life necessities for you and your family, if you miss court an arrest warrant will likely be issued against you along with additional charges pursuant to your failure to appear (FTA).

The Problem

There is no empirical data in California that demonstrates how often individuals fail to appear as a result of fearing employer retaliations. There is also no empirical data to show how often individuals are terminated after they have missed work to attend a court hearing. This data may be difficult to obtain for two reasons: first, employer motives are challenging to track, and second, there is the possibility that employees do not tell their employers about their court dates for a variety of reasons.

A survey in Nebraska of about 8,000 misdemeanants from different counties found that “the highest-rated reasons for non-appearance reflect very practical, instrumental factors (e.g., “had scheduling [or work] conflicts.”) (pdf, go to page 24). The Bail and Release Work Group of Santa Clara County stated that individuals miss court appearances “for many reasons unrelated to a desire to avoid justice—including inability to miss work” (pdf, go to page 20). From both my personal observations in court and my interviews with professionals in the criminal justice system in Santa Clara County, it appears common for defendants to miss their court date out of fear that they will lose their job for missing work. (Class/personal interview with Public Defender Ms. Panteha Saban, 4/13/16. Email interview with pretrial service agent, 4/15/16.) So what if there was legal protection that would prohibit an employer from retaliating against an individual who gave advance notice and missed work in order to attend a mandatory criminal court proceeding?

Current Law

This idea is not far from current California law, and given the individual, social and economic costs at stake it is worth discussing. As the law currently stands, an employer cannot retaliate against an employee for taking time off to serve “as required by law on an inquest jury or trial jury.” Cal. Lab. Code § 230(a). An employer also cannot retaliate against “an employee, including, but not limited to, an employee who is a victim of a crime, for taking time off to appear in court to comply with a subpoena or other court order as a witness in any judicial proceeding.” Cal. Lab. Code § 230(b). This means that out of all the parties mandated to attend court, including jurors, victims of crime, and witnesses, individuals facing criminal allegations are the only group who are not protected from employer retaliation.

Why the Current Law?

The reasons why we protect the former group of individuals is due to our values in economic stability, participation in a civic duty, and our commitment to facilitating the administration of justice. For victims of crime, protection from employer retaliation was intentionally designed so that victims were not forced to choose “between keeping their jobs and appearing in court as a witness to obtain relief;” that victims were not put in a situation where they had “to opt for safety over economic security, or to opt for economic stability over personal safety.” California Bill Analysis, S.B. 56 Assem., 8/18/1999. The presence of victims of crimes, witnesses, and of jurors during a criminal trial is also essential to the functioning of our judicial and democratic system. Victims get protection, witnesses provide those in the judicial system with evidence to resolve the issue at hand, and jurors fulfill their civic duty while affording the accused the right to be tried by a jury of his or her peers.

Should it Extend?

With the problem of mass incarceration and the goal towards rehabilitation, these aforementioned values also apply to individuals who are facing low-level criminal allegations, who are trying to hold down a job, and whose liberty due to failing to appear could be at stake. This is especially true if our long-standing tradition of “innocent until proven guilty” remains in place. Individuals facing a low-level misdemeanor charge, as described in the introductory hypothetical, may be released on their own recognizance if the court finds that there is no public safety or failure to appear concern. One of the factors courts consider in making this determination is the individual’s employment (pdf, go to page 15). Once these individuals are released, they are expected to continue with their daily duties, be productive members of society, and return to court to take accountability for their actions. Thus, while many individuals who are working know they have to take responsibility for their actions, they may be in a position where they must choose between their economic stability (keeping their job) and attending court.

The presence of these individuals at their scheduled court proceedings is crucial to the administration of justice and to make efficient use of limited judicial and county resources. When individuals fail to appear for a hearing, a bench warrant is issued for their arrest. The county and courts bear a heavy burden in terms of time, space, money and many other resources. For example, an annual study for the years 2011 and 2012 in Santa Clara County indicated the number of bench warrants issued for failure to appear and the costs incurred for court hearings and jail beds. Santa Clara County Office of Pretrial Services Report (not available on line). The figures below demonstrate that the average cost of each court hearing is $238 and that when someone gets arrested on a warrant it takes a “minimum of two days in custody, [at an average of $204 a day per jail bed,] to get someone back on calendar and before the Court.” Santa Clara County Office of Pretrial Services Report.

Number of Bench Warrants for FTA Missed Court Appearance               (@ $238) Bed Days in Jail         (@ 2 Days) System Costs
2011 17,004 $4,046,952 $6,937,632 $10,984,584
2012* 12,097 $2,879,086 $4,935,576 $7,814,662
*represents January through September 2012


These numbers do not take into account the many other system costs associated with a failure to appear and the processing of bench warrants, including the labor cost for court staff, judges, attorneys, law enforcement, and jail staff. If a large portion of those failing to appear were not showing up to court due to their inability to miss work, then protection from employer retaliation would likely reduce FTA’s and have significant labor and financial savings.

If California offers protection from employer retaliation for individuals facing criminal allegations, several limitations should be considered in order to avoid imposing a heavy burden on employers. These would include limitations on employees who keep re-offending and the extent of the protection. Although the length of time it takes to adjudicate allegations often depends on the seriousness of the charge, many get resolved at the first scheduled hearing. If they do not get resolved, there is at least more valuable information for all parties to make further determinations. In addition, the legislature would need to determine what type of documentation would be provided to employers to excuse the accused. If witnesses have subpoenas and jurors have a jury duty summons to show to their employers, then it might be necessary to have a general and confidential court note that applies to all employees and demonstrates when the employee is required to attend to court.

This blog post serves to highlight a current dilemma in our criminal justice proceedings where individuals must choose between their responsibility with work and their responsibility with the court. This post is also designed to begin a discussion that incorporates an economic and sociological approach to resolve this issue, such as legislation that would offer the same protection that all others who are mandated to attend court have. Further research is required to consider the best practices to implement such legislation. As our nation seeks criminal justice reform, one place to start is by facilitating the process whereby individuals facing criminal allegations can show up to court to present their defense or take accountability for their actions without putting their economic stability on the line.