California Civil Jury Instructions (CACI)

2603. "Comparable Job" Explained

"Comparable job" means a job that is the same or close to the employee's former job in responsibilities, duties, pay, benefits, working conditions, and schedule. It must be at the same or a nearby worksite.

Directions for Use

Give this instruction only if comparable job is an issue under the plaintiff's CFRA claim.

Sources and Authority

Government Code section 12945.2(c)(4) provides: " 'Employment in the same or a comparable position' means employment in a position that has the same or similar duties and pay that can be performed at the same or similar geographic location as the position held prior to the leave."

The Fair Employment and Housing Commission's regulations provide: " 'Employment in a comparable position' means employment in a position which is virtually identical to the employee's original position in terms of pay, benefits, and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority. It must be performed at the same or geographically proximate worksite from where the employee was previously employed. It ordinarily means the same shift or the same or an equivalent work schedule. It has the same meaning as the term 'equivalent position' in [the Family Medical Leave Act] and its implementing regulations." (Cal. Code Regs., tit. 2, § 7297.0(g).)

"[W]hile we will accord great weight and respect to the [Fair Employment and Housing Commission]'s regulations that apply to the necessity for leave, along with any applicable federal FMLA regulations that the Commission incorporated by reference, we still retain ultimate responsibility for construing [CFRA]." (Pang v. Beverly Hospital, Inc. (2000) 79 Cal.App.4th 986, 994-995 [94 Cal.Rptr.2d 643].)

Secondary Sources

1 Wilcox, California Employment Law (1989) Leaves of Absence, § 8.30[1]-[2] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.32[6][h] (Matthew Bender)

(New September 2003)