CACI No. 2612. Affirmative Defense - Employment Would Have Ceased

Judicial Council of California Civil Jury Instructions (2024 edition)

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2612.Affirmative Defense - Employment Would Have Ceased
[Name of defendant] claims that [he/she/nonbinary pronoun/it] was not
required to allow [name of plaintiff] to return to work when
[his/her/nonbinary pronoun] [family care/medical] leave was over because
[his/her/nonbinary pronoun] employment would have ended for other
reasons. To succeed, [name of defendant] must prove both of the
1. That [name of defendant] would have [discharged/laid off] [name of
plaintiff] if [he/she/nonbinary pronoun] had continued to work
during the leave period; and
2. That [name of plaintiff]’s [family care/medical] leave was not a
reason for [discharging [him/her/nonbinary pronoun]/laying [him/
her/nonbinary pronoun] off].
An employee on [family care/medical] leave has no greater right to the
employee’s job or to other employment benefits than if that employee
had continued working during the leave.
New September 2003; Revised May 2020
Sources and Authority
Limitations of Right to Reinstatement. Cal. Code Regs., tit. 2, § 11089(c)(1).
“Section 11089, subdivision (c)(1) states in part: ‘An employee has no greater
right to reinstatement or to other benefits . . . of employment than if the
employee had been continuously employed during the CFRA leave period.’ This
defense is qualified, however, by the requirement that ‘[a]n employer has the
burden of proving, by a preponderance of the evidence, that an employee would
not otherwise have been employed at the time reinstatement is requested in order
to deny reinstatement.’ (Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909, 919
[182 Cal. Rptr. 3d 644, 341 P.3d 438].)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-B, Family and
Medical Leave Act (FMLA)/California Family Rights Act (CFRA), ¶¶ 12:1189,
12:1191 (The Rutter Group)
1 Wilcox, California Employment Law, Ch. 8, Leaves of Absence, § 8.30[4]
(Matthew Bender)
2613-2619. Reserved for Future Use

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