California Civil Jury Instructions (CACI) (2017)

2612. Affirmative Defense - Employment Would Have Ceased

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2612.Affirmative Defense—Employment Would Have Ceased
[Name of defendant] claims that [he/she/it] was not required to allow
[name of plaintiff] to return to work when [his/her] [family care/medical]
leave was over because [his/her] 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] 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]/laying [him/her] off].
An employee on [family care/medical] leave has no greater right to his
or her job or to other employment benefits than if he or she had
continued working during the leave.
New September 2003
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 ¶¶ 12:1189, 12:1191
(The Rutter Group)
1 Wilcox, California Employment Law, Ch. 8, Leaves of Absence, § 8.30[4]
(Matthew Bender)