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

Judicial Council of California Civil Jury Instructions (2020 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)
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