California Civil Jury Instructions (CACI)
2613. Affirmative Defense - Key Employee
[Name of defendant] claims that [he/she/it] was not required to return [name of plaintiff] to work in the same or a comparable job following [family care/medical] leave because [he/she] was employed in a highly paid, essential position. To succeed on this claim, [name of defendant] must prove all of the following:
1. That [name of plaintiff] was a salaried employee and among the highest paid 10 percent of [name of defendant]'s employees [employed within 75 miles of [his/her] workplace];
2. That [name of defendant]'s refusal to return [name of plaintiff] to work in the same or a comparable job was necessary to prevent severe economic injury to [name of defendant]'s [business] operations; [and]
3. That when [name of defendant] decided that [name of plaintiff] would not be allowed to return to [his/her] job or a comparable position, [name of defendant] notified [name of plaintiff] of that decision; [and]
[4. That [name of defendant] gave [name of plaintiff] a reasonable opportunity to return to work after notifying [name of plaintiff] of [his/her/its] decision.]
Directions for Use
Element 4 is applicable only when the employer notifies the employee of its decision to refuse to reinstate plaintiff after family care or medical leave has commenced.
Sources and Authority
Government Code section 12945.2(r) provides, in part:
(1) [A]n employer may refuse to reinstate an employee returning from leave to the same or a comparable position if all of the following apply:
(A) The employee is a salaried employee who is among the highest paid 10 percent of the employer's mployees who are employed within 75 miles of the worksite at which that employee is employed.
(B) The refusal is necessary to prevent substantial and grievous economic injury to the operations of the employer.
(C) The employer notifies the employee of the intent to refuse reinstatement at the time the employer determines the refusal is necessary under subparagraph (B).
(2) In any case in which the leave has already commenced, the employer shall give the employee a reasonable opportunity to return to work following the notice prescribed by subparagraph (C).
1 Wilcox, California Employment Law (1989) Leaves of Absence, § 8.30 (Matthew Bender)
(New September 2003)