CACI No. 2613. Affirmative Defense - Key Employee

Judicial Council of California Civil Jury Instructions (2017 edition)

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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.]
New September 2003
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
Sources and Authority
• Limitation on Right to Reinstatement: Key Employee. Government Code
section 12945.2(r).
Secondary Sources
Chin et al., Cal. Practice Guide: Employment Litigation ¶¶ 12:1167–12:1169,
12:1171, 12:1174 (The Rutter Group)
1 Wilcox, California Employment Law, Ch. 8, Leaves of Absence, § 8.30[5]
(Matthew Bender)
2614–2619. Reserved for Future Use

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