CACI 2612 Affirmative Defense—Employment Would Have Ceased

California Civil Jury Instructions CACI

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 following:

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.

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)