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.
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].)