Right to Reinstatement: Guarantee of Reinstatement; Refusal to Reinstate; Permissible Defenses.
(a) Guarantee of Reinstatement.
Upon granting the CFRA leave, the employer shall guarantee to reinstate the employee to the same or a comparable position, subject to the defenses permitted by section 11089(c)(1) and (c)(2), and shall provide the guarantee in writing upon request of the employee. It is an unlawful employment practice for an employer, after granting a requested CFRA leave, to refuse to honor its guarantee of reinstatement to the same or a comparable position at the end of the leave, unless the refusal is justified by the defenses stated in section 11089(c)(1) and (c)(2).
(b) Refusal to reinstate.
(1) Definite Date of Reinstatement.
Where a definite date of reinstatement has been agreed upon at the beginning of the leave, a refusal to reinstate is established if the Department or employee proves, by a preponderance of the evidence, that the leave was granted by the employer and that the employer failed to reinstate the employee to the same or a comparable position by the date agreed upon.
(2) Change in Date of Reinstatement.
If the reinstatement date differs from the employer's and employee's original agreement, a refusal to reinstate is established if the Department or employee proves, by a preponderance of the evidence, that the employer failed to reinstate the employee to the same or a comparable position within two business days, where feasible, after the employee notifies the employer of his or her readiness to return, as required by the FMLA regulations.
(c) Permissible defenses.
(1) Employment Would Have Ceased
An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the CFRA leave period. An 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.
(A) If an employee is laid off during the course of taking CFRA leave and employment is terminated, the employer's responsibility to continue CFRA leave, maintain group health plan benefits and reinstate the employee ceases at the time the employee is laid off, provided the employer has no continuing obligations under a collective bargaining agreement or otherwise.
(2) ?Key Employee.?
A refusal to reinstate a ?key employee? to his or her same position or to a comparable position is justified if the employer shows, by a preponderance of the evidence, that all of the following conditions exist:
(A) The employee requesting the CFRA leave is a salaried employee, and
(B) The employee requesting the leave is among the highest paid 10 percent of the employer's employees who are employed within 75 miles of the worksite at which that employee is employed at the time of the leave request, and
(C) The refusal to reinstate the employee is necessary because the employee's reinstatement will cause substantial and grievous economic injury to the operations of the employer, and
(D) The employer notifies the employee of the intent to refuse reinstatement at the time the employer determines that the refusal is necessary under (C) above, and
(E) 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 in (D) above.
Government Code 12935(a)
Government Code 12945.2
29 U.S.C. 2601 et seq.
29 C.F.R. 825
(Amended by Register 2013, No. 40.)