Long Form Demand Letter Template (Page 2 of 6) in pdf

[name of company president]

PERSONAL AND CONFIDENTIAL

[name of company]

PRIVILEGED OFFER TO COMPROMISE

[date]

(California Evidence Code §§1152, 1154)

Page 2

Both the California Family Rights Act (“CFRA”) and the federal Family and Medical Leave Act

(“FMLA”) provide for “guarantees” of reinstatement upon the termination of an employee’s medical

leave. If the employee’s original position is no longer available for reasons independent of her

leave, then the employer must offer her a comparable position. When an employer deprives an

employee of her substantive “guarantee” that she be reinstated to the same or comparable

position – commonly referred to as an “entitlement” claim – the employer is “strictly liable” for

violating CFRA/FMLA. The employer’s intent is completely irrelevant. As the Court stated very

recently in Smith v. Diffee Ford-Lincoln Mercury, Inc., __ F.3d __, 2002 WL 1753175 at *3(10

Cir. July 29, 2002):

The “entitlement theory is derived from the . . . creation of substantive rights. If an

employer interferes with the . . . right to medical leave or to reinstatement

following the leave, a deprivation of this right is a violation regardless of the

employer’s intent.”

See also Cross v. Southwest Recreational Indus., 17 F. Supp. 2d 1362, 1369 (N.D. Ga. 1998)

(“Because the FMLA imposes strict liability upon an employer who denies FMLA benefits to a

qualified employee, a plaintiff pursuing such a claim need only prove that the employer violated

the statute and need not prove that the employer did so with any particular intent”); Mora v. Chem-

Tronics, 16 F. Supp. 2d 1192, 1218-19 (S.D. Cal. 1998)(under CFRA and FMLA, employer “is

strictly liable regardless of its subjective intent”); Blankenship v. Buchanan Gen. Hosp., 140 F.

Supp. 668, 672 (W.D. Va. 2001)(entitlement claims “governed by a strict liability standard”).

Under both the CFRA and the FMLA, an employee’s right to reinstatement is dictated by what

would have happened to her if she had been “continuously employed” during the leave period. 2

Cal. Code Reg. §7297.2(c)(1); 29 C.F.R. §825.216(a), (b). Any changes to her position must be

made for reasons independent of her leave. In other words, if the employee would have remained

in her position had she been continuously employed (i.e, had she never taken leave), then she is

entitled to be reinstated to that position. If, conversely, the employer would have made a decision

to eliminate her position even if she had remained in the workplace, then she is entitled to be

transferred to a comparable position.

Although the evidence suggests that [name of client] was replaced by [name of replacement]

it appears that the Company intends to argue that it “eliminated” her position.

Even assuming

that a trier of fact would accept the Company’s argument, the Company is nonetheless in violation

of the law because its stated reasons for “eliminating” [name of client]’s position are not

independent of her leave. Indeed, [name of supervisor] confirmed twice to [name of client] that the

Company purportedly determined during [name of client]’s leave what it had been unable to

determine while she was in the workplace (e.g., that her position was unnecessary). Indeed,

1 Under CFRA and the FMLA, “An employee is entitled to reinstatement [to the same or

comparable position] even if the employee has been replaced or his or her position has been restructured

to accommodate the employee’s absence.” 29 C.F.R. §825.214(a). If the employee is no longer qualified to

perform the restructured position, “the employee shall be given a reasonable opportunity” to “attend a

necessary course” or to receive training “upon return to work.” 29 C.F.R. §825.215(b). Even assuming,

arguendo, that the Company permissibly restructured [name of client]’s position by eliminating her position

and consolidating it into a new position, the Company nonetheless failed to provide her with a “reasonable

opportunity” – or any opportunity – to train for the new position.

2 Should the evidence establish that [name of client] was replaced, such conduct would establish

a prima facie violation of the FMLA and the CFRA.

Long Form Demand Letter Template Page 2

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