(a) A key employee is a salaried FMLA-eligible employee who is among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee's worksite.
(b) The term salaried means paid on a salary basis, as defined in 29 CFR 541.602. This is the Department of Labor regulation defining employees who may qualify as exempt from the minimum wage and overtime requirements of the FLSA as executive, administrative, professional, and computer employees.
(c) A key employee must be among the highest paid 10 percent of all the employees—both salaried and non-salaried, eligible and ineligible—who are employed by the employer within 75 miles of the worksite.
(1) In determining which employees are among the highest paid 10 percent, year-to-date earnings are divided by weeks worked by the employee (including weeks in which paid leave was taken). Earnings include wages, premium pay, incentive pay, and non-discretionary and discretionary bonuses. Earnings do not include incentives whose value is determined at some future date, e.g., stock options, or benefits or perquisites.
(2) The determination of whether a salaried employee is among the highest paid 10 percent shall be made at the time the employee gives notice of the need for leave. No more than 10 percent of the employer's employees within 75 miles of the worksite may be key employees.
Notes of Decisions
DePaula v. Easter Seals El Mirador, 859 F.3d 957 (10th Cir. 2017).
“” 29 C.F.R. § 825.217 . 29 . Mr. DePaula also attempts to raise two other pretext arguments on appeal: (1) his coworkers’ statements show that Ms.”
Gary Waag v. Sotera Def. Solutions, Inc., 857 F.3d 179 (4th Cir. 2017).
“Waag floats another interference argument based on the FMLA’s "key employee” exemption, see 29 C.F.R. § 825.217 (a), which permits an employer to deny restoration completely if "such denial is necessary to prevent substantial and grievous economic injury to the operations of the…”
Daugherty v. Wabash Ctr., Inc., 577 F.3d 747 (7th Cir. 2009).
“He suggests that his designation as a “key employee,” see 29 C.F.R. § 825.217 , was evidence of Wabash’s discriminatory animus.”
Woodford v. Cmty. Action of Greene Cnty., Inc., 268 F.3d 51 (2d Cir. 2001).
“While the FMLA guarantees leave for eligible employees, it also permits employers to deny reinstatement for certain highly paid employees, called “key employees,” see 29 C.F.R. § 825.217 , to their position at the end of their leave if reinstatement would cause “substantial and…”
Daugherty v. Wabash Ctr., Inc., 572 F. Supp. 2d 1003 (N.D. Ind. 2008).
“To be a key employee, the employee’s income must be in the top 10% of the company, 29 C.F.R. § 825.217 , and the absence of the employee must cause the employer a substantial and grievous loss, 29 C.”
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