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Tell ‘key employees’ right away if denying job reinstatement

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in FMLA Guidelines,Human Resources

Issue: FMLA lets you deny post-leave reinstatement, in some situations, to highly paid "key employees."

Benefit: That provision can shelter your organization from economic injury caused by the absence of vital employees.

Action: Give employees written notice as soon as possible that they qualify as "key" personnel. 

When employees take leave under the Family and Medical Leave Act (FMLA), they're usually guaranteed reinstatement to their jobs. One exception: You can designate a class of highly paid, salaried "key employees" to whom you can deny reinstatement. (To qualify, the person's salary, including bonuses, must lie in the top 10 percent of your organization's pay scale.)

While you can't deny key employees from actually taking FMLA leave, you can deny them from returning to their jobs if their reinstatement would cause your business "substantial economic injury."

What does that mean? Minor inconveniences won't cut it. If you can prove that leaving a key employee's job open threatens the long-term viability of your operation, you'll be more likely to win in court.

Advice: Notify key employees, in writing and as soon as they notify you of their intention to take FMLA leave, that they qualify as key employees and, as such, could lose their right to reinstatement.

Recent case: Soon after a Marriott executive housekeeper took FMLA leave, the company sent her a letter asking when she would return to work. The letter explained that she was a "key employee" necessary to the facility's operation. (She was the hotel's third-highest-paid employee.) When she couldn't provide a time estimate, the hotel replaced her. The woman tried to return to work but was denied.

She sued, alleging an FMLA violation, but lost. Marriott proved that it had notified the woman of her "key" status and, thus, reserved the right to replace her. (Oby v. Baton Rouge Marriott, No. 03-495-B-M1, M.D.La., 2004)

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