FMLA: Who is considered a ‘key employee’?

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in FMLA Guidelines,Human Resources

Q. On the U.S. Department of Labor’s Form WH-381 “Employer’s Response to Employee,” there is a line that asks whether the worker is a “key employee” as described in the FMLA regulations. I always check the box indicating that the worker is a key employee. How should I mark these boxes? I consider most of our workers key employees, and I do not want to offend anyone by suggesting that they are not.

A. The FMLA form is misleading and your concern is justified. Under the FMLA and the California Family Rights Act, a “key employee” is defined as a salaried employee who is among the highest paid 10% of all employees employed within 75 miles of the work site.

Thus, it is unlikely that all the employees you have identified as key employees actually meet that definition.

One way to avoid possible morale issues is to modify the form by adding an asterisk next to the “key employee” box. Then spell out the definition of “key employee” at the bottom of the form. Don’t simply cite the definition in the FMLA regulations—that will probably be meaningless to most employees.

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