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Who is a ‘key employee’ under the FMLA?

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in Employment Law,FMLA Guidelines,Human Resources

Q. The Department of Labor’s form for the Employer’s Response to Employee Request for Family or Medical Leave (WH-381) inquires whether the worker is a “key employee.” How should I mark those boxes? I consider most of our workers to be 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, a “key employee” is defined as a salaried employee who is among the highest-paid 10% of all workers employed within 75 miles of the work site. Thus, it’s unlikely that everyone you have identified as a key employee actually meets this definition.

You could modify the form by adding an asterisk next to the “key employee” box. Rather than use the citation to the regulations (which is on the government’s form and will be meaningless to the employees), set forth the definition of a “key employee” on the bottom of the form.

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