Moira Kelly received an extension of her, with one caveat. Her company informed her by letter that she was considered a "key employee" under the Act ( ). Consequently, her position could be permanently filled during her leave.
Under the FMLA, a key employee is defined as being among the highest-paid 10 percent of employees within a 75-mile radius of the facility at which the employee works. Companies can refuse to restore key employees to their previous job if it would cause a "substantial and grievous economic injury" to the firm.
Kelly thought the notice meant that she was immediately terminated, so she demanded severance benefits. The company responded that she hadn't been terminated, just that she could be, under the FMLA. Still, she headed to court.
The court tossed out Kelly's claim. It said she was a "key employee" and that her company's notification that it could not guarantee her original position was legal and did not equal termination. (Kelly v. DecisionOne Corp., 00-CV-32, E.D. Pa., 2000)
Advice: In this case, the company explained to the worker, not once, but twice, that her job could be filled, not would be filled. But some workers are hellbent on suing, regardless of the facts. While it won the case, the company still had to spend a lot of money on lawyers.
The intricacies of the FMLA make it vital that you effectively communicate the rules and restrictions of the law to your managers and other employees. Distribute an up-to-dateto all employees and post it in a conspicuous place. Periodically train supervisors in . Develop form letters to send automatically to all employees who request .
Remember that FMLA leave requests often involve Americans with Disabilities Act and workers' compensation issues. To make matters worse, the government's new ergonomics standard will provide job protection and benefits that often eclipse those provided under the FMLA. Considering the complexity of the law and the high stakes involved, it's often wise to contact an experienced employment law attorney.
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