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For FMLA purposes, who’s a ‘key employee’?

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in FMLA Guidelines,Human Resources

Q. On the U.S. Department of Labor’s Form WH-381 (Notice of Eligibility and Rights & Responsibilities), there is a line that asks if the worker is a “key employee” as defined in the FMLA. I don’t want to offend any of our employees, so I always check the “yes” box.  Am I doing the right thing?

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 workers employed within 75 miles of the work site.

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

One way to avoid possible morale issues is to modify the form by adding an asterisk next to the “key employee” box. Then define “key employee” on the bottom of the form. The form already contains the statute language, but it will be meaningless to most employees.

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