The Essential Guide to Family & Medical Leave

234 | the essential guide to family and medical leave
• Salaried employee. The definition of a salaried employee comes from the
Fair Labor Standards Act (FLSA). A salaried employee earns the same
amount each week, regardless of how many hours the employee works or
the quality or quantity of work performed. To be salaried, the employee
must earn at least $455 per week.
• Highest-paid 10%. To find out whether an employee is in the highest-paid
10% of the workforce, divide the employee’s year-to-date compensation
by the total number of weeks worked in the year, including any weeks
during which the employee took paid leave. You must include wages,
premium pay, incentive pay, and bonuses. You don’t have to include any
amount that will be determined only in the future (such as the value of
company stock options awarded during the year).
• Company employees within 75 miles of the employee’s worksite. In determining
which employees work within 75 miles, you should use the same
rules used to determine an employee’s eligibility for FMLA leave, explained
in Chapter 3. Count all employees, whether they are eligible for
FMLA leave or not.
You must determine whether someone is a key employee as of the date he
or she requested leave.
Initial Notice to Key Employee
If you believe that you might deny reinstatement to a key employee, you
must notify the employee, in writing, that he or she qualifies as a key
employee and might not be reinstated if the company determines that
reinstatement will cause the company substantial and grievous economic
injury. Typically, you must give this notice when the employee requests leave
or starts leave, whichever is sooner. If you need some time to determine
whether the employee is a key employee, you must give this notice as soon
as is practicable. If you don’t, you must reinstate the employee—no matter
what damage it causes your company.
The individual notice form described in Chapter 7 includes a box to check
indicating that the employee is a key employee.