The 'Key Employee' Exception: Are You at Risk?
High earners, beware. A rare FMLA loophole allows employers to deny job restoration to the top 10% of salaried staff.
Introduction
You are a VP or Director. You take FMLA. You return to find your desk cleared out. Legal? Possibly, if you are a "Key Employee."
Who is a Key Employee?
1. **Salaried:** Paid on a salary basis. 2. **Top 10%:** Among the highest-paid 10% of all employees within 75 miles.
The Rule
Your employer generally cannot deny you *leave*, but they CAN deny you **restoration** (your job back) if: - Restoring you would cause "substantial and grievous economic injury" to the company operations.
The Notification Requirement
THEY MUST TELL YOU. An employer cannot pull this card at the last minute. They must notify you **in writing** at the time you request leave that you are a Key Employee and that restoration might be denied.
Conclusion
If you receive a "Key Employee" notice, proceed with extreme caution. Your job is not as safe as others.
*LEGAL DISCLAIMER: The information provided on this website is for general informational purposes only and is not intended to be legal advice.*
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