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FMLA - Key Employee Exception Arkansas

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  • FMLA - Key Employee Exception Arkansas

    I understand the key employee exception under FMLA in regards to reinstating said employee to their former position...
    To deny a key employee’s reinstatement, an employer has to prove that allowing the employee to return will create a crippling financial burden for the business. If the employee’s position in the company is vital to the day-to-day operations, then the employer may have to cover the position with a permanent replacement. This means the key employee’s position is no longer available. Creating an equal position may not be practical for the company’s operations, and it may come at a cost that is too steep for the company to bear. If this is the case, the company must notify the employee in writing of the intent to deny job restoration.
    However, my question is this: in order for the business to justify a "financial burden", do they have to replace the "key employee" while they are on FMLA leave to deny reinstatement or can the company simply say that they can't justify the expense anymore because another manager (who had been employed 5 mths prior to said employee taking leave) "took over their duties" while they were on leave & now they just don't want to pay for two "highly paid" employees anymore? I will mention that the FMLA event is for a pregnancy and higher mgmt. had already expressed concerns prior to leave about how "inconvenient" it will be once the employee returns because they won't be able to dedicate the same amount of time to her job with all the Dr. Appts & how kids are always sick. Another thing to mention is that when FMLA paperwork was requested, employer noted that she was a "key employee" but the question where it asks whether they intend to reinstate employee was left blank. How soon does employer have to notify employee of denial of reinstatement?

  • #2
    Is this employee currently on FMLA? When were they notified that the job would no longer be held? Whether the company is happy about granting leave or not is immaterial. No employer is ever happy that someone is going to be gone for 3 months. If this person is a key employee and they were informed of such, then the law doesn't specify an exact timeframe when notice must be given. Ideally it should be stated when the employee requests leave but the law does recognize that is not always possible.

    There is no bright line for economic harm. Not being able to afford two people at that level could very well meet that standard.


    you should read over the section below.

    § 825.219 Rights of a key employee.
    top
    (a) An employer who believes that reinstatement may be denied to a key employee, must give written notice to the employee at the time the employee gives notice of the need for FMLA leave (or when FMLA leave commences, if earlier) that he or she qualifies as a key employee. At the same time, the employer must also fully inform the employee of the potential consequences with respect to reinstatement and maintenance of health benefits if the employer should determine that substantial and grievous economic injury to the employer's operations will result if the employee is reinstated from FMLA leave. If such notice cannot be given immediately because of the need to determine whether the employee is a key employee, it shall be given as soon as practicable after being notified of a need for leave (or the commencement of leave, if earlier). It is expected that in most circumstances there will be no desire that an employee be denied restoration after FMLA leave and, therefore, there would be no need to provide such notice. However, an employer who fails to provide such timely notice will lose its right to deny restoration even if substantial and grievous economic injury will result from reinstatement.

    (b) As soon as an employer makes a good faith determination, based on the facts available, that substantial and grievous economic injury to its operations will result if a key employee who has given notice of the need for FMLA leave or is using FMLA leave is reinstated, the employer shall notify the employee in writing of its determination, that it cannot deny FMLA leave, and that it intends to deny restoration to employment on completion of the FMLA leave. It is anticipated that an employer will ordinarily be able to give such notice prior to the employee starting leave. The employer must serve this notice either in person or by certified mail. This notice must explain the basis for the employer's finding that substantial and grievous economic injury will result, and, if leave has commenced, must provide the employee a reasonable time in which to return to work, taking into account the circumstances, such as the length of the leave and the urgency of the need for the employee to return.

    (c) If an employee on leave does not return to work in response to the employer's notification of intent to deny restoration, the employee continues to be entitled to maintenance of health benefits and the employer may not recover its cost of health benefit premiums. A key employee's rights under FMLA continue unless and until the employee either gives notice that he or she no longer wishes to return to work, or the employer actually denies reinstatement at the conclusion of the leave period.

    (d) After notice to an employee has been given that substantial and grievous economic injury will result if the employee is reinstated to employment, an employee is still entitled to request reinstatement at the end of the leave period even if the employee did not return to work in response to the employer's notice. The employer must then again determine whether there will be substantial and grievous economic injury from reinstatement, based on the facts at that time. If it is determined that substantial and grievous economic injury will result, the employer shall notify the employee in writing (in person or by certified mail) of the denial of restoration.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

    Comment


    • #3
      Originally posted by ElleMD View Post
      (a) An employer who believes that reinstatement may be denied to a key employee, must give written notice to the employee at the time the employee gives notice of the need for FMLA leave (or when FMLA leave commences, if earlier) that he or she qualifies as a key employee. At the same time, the employer must also fully inform the employee of the potential consequences with respect to reinstatement and maintenance of health benefits if the employer should determine that substantial and grievous economic injury to the employer's operations will result if the employee is reinstated from FMLA leave. If such notice cannot be given immediately because of the need to determine whether the employee is a key employee, it shall be given as soon as practicable after being notified of a need for leave (or the commencement of leave, if earlier). It is expected that in most circumstances there will be no desire that an employee be denied restoration after FMLA leave and, therefore, there would be no need to provide such notice. However, an employer who fails to provide such timely notice will lose its right to deny restoration even if substantial and grievous economic injury will result from reinstatement.
      They are not on leave yet, however, the employer has already determined that the employee is in fact a "key employee" by checking the box on the employee notice FMLA paperwork, wouldn't they also have to notify of their intent to not reinstate the employee at the time of leave based on above? And should the fact that the other higher ranking mgr has been employed for 5 mths prior to the leave with no "financial burden" and claiming only after said employee was on leave they were no longer in a position to reinstate be a cause for concern? Could this be seen as discrimination based on her pregnancy that the intent is to demote her to lower paying position or not reinstating her at all because of their comments made before leave was granted? Just saying they can't afford to pay her anymore seems like an easy out on the employers part.

      Comment


      • #4
        I'm not sure what your role is in all this or how you know what the employer's finances are. Reinstatement is always best but if she is properly identified as a key employee it is not required if it would cause economic harm. If she hasn't gone on leave yet then it is not too late for the employer to let her know she will not be reinstated. If they haven't let her know, how does she know that she will not be reinstated? If she just doesn't know, she should ask. Speculating on what might happen gets her no where.
        I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

        Comment


        • #5
          One thing to mention that may be lost in the shuffle here.

          Key employees are strictly defined as employees whose earnings place them in the top 10% of the company. It's not a role they fill - it's strictly determined by the wages earned. That should be very easy to determine, and if the person requesting FMLA is not sure of the designation, since it impacts reinstatement, there should be quantifiable evidence of this before going on leave.

          higher mgmt. had already expressed concerns prior to leave about how "inconvenient" it will be once the employee returns because they won't be able to dedicate the same amount of time to her job with all the Dr. Appts & how kids are always sick.

          Someone else please take this one, before I get up on a soapbox.

          Comment


          • #6
            Still going to go with the employee (who isn't the OP) needs to talk to her employer first. No one has said she will not be reinstated only that she is a key employee. I've had the highest paid and highest ranking employee here go on leave and reinstated. Key employee does not mean that they will not only that they have that as a potential option.
            I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

            Comment


            • #7
              Agree with Elle. The FMLA law says may deny restoration .....
              Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

              Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

              Comment


              • #8
                Discrimination?

                Ok, so to answer a question above, this is a very good friend of mine where I actually used to be employed also. Now, as to the question about how does she know she is not going to be reinstated...well, based on comments made after she told them about the pregnancy and then 2 mths ago creating a more senior position & hiring a male employee to "manage" one of the divisions she had been in charge of gave the impression something was going to happen. She is scheduled to take maternity leave in a little over a month and they just recently gave her a performance review (which has never taken place before) where they informed her that they would not be reviewing her as a "Manager" because it would be a "beat-up session" and they didn't want to do that...instead, they informed her that she would no longer be a Manager of either division and was going to be a Senior Rep. They would let her keep her salary, so "she could prepare for the change", until after she returned from maternity leave but when she returned her salary would be decreased by a considerable amount. They do not have a pattern of behavior established based on pregnancy related issues only because this additional division was only created based on her coming to work there and bringing experience in this field to the table.

                Comment

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