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Can I Be Denied FMLA Because I Am A Key Employee? I Need A Lawyer!

On Behalf of | Apr 7, 2015 | Employment Discrimination, Family Medical Leave Claims, Wrongful Termination |

Best Ohio FMLA Attorney Answer: What should I do if my employer won’t give me my job back after my use of FMLA by calling me a “key employee”? Do I qualify for the “key employee” designation under the FMLA? If I was fired today for using FMLA, can I sue for wrongful termination?

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Every day, employees use and seek protection under the Family Medical Leave Act (“FMLA“). FMLA is a federal law that lets covered employees take extended time away from work, to handle certain family or medical needs. (Also read: Do I qualify for FMLA?) Federal law states that an employer is required to provide eligible employees with a maximum of twelve weeks of leave if the employer is a private business engaged in, or affecting, interstate commerce, that employed fifty or more employees in twenty or more weeks in the current or prior calendar year.

Furthermore, an employee who works for a covered employer is eligible for leave if he or she worked for the employer for at least twelve months, and for at least 1,250 hours over the twelve months immediately preceding the need for leave.

Specifically, an eligible employee may take leave:

  • For the birth, adoption, or placement of a child;
  • To care for a spouse, minor, or incompetent child, or parent who has a “serious health condition” (more on this below); or
  • To handle the employee’s own serious health condition that makes him or her unable to work.
Who is the best FMLA lawyer in Ohio? To get a free initial consultation from the top employment law lawyers, call attorney Brian Spitz and the lawyers at Spitz, The Employee’s Law Firm.

Moreover, § 2615 of the FMLA prohibits employers from discharging, discriminating or otherwise retaliating against an employee for exercising his rights under the FMLA. Importantly, when an employee returns from leave granted by the FMLA, he or she is entitled to be restored to his or her former job, or to an equivalent job, with equivalent pay, benefits, and other terms of employment.

But what if the employee is a “key employee”? As set forth by the United States Department of Labor, a “key employee” is “a salaried, FMLA-eligible employee who is among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee’s worksite.

According to the DOL: “In order to deny restoration to a key employee, an employer must determine that restoring the employee to employment will cause ‘substantial and grievous economic injury’ to the operations of the employer, not whether the absence of the employee will cause such substantial and grievous injury.” The DOL then summarizes by stating:

  • “An employer may take into account its ability to temporarily replace or do without the employee on FMLA leave. If permanent replacement is unavoidable, the cost of then reinstating the employee can be considered in evaluating whether substantial and grievous economic injury will occur from restoration.
  • A precise test cannot be set for the level of hardship or injury to the employer which must be sustained. However, minor inconveniences and costs that the employer would experience in the normal course of doing business would certainly not constitute ‘substantial and grievous economic injury.’
  • FMLA’s ‘substantial and grievous economic injury’ standard is different from (and more stringent than) the “undue hardship” test under the Americans with Disabilities Act (ADA) .”

Also important to the “key employee” analysis is the issuance of notice. Specifically, if the employer seeks to enforce the “key employee” designation, it must give written notice to the employee “at the time” that the employee gives notice of the need to use FMLA leave. This notice must include the potential consequences of the designation including the fact that the employee may not have a job waiting for them on the other side of the FMLA leave. The notice must also give a detailed explanation of why the employer believes that restoring the “key employee” would cause substantial and grievous economic injury to the employer.

If the employer fully complies with the notice requirements, it then becomes the employee’s duty to take action upon timely receipt of the notice. According to the DOL:

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 the 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.

After a key employee has been given notice 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 he or she did not return to work in response to the employer’s notice. At that time, the employer must again determine whether there will be substantial and grievous economic injury from reinstatement. If the employer determines that reinstatement would result in substantial and grievous economic injury, the employer must notify the employee in writing (in person or by certified mail) of the denial of restoration.

Let’s look at an example from a March 23, 2015 decision by the United States District Court, E.D. Michigan in Knight v. City of Taylor. The plaintiff employee in this case, Debora Knight began working for the City of Taylor in 1997 as a temporary clerk in the water department. Knight and worked her way up to Director of Human Resources. This job required Knight to perform oversight of benefits, employee relations, union negotiations, risk management, consulting and being a resource for directors, unemployment, and employee transitions.

Because Knight was suffering vasculitis, which is inflammation of the blood vessels that causes changes in the blood vessel walls, she requested intermittent FMLA leave starting on June 21, 2011. The employer deemed Knight eligible for intermittent leave, which was scheduled for June 21 to July 12, 2011. Unfortunately, Knight’s medical condition worsened and she took a continuous FMLA leave starting July 13, 2011.

A week later, her boss sent Knight a letter in which he stated that “[t]o operate without an HR Director through August 15, 2011, will cause the City substantial and grievous injury to its operations. . . . The City is notifying you in advance, that as a key-employee, restoration to the Director of Human Resources may cause substantial and grievous harm, and therefore, restoration may not or will not occur.” (“Key Employee Letter”).

Knight’s FMLA leave ended on September 26, 2011 and she returned to work. About an hour and a half after the start of her first day back, her employer gave Knight notice that her job as HR Director would be terminated in 30 days. Despite having the option of taking another position in the City, Knight opted to leave the City and seek employment elsewhere.

Nearly two years later, right before the statute of limitatins, Knight filed her FMLA retaliation and FMLA interference lawsuit.

In denying the employer’s motion for summary judgment (a request by the defendant to dismiss the case a matter of law before it reaches the jury), the trial court held:

Under the FMLA, employees are entitled to full reinstatement upon their return from leave. Arban v. West Publ. Corp., 345 F.3d 390, 401 (6th Cir. 2003). To prevail on an interference claim and survive summary judgment, the plaintiff must prove that 1) Knight was an eligible employee, 2) the defendant was an employer as defined by the FMLA, 3) Knight was entitled to leave under the FMLA, 4) Knight gave her employer notice of her intention to take leave, and 5) the employer denied her FMLA benefits or interfered with FMLA rights to which she was entitled. Edgar v. JAC Prods., 443 F.3d 501, 507 (6th Cir. 2006). The pertinent question here is whether Knight’s restoration was merely illusory and her benefits were denied in violation of the FMLA. The defendants contend that Knight was properly reinstated under the FMLA….

Establishing the timing of the decision to terminate Knight’s PSC is essential to an assessment of both the interference and retaliation claims. The defendants argue that the decision to terminate the plaintiff’s PSC was made in May 2011, one or two months prior to her taking leave; therefore, she would have lost her job regardless of taking FMLA leave. There is no written documentation supporting the claim that the decision to terminate Knight was made at that time. Instead, the defendants rely exclusively on the testimony of Lamarand and Banas. Knight challenges the credibility of Banas based on conflicting testimony, including her statements in a previous case (Tompos v. City of Taylor, et al., No. 13-13580 (E.D. Mich. 2013)) that she neither knew nor discussed with Lamarand the reasons for Knight’s termination, while her present testimony expresses extensive knowledge of the situation. Lamarand’s testimony that they did not terminate Knight immediately due to his preoccupation with completing the layoffs and the lengthy process of finding and training a replacement is also subject to question. While Lamarand purportedly asked Banas to begin looking for a replacement in May, she did not initiate the search until after Knight had taken (intermittent) leave in late June 2011. A suitable replacement, Ms. Gorski-Schulte, submitted her resume in May and was hired as Interim HR Director in July. Furthermore, according to Banas, the time required to learn how to process layoffs and job eliminations was only a “day or two”, and Gorski-Schulte began processing eliminations on her first day of work on July 25, 2011.

The Sixth Circuit has found under similar circumstances, where an employer “who had been aware of problems with an employee did not decide to fire the employee until she took leave,” may “lead a fact finder to infer that the employee would not have been fired absent her taking leave,” especially when significant doubt has been cast upon the timing of and reasons for termination. Arban, 345 F.3d at 402 (quoting Kohls v. Beverly Enters. Wisconsin, Inc., 259 F.3d 799, 806 (7th Cir. 2001)). In this case, serious doubt has been cast on the timing of the decision to terminate.

Knight, meanwhile, presents significant evidence that she was terminated for reasons connected to her FMLA leave. The Key Employee Letter sent to her from Lamarand in July 2011 is the centerpiece of evidence establishing a causal link. The letter asserts that the absence of the HR Director (Knight) “will cause the City substantial and grievous injury to its operations and its HR functions in particular,” indicating that Knight’s leave would be a cause of her termination….

A “key employee” can be denied reinstatement rights at the conclusion of FMLA leave if denying reinstatement is “necessary to prevent substantial and grievous economic injury to the operations of the employer,” and the employee is “among the highest paid 10% of all employees within 75 miles [of the employee’s work site].” 29 C.F.R. § 825.216(b). As argued by the plaintiff and evidenced in the City payroll, Knight could not lawfully be designated as a key employee since she was not within the top 10% highest paid of all City employees within 75 miles of her work site.

Thus, in this case, sending the Key Employee letter to an employment that was not paid enough to qualify was key evidence that the FMLA played a factor in the employer’s firing of the employee. Another important take-away from this case is that many employment laws lay out several criteria that must be met before it applies. In this case, simply because Knight was really critical to the operation did not allow the employer to use the Key Employee exception because she was not paid enough. Because all of these criteria can get confusing, it is critical to consult with qualified and experienced employment law attorneys.

If you feel that you are being denied leave rights under the Family Medical Leave Act (FMLA) or are being retaliated against for taking medical leave, you should call the right attorney as quickly as possible to schedule a free and confidential consultation. The phone number to contact an Ohio attorney for FMLA help is 866-797-6040. While you focus on your family medical needs, let our FLMA attorneys focus on your medical leave rights.


This employment law website is an advertisement. The materials available at the top of this medical leave page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I get medical leave under the FMLA?”, “what should I do when my job won’t give me medical leave?”, “can my boss deny me medical leave?”, “what should I do if I was fired in retaliation for taking FMLA leave?”, or “is my employer allowed to…?”, your best option is to contact an Ohio medical leave attorney to obtain advice with respect to FMLA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.

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