Ok, I Take It Back -- FMLA's Key Employee Exemption Does Really Exist

Well I actually have never said that it did not exist, because it is clearly in the FMLA rules, 29 CFR §825.17. What I have said, in probably more than one FMLA presentation, is that given the limited circumstances and the burden of proof, it is highly unlikely that it will ever be used successfully. To come within its protective circle, an employer must show "reinstatement would cause substantial and grievous economic injury a standard that is "different from and more stringent than the 'undue hardship' test under the ADA."



I didn't say it would never be used (successfully I mean) and the good folks over at the Daily Labor Report have in fact uncovered such a case reported here ($$) in today's edition. In Oby v. Baton Rouge Marriott,No. 03-495-B-M1 (M.D. La 8/10/04) the district court granted the employer's motion for summary judgment that the hotel was not required to reinstate Oby to her $41,000 year position as the housekeeping manager.



I should point out to those who might be thinking the hotel was hard hearted, that Oby was offered an equivalent position as the food and beverage manager. To those who would gloat over my misplaced criticism of the exemption as not likely to be utilized, the court found the employee "failed to dispute evidence presented by the hotel that she was a key employee whose job must be filled to prevent substantial and grievous economic injury to the operations of the employer."



Another factor was that the hotel succeeded only because it had done the basics of notifying her that she was a key employee and could lose her right to reinstatement. Actions taken at the front end of the leave. That's a good lesson to learn, do what is necessary to protect your options, even if you don't think that you will need or be able to ultimately exercise them. Kudos to the folks at the Marriott for getting it right.