[Code of Federal Regulations]
[Title 29, Volume 3]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR825.217]

[Page 777-778]
 
                             TITLE 29--LABOR
 
         CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR
 
PART 825_THE FAMILY AND MEDICAL LEAVE ACT OF 1993--Table of Contents
 
 Subpart B_What Leave Is an Employee Entitled to Take Under the Family 
                         and Medical Leave Act?
 
Sec. 825.217  What is a ``key employee''?

    (a) 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.
    (b) The term ``salaried'' means ``paid on a salary basis,'' as 
defined in 29 CFR 541.118. This is the Department of Labor regulation 
defining employees who may qualify as exempt from the minimum wage and 
overtime requirements of the FLSA as executive, administrative, and 
professional employees.
    (c) A ``key employee'' must be ``among the highest paid 10 percent'' 
of all the employees--both salaried and non-salaried, eligible and 
ineligible--who are employed by the employer within 75 miles of the 
worksite.
    (1) In determining which employees are among the highest paid 10 
percent, year-to-date earnings are divided by weeks worked by the 
employee (including weeks in which paid leave was taken). Earnings 
include wages, premium pay, incentive pay, and non-discretionary and 
discretionary bonuses. Earnings do not include incentives

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whose value is determined at some future date, e.g., stock options, or 
benefits or perquisites.
    (2) The determination of whether a salaried employee is among the 
highest paid 10 percent shall be made at the time the employee gives 
notice of the need for leave. No more than 10 percent of the employer's 
employees within 75 miles of the worksite may be ``key employees.''