[Code of Federal Regulations]

[Title 29, Volume 3]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 29CFR825.217]



[Page 774-775]

 

                             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



[[Page 775]]



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.''