According to Forbes and other news sources, Stephen Colbert has taken a leave of absence from his late-night comedy show, "The Colbert Report," to attend to his ailing 91 year-old mother.
Only a true FMLA nerd would use this as an opportunity to explain a little-used, often forgotten rule under the Family and Medical Leave Act -- the "key employee" provision -- that actually could deny Colbert's reinstatement to his wildly popular comedy show. The FMLA allows employers to utilize this "key employee" provision to deny reinstatement to an employee who is among the highest paid in the workplace and whose absence creates a significant financial hardship on the employer.
Before I explain further, to all those who inadvertently stumbled upon this blog article while searching google for "Stephen Colbert," I assure you -- the man running for President of the United States of America of South Carolina most assuredly will be welcomed back to The Colbert Report once his FMLA leave ends.
But, let's suppose for an instant that we lived in the bizarro world, and Comedy Central wanted to get rid of Colbert as quickly as NBC chucked Conan O'Brien from the Tonight Show. Could it do so under the FMLA? Under the FMLA's "key employee" exception, Comedy Central could terminate Colbert's employment so long as it could show that:
1. Colbert is among the highest paid 10 percent of all the employees working for Comedy Central. Keep in mind two points: a) Earnings include wages, premium pay, incentive pay, and non-discretionary and discretionary bonuses; however, earnings do not include incentives whose value is determined at some future date, (e.g., stock options, future benefits or even incentives for Colbert because he reportedly is surging ahead of Buddy Roemer in the presidential polls in the upcoming Louisiana primary); and b) the determination of whether Colbert is among the highest paid 10 percent is made at the time he gives notice of the need for FMLA leave.
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