• FMLA Waivers Must Have Court or DOL Approval
  • July 29, 2005 | Author: Rodney A. Satterwhite
  • Law Firm: McGuireWoods LLP - Richmond Office
  • A federal appeals court ruled last week that waivers and releases of Family and Medical Leave Act ("FMLA") claims are unenforceable unless they are approved in advance by either a court or the Department of Labor ("DOL"). In Taylor v. Progress Energy Inc. 4th Cir., No. 04-1525 July 20, 2005, the U.S. Court of Appeals for the Fourth Circuit held that an employee could sue her former employer under the FMLA, even though she signed a release at the time of her termination in exchange for a lump-sum cash severance award.

    The text of the FMLA does not specifically prohibit waivers or releases of FMLA claims. However, a Department of Labor regulation (29 C.F.R. § 825.220(d)) provides that "[e]mployees cannot waive, nor may employers induce employees to waive, their rights under [the] FMLA." Recognizing that agency regulations are entitled to a certain level of deference from the Courts, the Fourth Circuit upheld the DOL regulation, and reversed the trial court's dismissal of the case.

    In so ruling, the Court disagreed with the Fifth Circuit's interpretation of § 825.220(d), which held that the regulation only precluded waivers of claims that had not yet arisen, and therefore permitted employees to waive FMLA claims based on actions that had occurred in the past, such as a past denial of leave or allegedly retaliatory termination. In contrast, the Fourth Circuit, which includes jurisdictions in Virginia, North and South Carolina, Maryland and West Virginia, held that the regulation prohibits all waivers of FMLA claims unless either a court or the Department of Labor approves them in advance.

    This ruling may have a far-reaching effect for employers who use general releases and waivers as part of their severance programs, or who are seeking to resolve disputes with current and former employees asserting FMLA claims.