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FMLA waivers

Fourth Circuit Court of Appeals strikes down employee waivers of FMLA claims 

In two recent published opinions, the United States Fourth Circuit Court of Appeals declared that employees may not waive their rights under the Family and Medical Leave Act (FMLA) without U.S. Department of Labor or court approval.  Having vacated its prior ruling and allowing re-hearing, on July 3, 2007 and July 20, 2005 the Court issued opinions in Taylor v. Progress Energy reversing a lower court ruling in favor of the employer.The Court reasoned that the statute and enabling regulations, like those for the Fair Labor Standards Act (FLSA) require Department of Labor or court approval.  These opinions are consistent with prior decisions of the Court.  Disparity remains between the decisions of the Fourth Circuit and other federal circuits on these issues.   

Employers frequently offer employees some sort of payment or severance package upon termination of employment in exchange for a full release of all claims that the employee could possibly bring against the employer.  Enforceability of these agreements depends on what rights the employee is waiving.  The United States Fourth Circuit Court of Appeals has refused to enforce agreements in which an employee waives his or her rights under the Fair Labor Standards Act (“FLSA”) or the Family Medical Leave Act (“FMLA”) without prior judicial approval or approval from the Department of Labor.  The United States Court of Appeals in the Fourth Circuit (the “Fourth Circuit”) is the federal appellate court for case originating in the federal courts of Maryland, Virginia, North Carolina, South Carolina and West Virginia. The United States Supreme Court has also held that employees may not waive their rights under the FLSA without the necessary approval, but has yet to hear a case on whether the waiver of FMLA claims are valid.The FMLA does not explicitly allow, nor does it preclude a waiver or settlement of claims by an employee. Since Congress did not address the issue directly in the statute and the Secretary of Labor is charged with the responsibility of administering the FMLA, the Fourth Circuit has deferred the question of waiver to a regulation issued by the Department of Labor. The Department of Labor’s regulation states that “employees cannot waive, nor may employers induce employees to waive, their rights under the FMLA.”  The Department of Labor has rationalized its prohibition as a way to prevent an unscrupulous employer from violating the FMLA and then buying out any claims at a rate that is tremendously less than what the claim is worth. 

Upon deferring to the Department of Labor, the Fourth Circuit has also held that an employee may not waive his or her rights under the FMLA without approval from a court or the Department of Labor. Other federal courts in the United States have declared waivers of FMLA to be enforceable if they are knowing and voluntary.  The United States Supreme Court has not yet heard a case involving waivers of an employee’s FMLA rights, although the parties to the Fourth Circuit case filed a Petition of Certiorari in October 2007.  Therefore, if the Supreme Court hears the case, it is possible that such waivers may be permitted in the future.

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