The 4th Circuit Court of Appeals has ruled that a Department of Labor regulation
barring a waiver of an employee's rights under the Family and Medical Leave
Act applies to all rights under the act.
In the case before the court, Barbara Taylor alleged that her former employer,
Carolina Power & Light Company, violated her rights under the Family and
Medical Leave Act of 1993, including the violation of (1) her substantive right
to twelve weeks of unpaid leave to deal with a serious health condition and
(2) her proscriptive right not to be discriminated or retaliated against for
exercising her substantive FMLA rights.
The company argued that Taylor waived her rights to file a lawsuit when she
signed and returned a general release and severance agreement. Taylor argued
that 29 C.F.R. § 825.220(d), a Department of Labor regulation, bars the
waiver or release of FMLA rights. The regulation reads: "Employees cannot
waive, nor may employers induce employees to waive, their rights under [the]
FMLA."
A district court, in ruling in favor of the employer, said the department's regulation
applies to only the prospective waiver of substantive FMLA rights (twelve weeks
of unpaid leave to deal with a serious health condition), not to a retrospective
waiver of FMLA claims or the release of claims that an employer has discriminated
or retaliated against an employee for the exercise of her substantive FMLA rights.
The 4th Circuit Court of Appeals--which covers Maryland, North Carolina, South
Carolina, Virginia, and West Virginia--
disagreed with the district court's interpretation.
"The regulation's plain language prohibits both the retrospective and
prospective waiver or release of an employee's FMLA rights," the 4th Circuit
wrote. "In addition, the regulation applies to all FMLA rights, both substantive
and proscriptive (the latter preventing discrimination and retaliation)."
The appeals court said the waiver was unenforceable, adding that the Department
of Labor permits a waiver of FMLA rights only with prior approval of the department
or a court.
"Finally, the DOL, by recognizing that the FMLA's enforcement scheme is
analogous to that of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201
et seq., has indicated that § 825.220(d) permits the waiver or settlement
of FMLA claims only with the prior approval of the DOL or a court," the
4th Circuit wrote.
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