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Can You Release Family/Medical Leave Act Claims?
10/1/2007
 
ROBIN'S PERSPECTIVE: In a significant decision affecting employers and employees alike, the 4th Circuit federal appellate court (covering Maryland, Virginia, West Virginia and North and South Carolina) has held that an employee cannot waive a future or existing Family Medical Leave Act (FMLA) claim without approval of the court or the Department of Labor (DOL).

The court based its decision on the DOL’s regulation providing that "employees cannot waive, nor may employers induce employees to waive, their rights under [the] FMLA" (29 CFR § 825.220(d)). Although the DOL intervened in the legal dispute to maintain the regulation did not mean what it said, the Fourth Circuit has refused to honor the department’s own interpretation. Instead, two judges on the 3-judge panel held that the plain language of the regulation precluded both the future or past waiver of FMLA rights. Barbara Taylor v. Progress Energy, Inc., No. 04-1525 (4th Cir. July 3, 2007).

What this means is that employees who receive severance in exchange for a general release may still be able to sue their employers for FMLA violations.

Because one judge dissented in Taylor v. Progress, it is possible that the entire 4th Circuit bench may choose to reconsider and rule on the case. If not, the fact that other federal courts disagree with the 4th Circuit (including the 3rd Circuit which includes Pennsylvania, New Jersey, and Delaware) means that the case is ripe for review by the Supreme Court of the United States. Until then, you may find yourself in the awkward position of having to convince your employer to provide you severance on your “unenforceable” promise that you won’t sue for FMLA violations.
 
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Robin Bond
 
Robin Bond, Esq.
 
 
Workplace Legal Analyst


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