Court Ruling Could Effect Employers' Ability to Obtain Employee Waivers of Right to Sue Under FMLA
The United States Court of Appeal for the Fourth Circuit recently ruled that the right to assert a claim based upon a past violation of the Family and Medical Rights Act of 1993 (“FMLA”) may not be waived. In a divided opinion, a panel for the Fourth Circuit rejected the Department of Labor’s interpretation of its own regulation, which would have allowed parties to waive the right to assert a claim based upon a past violation of the FMLA. Taylor v. Progress Energy Inc., ___ F.3d ___ (4th Cir. 2007). The regulation stated that “employees cannot waive, nor may employers induce employees to waive their rights under FMLA.” 29 C.F.R. 825.220(d).
The Fourth Circuit found the Department of Labor’s interpretation of its own regulation was plainly erroneous because the DOL had previously presented differing interpretations of the regulation and because the regulation did not specifically exclude remedial rights –such as the right to assert a claim– from the scope of the regulation. Thus, the court found that, like proscriptive and substantive rights under the FMLA, remedial rights were not able to be waived.
While this ruling of the Fourth Circuit, which covers West Virginia, Virginia, Maryland, North Carolina, and South Carolina is not controlling in the California-based Ninth Circuit, the decision reflects reasoning that may be considered in the Ninth Circuit should the issue arise. Were the Ninth Circuit to adopt the Fourth Circuit's reasoning, employers' ability to obtain effective employee waivers of the right to sue under the FMLA in severance agreements and other settlement documents could be substantially hindered. For a link to the text of the Fourth Circuit’s opinion in Taylor v. Progress Energy Inc., ___ F.3d ___ (4th Cir. 2007), click here.