If I Sign this Release, I can Still Sue you Later, Right? The Current (And Future) Status of FMLA Waivers

AuthorShannon G. Mink
PositionIs an evening student at Capital University Law School, class of 2009
Jane has been a supervisor at X–Corp for seven tumultuous y ears. In
the past year, s he has been l ate numerous t imes without cal ling and wit hout
good reason. Sh e has been warned verbally several times, and once in
writing, about her excessive tard iness. Jane’s manager, Bob, has also had a
number of complaints about her attitude and rudeness. Bob has discuss ed
the problems with Jane, but nothing has changed. Jane’s behavior is
disrupting the office env ironment and harming morale within her
department. Bob is sick and ti red of having to deal with th e drama Jane
creates every day and di scusses the situation with human resources and
corporate counsel . All deci de the best solution is t o forgo furth er
disciplinary action and discharg e Jane. At the suggestion of corporate
counsel, Bob o ffers Jane two weeks’ pay and a check for $1000 in
exchange for signing an agreement which includes a waiver rele asing X
Corp from any claim Jane may have against the company. Jane, who is
aware that her standing at X–Corp is in d anger, decides this is a good deal
and agrees to sign . The end. Or i s it?
This scenario i s not unco mmon; across the country employers are
faced with similar situations all t he time. Chances are most people who
have worked in “co rporate America” have a Jane story. Sometimes the
only so lution an employer has i s to let the employee go. When an
employer d ischarges an employ ee, the employer will often ask the
employee to sign a separation agreement. 1 These agreements usually
include waiver provisi ons, releasing the emplo yer from claims the
Copyright © 2008, Shanno n G. Mink.
* Shannon G. Mink is an evening stud ent at C apital University Law School, class of
2009. I would like to th ank the Law Review Editors and Professor Floyd Weatherspoon—
your suggestions and help w ere greatly appreciated.
1 John F. Lomax, Jr. & John Scalia, Fourth Circuit Rules that Employees Cann ot
Waive their FMLA Rights without Court or DOL Approval, GREENBERG TRAURIG AL ERT,
July 2005, http://www.gtlaw. com/pub/alerts/2005/0707.asp.
employee may h ave in exchange for a seve rance package.2 Such
agreements generally include releases of the Family and Medical Leave
Act (FMLA) claims.3 A waiver or release “is a contract in which the
employee kno wingly and voluntaril y waives th e right to assert cl aims
against th e employer stemming from the employment relationship.” 4
When discharg ing an employee, i t is g enerally re commended that the
employer o btain a releas e to “reduce exposu re to post-empl oyment
litigation.”5 Waivers of F MLA claims can also be included in broad
releases that cover “all claims” and in private settlement agreem ents.6
Regardless, whether in a severance agreement or a private s ettlement, all
such waivers have t he potential to be problemati c.
The statute is si lent on the issue of waivers, but the Code of Fed eral
Regulations at 29 C.F.R § 825.220(d) specifically provi des t hat
“[e]mployees cannot waive, nor may employ ers in duce employees to
waive, their righ ts under [the] F MLA.”7 In J uly of 2007, th e Fourth
Circuit i n Taylor v. Progress Energ y, Inc.8 reaffirmed a prio r holding9 that
29 C.F.R. § 825.220(d),10 promulgated by the Dep artment of Labor (DOL) ,
“bars th e prospective and retrospectiv e waiv er . . . of rights under the
FMLA, includi ng the right to bring . . . [a] claim for violatio n of the Act[,]”
unless the waiver or release has been ap proved by a court or the DOL; a
2 Id. It should be noted that severance packages may include n on-monetary benefits in
lieu of, or in addition to, cash.
3 See Jennifer Dellmuth & Meli ssa Raphan, United S tates: Fourth Circuit Holds
Department of Labor or C ourt Approval Required for Release o f Family & Med ical Leave
Act Clai ms, MOND AQ BUS. BRI EFI NG , J uly 3 0, 2 007, http ://w ww.m onda q.co m/
article.asp?articleid=508 58; see also Family and M edical Leave Act of 1993, 29 U.S .C.
§§ 2601–2654 (2000).
4 Jeffrey S. Klein et a l., Drafting Employment Agreements, 74 5 PRACTISING L. INST.
175, 197 (2006).
5 Id.
6 In this comment, the terms “waiver” and “release” are used interchang eably.
8 493 F.3d 454 (4th Cir. 200 7).
9 Taylor v. Progress Energy, Inc., 415 F .3d 364 (4th Cir. 2005) [he reinafter Taylor I],
vacated No. 04-1525, 2006 U.S. App. LEXIS 1 5744 (4th Cir. Ju ne 14, 2006), reinstated
493 F.3d 454 (4th Cir. 20 07) [hereinafter Taylor II].
requirement added by the Fourth Circuit.11 This means releases and
private settlemen ts made without court or DOL approval are unenforceable
if an ex-employee later brings an FMLA claim.12 Thus, in the Fourth
Circuit, the court will not uphold FMLA w aivers unles s the agreement h as
prior approval by the DOL or a court.13 The court’s holding applies in both
termination and settlemen t situations. Accordin g to the U.S. Chamber of
Commerce, in its amicus bri ef after Ta ylor II, the T aylor decision “will
have far-re aching and dis astrous implications for countless businesses that
depend upon the certainty, predictab ility, and uniformity of federal law.”14
The Fourth Circuit’s hold ing is in direct contrast with the Fifth
Circuit’s holding in Faris v. Williams WPC–I, Inc.15 in which the court
held that 29 C.F.R. § 825.220(d) do es not apply to retrospective rights.16
Both circuits agree the reg ulation bars waivers of substantiv e righ ts whi le
an employee is acti vely employed.17 That is, neither circuit b elieves an
employee sho uld be permitted to waive his or her right to assert a claim i n
exchange for a benefit wh ile e mployed.18 This would leave the employee
completely unprotected by the FMLA and would clearly undermine the
purpose of any employment statute. The issue on which the Fourth and
Fifth Circuits di sagree is post-employmen t or post-dispute waivers.
The Fifth Circui t in Faris specifically ruled that, under the regulation,
post-employment an d post-di spute releases are v alid wi thout court or DOL
approval.19 According to the Fifth Circuit, the “righ t to bring a claim” is
not a “ri ght” prote cted by the regul ation, an d thus no approval is needed.20
11 Taylor II, 493 F.3d at 463.
12 Carol Wong, The Famil y and Medical Leave Act: To Waive or Not to Waive, 2007 U.
ILL. L. REV. 1567, 1580 (2007).
13 Taylor I I, 493 F.3d at 463. T he court, however, failed to suggest how this would
work since neither the DOL nor the federal courts have any procedural process established
for such a review. See infra no te 25.
14 Brief of the Chamber of Commerce of the United States of America as Amicus
Curiae in Support o f Petitioner at 2, Progress Energy , Inc. v. Taylor, 128 S. Ct. 2931 (2008)
(No. 07-539), 2007 WL 41 42604.
15 332 F.3d 316, 322 (5th Cir. 200 3).
16 Id. at 320.
17 See Taylor II, 493 F.3d at 456– 57; Faris, 332 F.3d at 322.
18 See Taylor II, 493 F.3d at 456– 57; Faris, 332 F.3d at 322.
19 Faris, 332 F.3d at 320–21.
20 Id.

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