In Taylor v. Progress Energy, Inc., the Fourth Circuit recently held that, without prior U. S. Department of Labor or court approval, the FMLA bars the prospective or retrospective waiver or release of FMLA claims.  Under the ruling, FMLA waivers or releases must be obtained using the same process followed for waivers or releases under the Fair Labor Standards Act.  The broad ruling applies even if waivers were negotiated through attorneys representing employees.

In the Taylor case, the terminated employee received certain benefits in exchange for a general release waiving her right to bring any federal claims against the company. The employee sued the employer for a violation of her FMLA rights, the company offered the release as a complete defense to the claims and requested summary judgment against the employee.  However, the employee argued that the Department of Labor's FMLA regulations, specifically 29 C.F.R. 825.220(d), barred the enforcement of the release.

That section of the regulations provides that "employees cannot waive, nor may employers induce employees to waive, their rights under the FMLA."  The trial court followed the reasoning of the U.S. Court of Appeals for the Fifth Circuit in another case holding that 29 C.F.R. 825.220(d) did not apply to the retrospective waiver or release of FMLA rights, or claims of discrimination or retaliation for exercising FMLA rights. Faris v. Williams WPC-I, Inc.

The Fourth Circuit held that the DOL regulation's language prohibits the retrospective and prospective waiver or release of an employee's substantive and prospective FMLA rights. The Fourth Circuit ruled that the FMLA's waiver provisions should track those under the FLSA.  Under the FLSA, to be enforceable, a waiver of substantive or prospective rights must have DOL or court approval.

As a result of this conflict between the Circuits, employers seeking to settle FMLA claims should consider including the Department of Labor in that process or recognize the risk that a waiver not approved by the DOL or a court may not bar a subsequent FMLA (or FLSA) claim.