posted on Sunday, July 15, 2007 1:40 PM
by
Lou Michels
Waive goodbye to all that
It's not uncommon to see a federal agency such as the Department of Labor getting its wrists slapped by a federal circuit court over some aspect of the agency's own regulations. What makes a recent Fourth Circuit opinion interesting reading is the ultimate holding, which has to be of interest to anyone dealing with a Family and Medical Leave Act claim.
Concisely put, the Fourth Circuit determined that a Department of Labor regulation-- 29 CFR section 825.220(d) means exactly what it says, namely that employees cannot waive, nor can they be induced to waive, their rights under the FMLA. As I've mentioned before, no self-respecting employer wants to settle a case unless the settlement forecloses all other potential causes of action, in a so-called "general release". The Fourth Circuit's opinion provides a well reasoned analysis as to why the Department of Labor regulation makes it impossible for an employer to sleep well at night in a potential FMLA situation, even when the employer has a signed waiver of FMLA rights in its files. The only way an employee's waiver of perspective or pending FMLA claims can be effective is if the waiver has been approved in the same manner as a Fair Labor Standards Act waiver, that is by a court, or the Department of Labor itself.
What this means is that it is impossible, at least in the Fourth Circuit, to settle an FMLA claim without going to the Department of Labor (or a federal judge, if a case is actually been filed) and getting it to sign off on the agreement. More importantly, broad general releases of employment claims now have at least two serious holes in their viability in the form of FLSA and FMLA claims. Employers must note that these so-called general releases are not so general anymore with regard to payroll, attendance and leave of absence problems.