Devoted to Corporate Attorneys, Corporate Lawyers, and Corporate Counsel

The following is not meant to be legal advice.

On July 3, 2007, the Fourth Circuit Court of Appeals issued an opinion in Taylor v. Progress Energy Inc., 2007 U.S. App. LEXIS 15846 (4th Cir. July 3, 2007), holding that FMLA regulation, 29 C.F.R. §825.220(d), prohibits employees from waiving rights either in the future or retrospectively, without first obtaining the approval of the Department of Labor (DOL) or a court. The Fourth Circuit includes Maryland, North Carolina, South Carolina, Virginia, and West Virginia. 

FMLA regulation, 29 C.F.R. §825.220(d), states: “Employees cannot waive, nor may employers induce employees to waive, their rights under FMLA.”  The DOL enforces the FMLA.  The DOL wrote regulations that interpret the FMLA. On June 27, 2007, the DOL issued a report summarizing the comments it received in response to its December 1, 2006 Request for Information on the regulation on waivers. DOL announced that it would not be issuing revisions.

Accordingly, employers need to follow case authority.  Employers in the Fourth Circuit states who wish to settle FMLA claims with employees may not do so with a release and waiver. Employers must go to the DOL or get court approval in order for the waiver to be enforceable.