On Monday, the Supreme Court declined, without comment, to review the decision of the Fourth Circuit in Progress Energy v. Taylor, 493 F.3d 454 (4th Cir. 2007), which questioned whether the anti-waiver provisions of 29 CFR 825.220(d) preclude the private settlement or release of claims under the FMLA absent the approval of a court or the U.S. Department of Labor.
29 CFR 825.220(d) provides:
Employees cannot waive, nor may employers induce employees to waive, their rights under the FMLA.
In Progress Energy, the Fourth Circuit strictly interpreted this language to preclude all FMLA settlements that were not approved by a court or the U.S. Department of Labor. The U.S.Department of Labor and most other courts do not agree with the Fourth Circuit's restrictive reading of 825.220(d). The DOL and other courts would allow an employee to settle an an accrued FMLA claim without the involvement of a court or the U.S. Department of Labor.
The DOL and all courts agree that an employee may not prospectively waive their FMLA rights. For example, an employment agreement that required an employee, as a condition of employment, to waive their right to take FMLA leave in the future, or only take 6 weeks a year instead of 12, is unenforceable.
On behalf of the Bush administration, former Solicitor General Paul Clement urged the Supreme Court to deny the petition for certiorari. After observing that the Bush administration viewed the Fourth Circuit's opinion was incorrect, Clement argued that the court should turn down the case because the Labor Department was revising the existing FMLA regulations to make it clear that waiver prohibition only applies to prospective rights and not past claims.
Comment: The decision of the Supreme Court keeps the split in the circuits on this issue alive, at least for the time being. It will be interesting to see what happens when the Fourth Circuit gets the opportunity to revisit the issue after the DOL has issued its revised anti-waiver provision. Until then, to be valid, FMLA settlements in the fourth circuit (N. and S. Carolina, Virgina, W. Virginia & Maryland) require court or DOL approval.
The OPM FMLA regulations do not contain an anti-waiver provision similar to 825.220(d). Unfortunately, the OPM has not explained why it decided not to adopt the DOL's anti-waiver provision, as it could have.
The absence of an anti-waiver provision may be partially explained because federal civil service employees under Title II do not have the right to sue in federal court for violations of their FMLA rights. This would appear to negate the necessity of court approval for an FMLA settlement.
The OPM likely precludes prospective waivers of FMLA rights. 5 CFR 630.1210(b) provides that FMLA entitlements may not be diminished by any collective bargaining agreement or any employment benefit program or plan. This would appear to preclude an employee from waiving their right to take FMLA leave in the future.
A settlement is generally not an employment benefit program or plan, so that provision should not preclude settlement of accrued FMLA claims. Most collective bargaining agreements encourage grievance resolution at the earliest step in the process. I am not aware that OPM has ever taken the position that they must supervise settlements of accrued Title II FMLA claims. Nor am I aware of any MSPB decision that has so interpreted Title II of the FMLA.
It is very likely that accrued FMLA claims of federal civil service employees can be settled without court or OPM approval.