The Federal Sector FMLA Blog

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. 

   

Supreme Court Invites Soliciter General to Express U.S. Government Position on Waiver of FMLA Claims by Settlement

On Monday, January 14, 2008, the Supreme Court issued an Order inviting the Solicitor General of the United States to file a brief expressing the views of the United States Government in Progress Energy, Inc. v. Taylor.  In that case, the Fourth Circuit held that the anti-waiver provisions of 29 CFR 825.220(d) prohibit an employee from waiving their right to sue for violation of the FMLA as part of a release without the assistance of the U.S. Department of Labor or a court.  Progress Energy petitioned the U.S Supreme Court to review the decision of the Fourth Circuit on October 22, 2007.  The recent Order suggests that the Supreme Court may agree to grant the petition and address the issue. 

Comment:  There is a split in the circuit courts regarding the enforceability of employee releases of FMLA claims.  The Fourth Circuit in Progress Energy has essentially found such agreements unenforceable. The Fifth Circuit in Faris v. Williams WPC-1, Inc., 332 F.3d 316 (5th Cir. 2003) has found that an employee may waive their procedural right to sue for FMLA violations. They may not, however, waive substantive FMLA rights, such as the right to take leave.  Perhaps the Supreme Court will resolve the issue.

The Progress Energy and Faris decisions are addressed in prior posts and may be found under Wavier of rights.

Waiver of FMLA Claims in Severance Agreement Enforceable

A federal court recently held that the FMLA does not prohibit an employee from waiving the right to sue for past violations of the FMLA in a severance agreement.  Employees may not, however, prospectively waive substantive FMLA rights (i.e., the right to take leave) or procedural FMLA rights (the right to sue). 

Severance Agreement Wherein Employee Waives Right to Sue Employer for FMLA Violations Unenforceable

In Dougherty v. Teva Pharmaceuticals USA, No. 05-2336, 2006 U.S.Dist. LEXIS 62179 (E.D.Pa. Aug. 29, 2006) found that section 825.220(d) prohibits an employee from waiving their right to sue for FMLA violations through a severance agreement.  825.220(d) provides that:

Employees cannot waive, nor may employers induce employees to waive their rights under [the] FMLA.

In Dougherty, Teva’s human resources manger suggested that Dougherty leave Teva due to continuing conflicts with her supervisor.  Plaintiff was subsequently provided a Separation Agreement and General Release.  The Separation Agreement provided that, in exchange for agreeing to its terms Dougherty would receive one month’s salary and continued health insurance through COBRA.  The Agreement released all claims against Teva arising out of her employment.  Dougherty initially indicated that she did not want to leave the company but wanted to take a leave of absence.  Teva sweetened the offer by increasing the compensation to two months salary and two months of continued COBRA coverage.  Dougherty accepted the deal and signed a modified Agreement.  A week after she signed the Agreement and took the money Dougherty called her employer and stated that she wanted to revoke the Agreement.  She subsequently filed suit alleging violation of the FMLA.   

      

The court noted that whether an employee can, as part of a severance agreement, waive his or her right to sue for violations of the FMLA was a matter of first impression in the Third Circuit.  The court noted that the circuits are split on this issue.  The Fourth Circuit held that the plain language of 825.220(d) prohibits any waiver of the substantive and protective rights conferred by the FMLA unless approved by the DOL or a court.  The Fifth Circuit found that separation agreements were enforceable because 825.220(d) prohibited only the prospective wavier of FMLA “rights” (e.g., leave and reinstatement) and that the ability to file a civil suit was not such a “right” but merely a means of enforcement.  The court in Doughtery found the decision of the Fourth Circuit more persuasive.  The court went on to reject the argument that the plaintiff ratified the agreement by retaining the two months severance pay, finding that the third Circuit has concluded that “concepts of ratification and tender back are inapplicable to federal remedial statutes.”

Comment:    The decision is applicable to FLMA cases arising under Title I, the CAA, and the PEOAA as these FMLA variants contain anti-wavier provisions.  Title II does not allow civil suit and does not otherwise contain similar anti-waiver provisions.  To avoid financing litigation against the agency, federal employers subject to Title I, the CAA, or the PEOAA should consult with counsel before securing a severance agreement waiving the right to sue for FMLA violations.