In Moncrief v. The Terminix International Co. Limited Partnership, No. 06-1047-JTM, 2006 U.S. Dist. Lexis 43816 (D.Kan. June 27, 2006), the court found that Moncrief must arbitrate her FMLA claims in accordance with an employment and arbitration agreement she signed as a condition of her employment. The Agreement requires arbitration of all employment disputes. The court, citing the Supreme Court, noted that compelled arbitration is permitted for alleged violations of federal employment statutes where a valid employment contract so requires. The court distinguished the enforcement of a broad arbitration provision in a valid employment contract from a wavier provision in a severance agreement, noting Fourth Circuit case law that agreeing to arbitration is entirely different from agreeing to waive a claim.
Comments: The anti-wavier provisions of 29 CFR 825.220(d) do not apply to valid, pre-employment agreements to arbitrate FMLA claims in lieu of civil suit.