FMLA regulations don't let workers to waive their rights

by on February 2, 2009 · 0 Comment POSTED IN: HR Info Center

FMLA rules about waivers apply to past and future claims

You can’t legally ask employees to waive their rights without DOL or court approval, a federal appeals court has emphasized.

FMLA regulations say employees can’t surrender their rights, which include 12 weeks’ leave a year and protection against retaliation. But one appeals court, the 5th Circuit, has ruled in the past that FMLA regulations cover only waivers of future FMLA claims, and don’t apply to employers and employees settling past claims.

No distinction

Not so, the 4th Circuit Court of Appeals just ruled. This court said the FMLA regulations make no distinction between forward- and backward-looking waivers. And the FMLA rules properly express Congress’s intent toward the FMLA, the court said. The Family Medical Leave Act(FMLA) was meant to be like the Fair Labor Standards Act in providing minimum standards for labor practices, and the FLSA doesn’t allow employers to induce employees to give up their rights to the minimum wage and overtime.

In the 4th Circuit case, the employee was laid off based on a poor performance review. The review was based in part on her attendance, which was affected by medical leave she took.

The employee signed a general release of claims on the company in return for $12,000 severance. Later, she sued for infringement of her FMLA rights. The court said the waiver was invalid, but left open the question of whether she had to give back the money.

Note: You can ask employees to waive Title VII or ADEA claims in return for severance. But not FMLA claims.

Cite: Taylor v. Progress Energy, No. 04-1525, 4th Cir., 7/20/05.

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