The employment law blogosphere was all a flurry last week over this recent 4th Circuit case–Taylor v. Progress Energy, Inc., No. 04-1525 (4th Cir. July 20, 2005). The West Virginia Legal Weblog has a good summary of the case:
Yesterday in Taylor v. Progress Energy, Inc. , No. 04-1525 (4th Cir. July 20, 2005) (PDF), the Fourth Circuit held that “without prior DOL or court approval, 29 C.F.R. § 825.220(d) bars the prospective and retrospective waiver or release of the FMLA’s substantive and proscriptive rights.” This ruling places FMLA claims in the same boat as FLSA claims. While claims under Title VII and the ADEA may be waived by private agreements (including employee severance agreements) out of court, FLSA and FMLA claims cannot.
Michael Fox has these comments:
The Court applied § 825.220(d) of the FMLA regulations as written — an employee cannot waive rights under the FMLA. Call this one the revenge of Robert Reich, President Clinton’s Secretary of Labor, and a good reminder of the importance of having control of the executive branch of government when it comes to writing and amending regulations.According to the 4th Circuit the trial court was led astray by the 5th Circuit’s opinion in Faris v. Williams WPCI, Inc., 332 F.3d 316 (5th Cir. 2003) which had taken a restrictive view of the regulation, holding it applied only to prospective waivers. A position with which it flatly disagreed.
The fact pattern in Taylor is exactly the kind that one would expect — a severance package with a release that the employer no doubt thought included FMLA claims. Given the long statute of limitations and lack of administrative prerequisites for FMLA claims, if Taylor is accepted by other courts, it could cause a lot of headaches for employers who thought that they were in the clear.
The release in question read as follows:
GENERAL RELEASE OF CLAIMS. IN CONSIDERATION OF SEVERANCE PAYMENTS MADE BY THE COMPANY, EMPLOYEE HEREBY RELEASES CP&L [AND] ITS PARENT . . . FROM ALL CLAIMS AND WAIVES ALL RIGHTS EMPLOYEE MAY HAVE OR CLAIM TO HAVE RELATING TO EMPLOYEE’S EMPLOYMENT WITH CP&L . . . OR EMPLOYEE’S SEPARATION THEREFROM, arising from events which have occurred up to the date Employee executes this General Release, including but not limited to, claims . . . for relief, including but not limited to, front pay, back pay, compensatory damages, punitive damages, injunctive relief, attorneys’ fees and costs or any other remedy, arising under: (i) the Age Discrimination In Employment Act of 1967, as amended, (“ADEA”); (ii) the Employee Retirement Income Security Act of 1974, as amended, (“ERISA”); (iii) Title VII of the Civil Rights Act of 1964, as amended; (iv) the Energy Reorganization Act and Atomic Energy Act, both as amended; (v) the Americans With Disabilities Act (“ADA”); (vi) any wrongful termination claim under any state or federal law; (vii) claims for benefits under any employee benefit plan maintained by CP&L related to service credits or other issues; (viii) claims under the Older Workers Benefit Protection Act of 1990 (“OWBPA”); and (ix) any other federal, state or local law.
While the release contained no specific reference to the FMLA, apparently that did not matter because, according to Taylor, even a specific release of FMLA rights would not have been effective under DOL regulations which prohibited such release as follows:
29 C.F.R. § 825.220(d): Employees cannot waive, nor may employers induce employees to waive, their rights under FMLA. For example, employees (or their collective bargaining representatives) cannot “trade off” the right to take FMLA leave against some other benefit offered by the employer. This does not prevent an employee’s voluntary and uncoerced acceptance (not as a condition of employment) of a “light duty” assignment while recovering from a serious health condition (see Sec. 825.702(d)). In such a circumstance the employee’s right to restoration to the same or an equivalent position is available until 12 weeks have passed within the 12-month period, including all FMLA leave taken and the period of “light duty.”