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Circuit Split Develops on FMLA Waivers
Almost any employer providing exit pay beyond that to which an employee is otherwise entitled expects a release of rights in return. Most waiver agreements cover claims that could be raised under Title VII, the ADA, the ADEA, the FMLA, as well as state anti-discrimination laws.
It just got harder to get a valid release of FMLA claims in the Fourth Circuit. In Taylor v. Progress Energy, Inc., 2005 U.S. App. LEXIS 14650 (4th Cir. 2005), the court held that any FMLA waiver, like waivers under the FLSA, have to be supervised and approved by the U.S. Department of Labor. In so doing, the court upheld the validity of Section 825.220(d) of the DOL's regulations regarding waivers.
The opinion also created a Circuit split by rejecting the Fifth Circuit's decision in Faris v. WPC-I, Inc., 332 F.3d 316 (5th Cir. 2003), which held that retrospective waivers of the FMLA need not be supervised by the DOL. This significant difference of opinion on the validity of the DOL's regulation brings back memories of Ragsdale v. Wolverine Worldwide, Inc., 535 U.S. 81(2002) and, like Ragsdale, it may take Supreme Court involvement to resolve this issue.
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