TO:                  Business Leader

FROM:            John J. Ferriter, Esquire

DATE:             May 24, 2006

RE:                   FMLA Claims May Not Be Waived

______________________________________________________________________________

The Federal Fourth Circuit Court of Appeals recently issued an opinion holding that an employee?s rights under the Family and Medical Leave Act (FMLA) may not be waived.  Taylor v. Progress Energy.  In Taylor, an employee, missed a number of days of work for medical reasons.  She asked the human resource representative about the possibility of using FMLA leave and was erroneously told that she was not eligible because she had missed more than five days of work consecutively.  The company also issued her a warning, informing her that she needed to improve her attendance.  She then learned that she needed surgery and subsequently missed six weeks of work.  She inquired more than once about the possibility of FMLA leave, but was credited only four weeks of FMLA leave. Following her return to work, she received a negative performance evaluation, due to her absences.  She asked the employer to correct her personnel file to indicate that her absences were FMLA leave, but the employer refused.  Several weeks later, she was fired as part of a reduction in force.

At the time of her termination, the employer offered severance pay if she would sign a release which covered, among other things, all claims under ?any other federal ? law.?

The employee then filed suit against the employer, who filed for summary judgment on the ground that the employee?s release was a defense to the lawsuit.  Taylor responded by citing 29 C.F.R. 825.220(d), which bars enforcement of the release of FMLA claims.  Relying on a 2003 Fifth Circuit decision, Faris v. Williams WPC-I, the district court found in favor of the employer and granted the summary judgment, stating that 29 C.F.R. 825.220(d) only bars the prospective waiver of FMLA rights.  Taylor appealed, and the Fourth Circuit reversed the lower court?s decision, finding that the plain language of 29 C.F.R. 825.220(d) clearly prohibits the waiver of prospective or retrospective FMLA rights.  The court also noted that settlement of claims under the FMLA must be supervised by the U.S. Department of Labor or by a court.  Following this decision, there is now conflicting caselaw from the Fourth and Fifth Circuits, setting up the likelihood of a Supreme Court decision on this issue.

            If you have any questions, please feel free to call Attorney Jack Ferriter at 413-535-4200 or email at jferriter@ferriter.com.