Supremes Deny Cert Over Whether FMLA Waivers Are Valid

  In Progress Energy v. Taylor, 493 F.3d 454 (4th Cir. 2007), the 4th Circuit held that an individual cannot waive FMLA rights unless the waiver was approved by a court or the Department of Labor. The 4th Circuit strictly construed 29 CFR 825.220(d) which provides: "Employees cannot waive, nor may employers induce employees to waive, their rights under the FMLA." Notice how this language only refers to "employees."

Obviously, such a holding discourages settlement. Unfortunately, the Supremes recently denied cert. in Progress Energy. This issue has generated a conflict in the circuits and is ripe for law review commentary.

Mitchell H. Rubinstein

Hat Tip:  FMLA Blog