FMLA Waivers on Their Way to Supreme Court?

The good people at the SCOTUSblog not only do a fabulous job keeping every one current on everything U.S. Supreme Court, but they also like to get their hands dirty with actual cases. The latest:

The following post was written by Patricia Millett, who together with Tom Goldstein leads Akin Gump’s Supreme Court practice. 

On Monday, we filed this cert petition which presents a question on which the Fourth Circuit has broken ranks with both the Fifth Circuit and the U.S. Department of Labor: whether a Department of Labor regulation, 29 C.F.R. 825.220(d), unambiguously and validly precludes the private settlement or release of claims under the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. 2601 et seq. That regulation provides that “[e]mployees cannot waive, nor may employers induce employees to waive, their rights under FMLA.”

The case, Progress Energy, Inc. v. Taylor, arises out of a lawsuit brought by Barbara Taylor against Progress Energy, the parent company of her former employer, Carolina Power & Light Company, alleging violations of the FMLA.  Two years earlier, however, Taylor released all of her claims under federal law, including the FMLA, in exchange for monetary compensation in a severance agreement. The district court held that the prior release of claims barred the suit. Taylor appealed. The Department of Labor filed an amicus brief in the Fourth Circuit supporting Progress Energy and explaining that its regulation prohibits only the prospective waiver of FMLA rights, not the retrospective waiver of claims asserting FMLA rights.

A divided Fourth Circuit held, however, that the lawsuit could go forward because it read the regulation as prohibiting any private release, waiver, or settlement of any FMLA claim - at least without the prior approval of the Department of Labor or a court. The Fourth Circuit refused to defer to the Department’s reading of its own regulation because the court was of the view that the regulation’s plain language forbids any waiver or release of claims. (The Fifth Circuit has ruled exactly the opposite, and has upheld the Department of Labor’s interpretation of its regulation.).

I would also put a retrospective waiver in a different category because there an attorney is more likely to be involved helping the employee and the employee is more likely to get something of value in return. I would also defer to DOL under Chevron as a reasonable interpretation of its own regulations.

PS