Monday, May 26, 2008
As noted last week, the Solicitor General filed a brief recommending that the government not grant cert. in the FMLA waiver case of Taylor v. Progress Energy, Inc. The case was argued successfully at the appellate level by April Dawson (North Carolina Central).
April sends us this update and her thoughts about the case:
For those not familiar with this case, Taylor v. Progress Energy, Inc., 493 F.3d 454 (4th Cir. 2007) is a Family Medical Leave Act (“FMLA”) case involving the interpretation of FMLA regulation 29 C.F.R. § 825.220(d), which provides that “[e]mployees cannot waive, nor may employers induce employees to waive, their rights under FMLA.” I represent Mrs. Taylor, a now former Progress Energy employee whose FMLA rights were violated. The trial court dismissed the suit concluding that the general release signed by Mrs. Taylor barred her from bringing the FMLA action. On appeal, the Fourth Circuit reversed holding that the at-issue regulation prohibits both the prospective and retrospective waiver of FMLA rights. Progress Energy then filed a Petition for Writ of Certiorari with the U.S. Supreme Court seeking review of the Fourth Circuit’s decision in October of last year.
On Jan. 11, the Supreme Court invited the Solicitor General to file a brief expressing the views of the United States on the issue of review. The SG recently filed its brief, and although the SG argued that the Fourth Circuit erred in rejecting the Department of Labor's interpretation of the at-issue regulation, he nevertheless recommended that the Court deny cert. because the DOL has proposed a new regulation that would clarify the issue of employees waiving their FMLA rights.
I anticipate that the Supreme Court will follow the SG's recommendation and deny cert., which would result in the case being sent back to the trial court for litigation on the issue of the violations of my client's FMLA rights. While I regret that I will probably not be arguing before the Supreme Court (at least not with this case), I am thrilled for my client. She was terminated in 2001, came to see me in April 2003, and we filed suit in May 2003. This has been a long journey for Mrs. Taylor, and she is eager to have this case finally resolved.
Great job, April and best to Ms. Taylor.