SG Invitation Brief in Progress Energy v. Taylor, FMLA Waiver Case

Amy Howe over at SCOTUSblog reports:

On Friday the Solicitor General’s office filed this invitation brief in No. 07-539, Progress Energy v. Taylor. At issue in the case (in which Akin Gump represents the petitioner) is whether 29 C.F.R. 825.220(d), a Department of Labor regulation providing that employees cannot waive (nor may employers induce them to waive) rights under the Family and Medical Leave Act, prohibits the private settlement of FMLA claims based on past employer actions.

In its brief, the United States acknowledges that the Fourth Circuit’s decision in the case rested on an erroneous interpretation of Section 825.220(d) and that the decision conflicts with a decision of the Fifth Circuit. Moreover, the United States notes, the Fourth Circuit’s interpretation may have a variety of adverse effects, such as “prevent[ing] employers from settling claims with finality and employees from obtaining payments through such settlements without the inevitable delay of seeking court or DOL approval.” The United States nonetheless contends that certiorari is not warranted because the Department of Labor is currently considering a revision to Section 825.220(d) that would “eliminate any ambiguity in § 825.220(d), resolve the question presented in this case, and effectively abrogate the Fourth Circuit’s decision - at least on a going forward basis.”

I wonder if the SG is just getting sick of all these labor and employment cases (I'm not, I promise) and is doing what it can to keep more of these cases of the Court's docket.

We previously wrote about this case last October and opined:

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