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Don’t ask employees to sign away their FMLA rights

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in Firing,FMLA Guidelines,Human Resources,Leaders & Managers,Performance Reviews

In severance agreements, employers typically require employees to sign promises not to file employment-related lawsuits. But don't try to include FMLA rights in that waiver.

Why? A new ruling clarifies that courts won't uphold severance-package waivers that ask employees to give up their FMLA rights. The Labor Department's FMLA regulations specifically state that "employees cannot waive, nor may employers induce employees to waive, their rights under the FMLA." So any severance deal that seeks to waive those rights, such as the one in the case below, will be deemed unenforceable. That is, unless the company has received prior approval of the waiver from a court or the U.S. Labor Department.

Recent case: Barbara Taylor sued her former employer, Progress Energy, after being laid off in a reduction in force. She lost her job because her performance evaluation put her near the bottom of company performers. Taylor elected to take a $12,000 severance payment in exchange for agreeing not to sue for any employment-law violations.

But soon after cashing the check, Taylor filed an FMLA lawsuit, alleging that she was laid off because her performance review was unfairly low due to leave that should have been counted as FMLA leave. Progress Energy claimed she lost her right to file an FMLA lawsuit when she signed the waiver and took the severance pay.

The appeals court disagreed. It noted that the Labor Department's regulations prohibit employees from waiving their FMLA rights. Without approval from Labor or a court, FMLA releases are invalid. (Taylor v. Progress Energy Inc., No. 04-1525, 4th Cir., 2005)

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