The 4th Circuit Court of Appeals has decided that waiving employers’ past violations of therequires approval from a court or the U.S. Labor Department. That gives employees a leg up if they sue their employers for violating the FMLA.
At the heart of the case—which has worked its way through the legal system for years and included arguments for and against the court’s determination by the Labor Department and the Society for Human Resource—is an that states, “Employees cannot waive their rights under FMLA.”
Some employers (and even the Labor Department itself, which drafted the regulations) had interpreted that to mean employees could not waive their rights to sue under the FMLA for future violations (e.g., agreeing to take such disputes to arbitration). But, they argued, employees could sign a settlement agreement after a lawsuit or FMLA complaint had been filed with the Labor Department.
The 4th Circuit Court of Appeals reasoned that the FMLA was most analogous to the Fair Labor Standards Act, which also does not allow employees to waive past violations of that law. Doing so, the court pointed out, might encourage employers to pay less than minimum wage and then count on employees to settle those cases, giving the employer a competitive advantage. The same is true for the FMLA.
Plus, the court pointed out that the Labor Department earlier had explained that it meant exactly this when business interests raised the issue before the regulation became final. (Taylor v. Progress Energy, No. 04-1525, 4th Cir., 2007)
Final note: Before settling FMLA claims, consult an attorney. He or she can help you make sure any settlement is truly binding.