Q. In our severance agreements, we typically require a terminated employee to waive all claims, includingclaims that could have arisen while the employee worked for us. I’ve now heard that it is improper for employers to get waivers of from existing employees. What should we do?
A. No less than a federal judge in Chicago, as well as the U.S. Department of Labor, agree that this area is subject to substantial confusion. According to Judge Charles Norgle in Butler v. Merrill Lynch Business Services, No. 08-934, 2008, there is a fundamental difference between an employee’s waiver of past FMLA claims and waiver of future FMLA rights.
Borrowing the position of the DOL in its regulations interpreting the FMLA, Norgle found that employers and employees may agree to settle previously existing FMLA claims and an employee’s release of those claims will be enforceable. However, Norgle distinguished “claims” and “rights,” noting that where an employer violates the FMLA after a settlement (such as denying the employee), the employee still has a remedy under the FMLA to challenge the employer’s conduct.
A waiver or settlement therefore does not strip the employee of any “rights under the FMLA,” for the employee is still equipped to protect himself or herself from an employer’s potential future violations of the FMLA. Put simply, an employee still retains his or her rights under the FMLA, notwithstanding a waiver of past claims that may have already arisen.
In a situation where an employer settles a past FMLA claim with an employee whose employment is not terminated, any written settlement or release document should be clear that the scope of any release is limited to past “claims” and not to “rights.”