You can't ask employees to sign away FMLA rights

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Issue: Severance packages usually ask departing employees to waive their rights to file various employment lawsuits.

Risk: If you include FMLA in that mix, you'll risk having the whole package invalidated.

Action: Scan your severance packages to make sure they don't ask staff to sign away FMLA rights. Severance packages offer great peace of mind. Written correctly, they buy insurance against many kinds of employment-related lawsuits. But written incorrectly, they can cause more harm than good.

One way to draft a lawsuit-waiver incorrectly is to include FMLA rights in that waiver. As a new court ruling clarifies, courts won't uphold severance-package waivers that ask employees to give up their FMLA rights.

Labor Department 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 employer has received prior approval of the waiver from a court or the U.S. Labor Department, which is rare.)

Case in point: Progress Energy laid off Barbara Taylor in a reduction in force. Taylor elected to take a $12,000 severance payment in exchange for agreeing not to sue for employment-law violations.

Soon after cashing the check, Taylor filed an FMLA lawsuit. Progress Energy argued that she lost her right to an FMLA lawsuit when she signed the waiver and took the cash. But a federal appeals court disagreed, noting that Labor Department regulations prohibit employees from waiving their FMLA rights. (Taylor v. Progress Energy Inc., No. 04-1525, 4th Cir., 2005)

'Caregiving' via phone doesn't count
The FMLA lets employees take unpaid time off to care for a sick spouse, child or parent. That "care" doesn't need to be physical care; employees can take FMLA leave to provide psychological care and support, too. For example, a previous court ruling granted an employee FMLA time to stay by his father's side while the father suffered deep depression. But take note: Such nonphysical "care" only counts when the caregiver is in close proximity to the sick person. Long-distance calls won't cut the mustard for FMLA purposes. Case in point: A Seattle airline mechanic took FMLA leave to care for his wife in the final days of her pregnancy. But right after he took leave, his car broke down. Since he owned another car in Atlanta, he flew there, picked it up and started driving back to Seattle, calling his wife regularly on his cell phone. He missed the birth by one day. When he returned to work, the company fired him. The mechanic sued, alleging he was entitled to FMLA leave because his phone calls provided psychological comfort. But the court tossed out the case, saying phone calls aren't the sort of "psychological care" that FMLA rules had in mind. If phone calls were enough, he could have made them from work. (Tellis v. Alaska Airlines, No. 04-35137, 9th Cir., 2005)

'Caregiving' via phone doesn't count

The FMLA lets employees take unpaid time off to care for a sick spouse, child or parent. That "care" doesn't need to be physical care; employees can take FMLA leave to provide psychological care and support, too.

For example, a previous court ruling granted an employee FMLA time to stay by his father's side while the father suffered deep depression. But take note: Such nonphysical "care" only counts when the caregiver is in close proximity to the sick person. Long-distance calls won't cut the mustard for FMLA purposes.

Case in point: A Seattle airline mechanic took FMLA leave to care for his wife in the final days of her pregnancy. But right after he took leave, his car broke down. Since he owned another car in Atlanta, he flew there, picked it up and started driving back to Seattle, calling his wife regularly on his cell phone. He missed the birth by one day. When he returned to work, the company fired him. The mechanic sued, alleging he was entitled to FMLA leave because his phone calls provided psychological comfort. But the court tossed out the case, saying phone calls aren't the sort of "psychological care" that FMLA rules had in mind. If phone calls were enough, he could have made them from work. (Tellis v. Alaska Airlines, No. 04-35137, 9th Cir., 2005)

Tags: Case in Point, employees, employees, employment law, employment laws, fmla, fmla, fmla law, fmla laws, fmla leave, fmla regulation, fmla regulations, fmla rights, fmla rule, fmla rules

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The Next Level

Career Management	Office Communication
Employment Law	Office Management
Human Resources	People Management
Leadership Skills	Small Business Tax

Case in Point	Your Office Coach
HR Forum	Admin Forum
The Next Level

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You can't ask employees to sign away FMLA rights

The HR Specialist

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