Jottings By An Employer's Lawyer

Thursday, July 21, 2005

Settling FMLA Claim Just Got A Little Lot Tougher

Brian Peterson at his eponymous West Virginia Legal Blog, has a good report, FMLA claims cannot be settled without court or DOL approval, on yesterday's decision in Taylor v. Progress Energy, Inc. , No. 04-1525 (4th Cir. July 20, 2005) [pdf]. The Court applied ยง 825.220(d) of the FMLA regulations as written -- an employee cannot waive rights under the FMLA. Call this one the revenge of Robert Reich, President Clinton's Secretary of Labor, and a good reminder of the importance of having control of the executive branch of government when it comes to writing and amending regulations.

According to the 4th Circuit the trial court was led astray by the 5th Circuit's opinion in Faris v. Williams WPCI, Inc., 332 F.3d 316 (5th Cir. 2003) which had taken a restrictive view of the regulation, holding it applied only to prospective waivers. A position with which it flatly disagreed.

The fact pattern in Taylor is exactly the kind that one would expect -- a severance package with a release that the employer no doubt thought included FMLA claims. Given the long statute of limitations and lack of adminstrative pre-requisites for FMLA claims, if Taylor is accepted by other courts, it could cause a lot of headaches for employers who thought that they were in the clear.

Brian has an interesting suggestion for a summary proceeding in federal court that could review such settlements. I have a different one. With a split between the 4th and 5th Circuits -- let's ask the new Supreme Court with Justice Roberts to decide. On second thought, I am not sure that is a good idea. We might well see Justice Roberts borrowing from his dissent in AFL-CIO v. Chao, 409 F.3d 377 (D.C. Cir. 2005), where as I noted the other day in supporting the power of the Secretary of Labor to issue regulations he wrote:
Perhaps the Secretary was wrong ... That is not the question before the court. The statute plainly delegates the authority to make such policy-laden judgments to the Secretary ... and the Secretary has reasonably exercised that authority.
Maybe we should go to Plan B, deal with this in the current move to make technical corrections to the FMLA, or since that has not made a lot of progress, maybe it's time to amend the OWBPA to cover FLSA and FMLA claims.


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