Fourth Circuit Reinstates its Decision that FMLA Rights may not be Waived Without Court or DOL Approval

On July 3, 2007, the Fourth Circuit Court of Appeals issued a divided opinion, reinstating a 2005 ruling, which the Court had vacated in 2006 in order to hear further arguments from the employer and the United States Department of Labor (DOL). The DOL enforces the FMLA and wrote the regulations that interpret the FMLA. In the opinion, Taylor v. Progress Energy Inc., 2007 U.S. App. LEXIS 15846 (4th Cir. July 3, 2007), the Court held that FMLA regulation, 29 C.F.R. §825.220(d), prohibits employees from waiving rights either prospectively (in the future) or retrospectively (as part of a severance agreement, for example), without first obtaining the approval of the DOL or a court. The regulation in question states: “Employees cannot waive, nor may employers induce employees to waive, their rights under FMLA.”