Joan Gale Quoted in SHRM Online
“SHRM Opposes Ban on Unsupervised FMLA Waivers”

Joan Gale was quoted in the article, “SHRM Opposes Ban on Unsupervised FMLA Waivers,” published on the Society for Human Resources’ website on August 23, 2007. The article details employers’ concerns about a recent decision from a panel of judges for the 4th US Circuit Court of Appeals that could jeopardize the possibility of resolving Family Medical Leave Act claims outside the courtroom.

“This is a very troubling decision,” Joan noted, but a rehearing by the full court is possible since one panel member dissented. Should the full court choose not to hear the case, Joan observed that it would be unlikely that the Supreme Court would choose to review the case. This is “bad news” for employers, and they should not assume that FMLA waivers will be valid, even outside the 4th Circuit. FMLA waivers are enforced retroactively in the 5th Circuit, and Joan notes that the enforceability of such waivers in the rest of the country is currently “up for grabs” because the law in this area “is in flux.”

Joan observed that in light of the 4th Circuit decision, there are implications for how to draft FMLA waivers. She noted, for example, that a waiver might include a statement that the employer has provided all leave to which the employee is entitled. To avoid any “unpleasant surprises,” however, Joan advised that legal counsel should be consulted about such releases.