Posted by: Jennifer Milligan
March 06, 2006

It is a common practice to require a departing employee to sign a severance agreement and general release before giving the employee a severance package.  That agreement will generally include a provision that releases an employer from any legal claims the employee may have against your company.  The 4^th Circuit ruled that a U.S. Department of Labor (DOL) regulation which prohibits employees from waiving or releasing their rights under the FMLA without court or DOL approval applies to retrospective and prospective claims and it prevents both the waiver of both substantive and prospective rights.  Therefore, a release that includes a waiver of FMLA rights without prior approval from a court or the DOL, does not constitute a valid waiver of the employee’s FMLA rights.  Taylor v. Progress Energy, Inc., 415 F.3d 364 (4^th Cir. 2005). 

This case illustrates the necessity of being cautious when you ask an employee to release you from FMLA claims.  The 7^th Circuit (which covers Indiana) isn’t bound by the decisions of the courts in other circuits, so it may or may not follow the 4^th Circuit’s reasoning.  The 7^th Circuit hasn’t addressed this issue yet.

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