The federal appellate court in Virginia has joined a number of other courts and ruled that employers may not ask employees to release claims they may have under the Family and Medical Leave Act. In Taylor v. Progress Energy, Inc., No. 04-15 (4th Cir. July 3, 2007), the Court ruled that the FMLA’s regulations do not allow employees to waive their rights. Thus, the Court treated the FMLA in the same way it and other courts have treated the Fair Labor Standards Act, which covers such matters as the payment of overtime pay, The Bush Administration took the side of employers and urged the Court to find such waivers lawful. However, the Fourth Circuit has joined a number of other courts, including several judges in the Northern District of Illinois, which have found waivers of FMLA rights unlawful.

Frank Del Barto, of the Firm’s Chicago office, reminds us that employees may release claims of discrimination under federal, state and local laws, assuming that the correct language is used in the agreement, including language required by the Older Workers Benefit Protection Act. However, the Equal Employment Opportunity Commission and state and local anti-discrimination agencies are finding broader language unlawful and agreements unenforceable. Thus, if a release agreement includes unlawful language, a court may rule that the entire agreement is not enforceable and allow the current or former employee to sue the employer, even though the employee has received monetary consideration for the release. Mr. Del Barto urges clients not to automatically use severance and settlement agreements already in their files or obtained from attorneys or human resource organizations without first considering the legal requirements and taking all steps to protect their companies.