We have previously reported on Taylor v. Progress Energy, Inc., [http://www.fenwick.com/publications/6.5.4.asp?mid=26] where the Fourth Circuit Court of Appeals held that an employee may not waive, as part of a separation agreement and release of claims, prospective or retrospective FMLA rights absent approval of the release by a court or the federal Department of Labor. Both the Fifth Circuit Court of Appeals, as well as the DOL itself, have taken a different view and held that retrospective FMLA rights can be released even without court or DOL approval. Now, the Seventh Circuit Court of Appeals, in Butler v. Merrill Lynch, has joined the Fifth Circuit and DOL interpretation of the applicable FMLA regulations. Thus, we continue to have a split of authority in this area, and the United States Supreme Court has refused to take up the matter (at least in its upcoming term). Proposed new regulations by the DOL to resolve the ambiguity are cycling through the system, but this issue of the enforceability of releases of past FMLA rights clearly remains a moving target. Neither the Ninth Circuit Court of Appeals (covering California and other Western states) nor the California state courts have ruled on this issue.