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Orlando Employment Law Lawyer - Family & Medical Leave Act

Can your rights under the Family Medical Leave Act of 1993 be waived?

Congress enacted the Family Medical Leave Act of 1993, 29 U.S.C. §§ 2601, et seq. ("FMLA") to "balance the demands of the workplace with the needs of families." 29 U.S.C. §2601(b)(1). The FMLA provides that "an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:" (1) "a serious health condition that makes the employee unable to perform the functions of the position of such employee" or (2) "to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition." 29 U.S.C. §2612(a)(1). An employee on FMLA leave must be reinstated to the position she held before they took FMLA leave. 29 U.S.C. §2614(a). The FMLA prohibits employers from retaliating against employees who exercise or attempt to exercise their rights under the FMLA, 29 U.S.C. §2615(a), and employers who violate the FMLA are subject to damages and equitable relief, 29 U.S.C. §2617(a)(1)(A)-(B).

Recently, in Paylor v. Hartford Fire Insurance Company, 748 F.3d 1117 (11th Cir. 2014), the United States Court of Appeals for the Eleventh Circuit addressed the question of whether an employee waived her FMLA claims against her former employer by signing a severance agreement. Paylor was an employee of Hartford Fire Insurance Company ("Hartford") who submitted a request for FMLA leave in late August or early September of 2009. On September 11, 2009, Paylor received a performance review which criticized her work performance. On September 16, 2009, Paylor's supervisor gave her a choice of either accepting a one-time offer of 13 weeks of severance benefits in exchange for signing a severance agreement, which waived any claims she might have had under the FMLA, or agree to accept a performance-improvement plan ("PIP"), requiring her to meet various performance benchmarks or face termination. Paylor chose to sign the Severance Package.

Paylor subsequently sued Hartford alleging that it interfered with her FMLA rights, retaliated against her for exercising her FMLA rights, and that the Severance Agreement should be unenforceable because the law did not allow her to waive her FMLA rights. Hartford asserted that Paylor's FMLA claims were waived because she signed the Severance Agreement.

The United States District Court for the Middle District of Florida found that the Severance Agreement was enforceable, and that Paylor waived her FMLA claims, because the alleged unlawful conduct, presenting Paylor with the option of a PIP or signing the Severance Agreement, occurred before she signed the Severance Agreement and, thus, were not "prospective" claims pursuant to the Department of Labor's ("DOL") regulations, 29 C.F.R. §825.220(d).

The DOL's regulation, 29 C.F.R. §825.220(d), provides that "[e]mployees cannot waive, nor may employers induce employees to waive, their prospective rights under FMLA. For example, employees (or their collective bargaining representatives) cannot trade off the right to take FMLA leave against some other benefit offered by the employer. This does not prevent the settlement or release of FMLA claims by employees based on past employer conduct without the approval of the [DOL] or a court."

Paylor appealed the District Court's decision to the United States Court of Appeals for the Eleventh Circuit arguing, among other things, that her waiver of FMLA claims was not enforceable because the FMLA does not permit employees to waive "prospective rights" under the FMLA.

The Eleventh Circuit acknowledged that the only issue it needed to resolve was the meaning of the word "prospective" as it concerns FMLA rights. It found that "prospective rights" under the FMLA are those allowing an employee to invoke FMLA protections at some unspecified time in the future. As such, the Eleventh Circuit found that the DOL's prohibition under §825.220(d), of "prospective" waiver means only that an employee may not waive FMLA rights, in advance, for FMLA violations that have yet to occur. Therefore, the Eleventh Circuit concluded that Paylor waived her FMLA rights because the Severance Agreement asked her to release her past FMLA claims rather than her future FMLA claims. Because Paylor alleged that Hartford's illegal conduct occurred before she signed the Severance Agreement she waived those FMLA claims.

Contact our Orlando FMLA Claim Lawyer

Paylor illustrates the dangers employees may encounter when they sign a severance package or an employment agreement without seeking the advice of counsel before doing so. Prior to signing any employment agreement or severance package it is important to have an attorney review the agreement to ensure that you are fully informed of all of your rights and that you do not inadvertently waive any rights that you are otherwise entitled to under the FMLA or any other law. If your employer has presented you with a severance package, or any other employment agreement, call the Orlando employment law attorneys at J. Allen Law P.L. who will carefully analyze the agreement and fully advise you of your rights. You can reach us at (407) 205-2330. You may also fill out the online form provided at the top of this page and our Orlando FMLA violation attorney will contact you shortly. Your privacy is important to us and we will keep your information confidential.


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