In Taylor, the employee accepted a $12,000 severance package and signed a release of all claims. She then sued her employer for violating both her substantive FMLA rights and her proscriptive FMLA rights to be free from retaliation for complaining about the employer's FMLA abuses. concerned. The district court, relying on Faris v. Williams WPCI, Inc., 332 F.3d 316 (5th Cir. 2003), held that § 825.220(d) prohibits only the prospective waiver of substantive FMLA rights. Thus, according to the district court, the regulation did not apply to (1) the retrospective waiver or release of FMLA claims or (2) the waiver or release of claims that an employer has discriminated or retaliated against an employee for the exercise of her substantive FMLA rights. The Fourth Circuit disagreed with the district court and split with the Fifth Circuit's interpretation in Faris:
We disagree with the district court’s interpretation of § 825.220(d). The regulation’s plain language prohibits both the retrospective and prospective waiver or release of an employee’s FMLA rights. In addition, the regulation applies to all FMLA rights, both substantive and proscriptive (the latter preventing discrimination and retaliation). Finally, the DOL, by recognizing that the FMLA’s enforcement scheme is analogous to that of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., has indicated that § 825.220(d) permits the waiver or settlement of FMLA claims only with the prior approval of the DOL or a court.It would be nice if there were a summary proceeding available in the federal courts to obtain approval of FMLA and FLSA settlements. Have a special master appointed who could review the facts and the amount of the settlement, and give a speedy thumbs up or thumbs down would be great. Most employers balk at the prospect of involving the DOL in their affairs just to settle one employee's claim. But if an employer realizes it has some exposure and wants to settle with the employee, they shouldn't have to involve the courts or the DOL just to get a good release of the claims--especially where the employee is represented by counsel.