Muniza Bawaney


A circuit split has recently developed regarding the correct interpretation of 29 C.F.R. § 825.220(d), a regulation issued pursuant to the Family and Medical Leave Act of 1993, which states in pertinent part, "Employees cannot waive, nor may employers induce employees to waive, their rights under FMLA." The Fifth Circuit correctly concluded that 29 C.F.R. § 825.220(d) bars only the prospective waiver of substantive rights under the FMLA and does not reach the post-dispute release or settlement of FMLA claims. Subsequently, the Fourth Circuit alternatively concluded that § 825.220(d) prohibits the prospective and retrospective waiver or release of both the substantive and proscriptive FMLA rights, except where prior approval from a court or the Department of Labor is obtained. In its amicus curiae brief, the Department of Labor itself stated that the Fourth Circuit's interpretation of § 825.220(d) was "erroneous," recognizing that the regulation's proper construction bars only the prospective waiver of FMLA rights, not the private settlement of past FMLA claims.

This comment argues that the Fifth Circuit's interpretation of § 825.220(d) is correct based upon the regulation's plain language, legislative history, and public policy considerations. Moreover, the Fifth Circuit's decision leads to a more practical and efficient result for not only employers and employees, but also the courts and the Department of Labor. The Fourth Circuit has recently agreed to a panel rehearing of its earlier decision and should take this opportunity to follow the Fifth Circuit's reasoning and reach the correct result, therefore resolving the circuit split.

Included in

Law Commons