Eleventh Circuit Clarifies the Meaning of “Prospective Waivers” of FMLA Rights

FMLA 1BY:  TIMOTHY C. HAUGHEE & RACHEL D. GEBAIDE

MAY 30, 2014

It is well-settled federal law that an employee may not waive “prospective” rights under the Family and Medical Leave Act (“FMLA”), but an employee can release FMLA claims that concern past employer behavior. Last month, the United States Court of Appeals for the Eleventh Circuit clarified what constitutes “prospective” rights for purposes of FMLA waivers.

In Paylor v. Hartford Fire Insurance Company, the plaintiff was given a choice by her employer: either (A) sign a severance agreement containing, among other things, a waiver of any claims that she might have had against her employer under the FMLA in exchange for severance pay, or (B) agree to a performance improvement plan requiring the plaintiff to meet various performance benchmarks or face termination. The plaintiff opted to sign the severance agreement, and her employment terminated.

Later, the plaintiff sued the company, alleging, among other things, that the company interfered with her FMLA rights and retaliated against her for exercising her FMLA rights prior to her termination. The company argued that the plaintiff had waived all FMLA claims when she signed the severance agreement. In response, the plaintiff claimed that the waiver contained in the severance agreement did not apply because waivers are not valid as to “prospective” FMLA claims and that she had an outstanding (i.e., prospective) request for FMLA leave at the time she signed the severance agreement.

On appeal, the Eleventh Circuit considered the meaning of the word “prospective” as it relates to waivers of FMLA rights. In its opinion, the court rejected as overly expansive the plaintiff’s interpretation that “prospective rights” under the FMLA means “unexercised” rights of a current eligible employee to take FMLA leave. Instead, the court found that “prospective rights” under the FMLA “are those allowing an employee to invoke FMLA protections at some unspecified time in the future.” The court focused on the fact that a prospective waiver is a waiver of something that “has not yet occurred.”

Applying that standard to the facts of the case, the Eleventh Circuit found that the plaintiff had not waived any “prospective” FMLA rights when she signed the severance agreement because the alleged conduct that the plaintiff complained of all happened before she signed the severance agreement. As a result, the Eleventh Circuit upheld a lower court’s judgment in favor of the company.

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