The answer to this question depends on your Federal Circuit’s interpretation
of the word “prospective.” In 2009, the Department of Labor
amended a regulation to specifically prohibit the waiver of an employee’s
“prospective” rights under the Family and Medical Leave Act
(“FMLA”). This past year, the Eleventh Circuit issued a decision
interpreting, for the first time, the meaning of the term “prospective”
in this context. The Eleventh Circuit held that this provision only means
that an employee may not waive FMLA rights, in advance, for violations
of the statute that have yet to occur.
This may seem like a clear “win” for employers, since employees
can be asked to waive FMLA claims as part of a severance agreement - but
there is a benefit for employees as well. Employees in the 11th Circuit appear to be free to settle FMLA claims without seeking approval
from the Court, or the Department of Labor.
An experienced employment attorney can assess the facts of your case and
determine whether you have an FMLA claim against your employer.