The Family and Medical Leave Act: To Waive, or Not to Waive

The Family and Medical Leave Act (FMLA), passed in 1993, was one of the first federal laws in the United States that addressed family and medical leave. Congress vested the Secretary of Labor (Secretary) with the authority to prescribe regulations necessary to carry out this legislation. Pursuant to this authority, the Secretary issued a regulation that purported to prohibit employees from waiving their rights under the FMLA. Although this regulation is valid, the question of whether an employee can waive her FMLA claims as part of a severance agreement has led to inconsistent results.In this note, Carol Wong asserts that parties should be permitted to settle their FMLA claims and then asks what standard should be applied to de-termine the validity of such waivers. In order to answer this question, Wong scrutinizes employees’ ability to release their claims under other federal employment statutes and ultimately proposes that Congress amend the FMLA to include a clear and comprehensive guideline for waivers modeled on provisions of the Older Workers Benefit Protection Act. Such guidelines adequately balance competing tensions between the costs and benefits of waivers, serve both the employer’s and employee’s interests, and reflect the interrelationship between all employment statutes.

The full text of this Note is available to download as a PDF.