Eleventh Circuit Defines ‘Prospective Rights' That Aren't Waivable by Workers Under FMLA

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By Jay-Anne B. Casuga  

April 9 --A former Florida insurance analyst lacks Family and Medical Leave Act interference and retaliation claims because she signed a severance agreement that waived only her retrospective rights under the law and not her prospective FMLA rights, the U.S. Court of Appeals for the Eleventh Circuit ruled April 8.

Addressing a question of first impression in the circuit, the court defined the meaning of the word “prospective” with respect to statutory rights that are nonwaivable under 2009 amendments to the FMLA's implementing regulations.

The Eleventh Circuit rejected an expansive interpretation of “prospective” that would define it as an “unexercised” right. Instead, the court said prospective rights under the FMLA are “those allowing an employee to invoke FMLA protections at some unspecified time in the future.”

In other words, the FMLA's prohibition against prospective waivers “means only that an employee may not waive FMLA rights, in advance, for violations of the statute that have yet to occur,” the court said.

Applying that standard to the present case, the court affirmed summary judgment to Hartford Fire Insurance Co. It found that Blanche Paylor's severance agreement properly waived only her retrospective FMLA claims, which were based on alleged interference and retaliatory conduct that occurred before she signed the contract.

In addition, the court rejected Paylor's argument that her waiver was not knowing and voluntary.

Judge Gerald B. Tjoflat wrote the opinion, joined by Judges Emmett R. Cox and Arthur L. Alarcon.

Worker Signed Pact After Seeking FMLA Leave

According to the court, Paylor sought FMLA leave in September 2009 to care for her ill mother. She and Hartford dispute whether the company actually approved the request.

Thereafter, Paylor received a negative performance review and supervisors gave her a choice between accepting a performance improvement plan or signing a severance agreement. The latter option included 13 weeks of severance benefits in exchange for Paylor waiving any FMLA claims.

Paylor chose to sign the severance agreement, but later joined two other workers in suing Hartford for FMLA interference and retaliation.

The U.S. District Court for the Middle District of Florida granted summary judgment to Hartford, finding that Paylor waived her FMLA claims when she signed the agreement.

Regulatory History of FMLA Waivers

Affirming on appeal, the Eleventh Circuit first explained that the FMLA's implementing rules at 29 C.F.R. § 825.220(d) previously didn't include the word “prospective” in its discussion of nonwaivable statutory rights.

The word's absence led to a circuit split on whether the FMLA prohibited prospective or retrospective rights, or both. In 2008, the Labor Department amended the FMLA regulations to clarify that employees can't waive their prospective rights under the FMLA . The amendments went into effect in January 2009.

The rules further provided that the prohibition against prospective waivers doesn't “prevent the settlement or release of FMLA claims by employees based on past employer conduct without the approval of the [DOL] or a court.”


The Eleventh Circuit defined “prospective rights” as those that let employees invoke the FMLA's protections at “some unspecified time in the future.” That definition would prohibit, for example, an employer from offering one-time cash payments to new employees in exchange for a waiver of any future FMLA claims, the court said.  


“It is now, therefore, well-settled that an employee may not waive 'prospective' rights under the FMLA, but an employee can release FMLA claims that concern past employer behavior,” the court said. “The only remaining issue is the meaning of the word 'prospective' as it concerns FMLA rights, which is a question of first impression in our circuit.”

'Prospective' Doesn't Mean 'Unexercised.'

The Eleventh Circuit rejected Paylor's argument that “prospective rights” should mean “the unexercised rights” of eligible employees to take FMLA leave or to be restored to an equivalent position upon returning from leave.

The court said such an interpretation is “too expansive,” given that all eligible employees have unexercised rights to FMLA leave.

“If by 'prospective' rights the DOL regulation really meant 'unexercised' rights, the FMLA would make it unlawful to fire any eligible employee, or at least any eligible employee with an outstanding request for FMLA leave,” the court said. “That is not the law: substantive FMLA rights are not absolute.”

Instead, the court defined “prospective rights” as those that allow employees to invoke the FMLA's protections at “some unspecified time in the future.”

That definition would prohibit, for example, an employer from offering one-time cash payments to new employees in exchange for a waiver of any future FMLA claims, the court said.

“That waiver would be 'prospective,' and therefore invalid under the FMLA, because it would allow employers to negotiate a freestanding exception to the law with individual employees,” the court said.

Agreement Waived Only Retrospective Rights

Paylor alleged that Hartford engaged in FMLA interference and retaliation by making her choose between a PIP and a severance agreement after she had requested FMLA leave.

That alleged unlawful conduct occurred before Paylor signed the severance agreement, which “wip[ed] out any backward-looking claims she might have had against her employer,” the court said.

“In signing the agreement and accepting her severance benefits, Paylor settled claims 'based on past employer conduct,' … and so the District Court did not err in concluding that the agreement was valid and that it entitled Hartford to judgment as a matter of law,” the court concluded.

Furthermore, the Eleventh Circuit found no merit in Paylor's contention that she didn't knowingly and voluntarily waive her FMLA rights when she signed the severance agreement.

Given the agreement's clear wording and Paylor's testimony that she understood the waiver language, as well as her education and more than 20 years of experience in the insurance industry, the appeals court affirmed the lower court's ruling that Paylor's waiver was knowing and voluntary.

Mary E. Lytle, David B. Barszcz and Danielle L. Upton of Lytle& Barszcz in Maitland, Fla., represented Paylor. Donald C. Works III, Jessica B. Anderson and Alicia M. Chiu of Jackson Lewis in Orlando, Fla., represented Hartford.


To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://op.bna.com/dlrcases.nsf/r?Open=jaca-9hzpnc.

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