According to the 4th Circuit the trial court was led astray by the 5th Circuit's opinion in Faris v. Williams WPCI, Inc., 332 F.3d 316 (5th Cir. 2003) which had taken a restrictive view of the regulation, holding it applied only to prospective waivers. A position with which it flatly disagreed.
The fact pattern in Taylor is exactly the kind that one would expect -- a severance package with a release that the employer no doubt thought included FMLA claims. Given the long statute of limitations and lack of adminstrative pre-requisites for FMLA claims, if Taylor is accepted by other courts, it could cause a lot of headaches for employers who thought that they were in the clear.
Brian has an interesting suggestion for a summary proceeding in federal court that could review such settlements. I have a different one. With a split between the 4th and 5th Circuits -- let's ask the new Supreme Court with Justice Roberts to decide. On second thought, I am not sure that is a good idea. We might well see Justice Roberts borrowing from his dissent in AFL-CIO v. Chao, 409 F.3d 377 (D.C. Cir. 2005), where as I noted the other day in supporting the power of the Secretary of Labor to issue regulations he wrote:
Perhaps the Secretary was wrong ... That is not the question before the court. The statute plainly delegates the authority to make such policy-laden judgments to the Secretary ... and the Secretary has reasonably exercised that authority.Maybe we should go to Plan B, deal with this in the current move to make technical corrections to the FMLA, or since that has not made a lot of progress, maybe it's time to amend the OWBPA to cover FLSA and FMLA claims.