IN THE UNITED STATES DISTRICT
COURT
FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
____________________________________
:
BARBARA DOUGHERTY, :
:
Plaintiff, :
:
v. : CA No. 05-02336
:
TEVA PHARMACEUTICALS USA, INC.,
:
:
Defendant. :
___________________________________ :
Table of Contents
Issue Presented
Procedural History
Argument
A. Section 220(d)
by its Terms Bars only Prospective Waivers
B. The
Department's Reasonable Interpretation of Section 220(d) Is Entitled to
Controlling Deference
Conclusion
Certificate of Service
BRIEF OF THE SECRETARY OF LABOR AS
AMICUS CURIAE
IN SUPPORT OF DEFENDANT'S MOTION TO
RECONSIDER THE
AUGUST 30, 2006 ORDER DENYING
DEFENDANT'S MOTION
FOR JUDGMENT ON THE PLEADINGS AND/OR
SUMMARY JUDGMENT
The Secretary of Labor ("Secretary")
submits this brief as amicus curiae in support of Defendant's Motion
to Reconsider this Court's August 30, 2006 Order ("Order") denying
Defendant's Motion for Judgment on the Pleadings and/or Summary Judgment.[1]
The Department respectfully submits that this Court should reconsider its
Order denying Defendant TEVA Pharmaceuticals' ("TEVA") Motion and, based
upon the reasons set forth below, should hold that the Department's
regulation at 29 C.F.R. 825.220(d) does not bar Plaintiff Barbara Dougherty
("Dougherty") from settling her claims for past violations of the Family and
Medical Leave Act ("FMLA" or the "Act"), 29 U.S.C. 2601 et seq.,
pursuant to a valid release of claims.[2]
The Secretary's interest in participating
in this action arises from her responsibility for administering the FMLA,
including promulgating legislative rules under the Act. See 29 U.S.C.
2654. Pursuant to her statutory authority, the Secretary has promulgated
regulations at 29 C.F.R. Part 825. The Secretary has a paramount interest
in the correct interpretation of these regulations.[3]
ISSUE PRESENTED
The Secretary's regulation at 29
C.F.R. 825.220(d) states, in part, that "[e]mployees cannot waive, nor may
employers induce employees to waive, their rights under FMLA." The question
presented is whether this legislative rule barring waivers of FMLA rights by
employees also prohibits settlements of FMLA claims based on past employer
actions.
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PROCEDURAL HISTORY
TEVA initially filed a Motion for
Judgment on the Pleadings and/or Summary Judgment ("motion"), with an
accompanying memorandum, on August 9, 2005. In May 2006, following this
Court's appointment of counsel for Dougherty and the filing of an Amended
Complaint, TEVA filed a supplement to its memorandum of law in support of
the motion. By letter dated August 1, 2006, this Court, sua sponte,
raised the issue of the application of the Department's regulation at
section 825.220(d) to the release at issue in the case and requested that
the parties submit supplemental briefing addressing the regulation.
Supplemental briefs were filed by Dougherty and TEVA on August 9 and 15,
2006, respectively.
This Court ruled on TEVA's motion on
August 30, 2006, noting that "the question of whether an employee can, as
part of the severance agreement, waive his or her right to sue for
violations of the FMLA appears to be a matter of first impression in this
circuit." Slip op. at 10.[4]
The Court began its analysis of the issue by noting that the FMLA is silent
as to the waiver of claims under the Act, and that the Secretary has the
authority to promulgate regulations under the FMLA. Id.; see
29 U.S.C. 2654.
This Court then analyzed the only
two federal appellate court decisions that address this issue, Faris v.
Williams WPC-1, Inc., 332 F.3d 316 (5th Cir. 2003), and Taylor v.
Progress Energy, Inc., 415 F.3d 364 (4th Cir. 2005), vacated June
14, 2006. Slip op. at 11-14.[5]
It rejected the distinction drawn by the Fifth Circuit in Faris
between the application of section 220(d) to waiver of substantive rights
and its application to proscriptive rights under the FMLA. Id. at
15-16; see Faris, 332 F.3d at 320-21.[6]
This Court instead adopted the overly broad reading of both the first
sentence of the regulatory text and the preamble discussion of the
regulation set forth in the vacated decision in Taylor, holding that
section 220(d) "prohibits an employee from waiving the right to sue for FMLA
violations through a severance agreement." Slip op. at 17.
ARGUMENT
SECTION 220(d) PROHIBITS ONLY THE
PROSPECTIVE WAIVER OF FMLA RIGHTS
This Court's ruling, which would
prohibit all settlements of FMLA claims that are not first approved by
either a court or the Department, is erroneous as a matter of law.[7]
It directly conflicts with the regulation itself, as well as with the
Department's reasonable interpretation of its own regulation and its
consistent practice since the Act's implementation. It also disregards
longstanding case law construing virtually every other federal employment
statute to encourage private settlements of claims, but to prohibit
prospective waivers of statutory rights. Requiring federal court or
Department supervision for the release of claims would prevent employers
from settling claims with finality, and employees from obtaining the
compensation due to them without the inevitable delay of filing a lawsuit or
seeking Department "supervision."
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A. Section 220(d) by its Terms Bars
only Prospective Waivers
This Court's Order, following the
Fourth Circuit's vacated opinion in Taylor, focused on the first
sentence of section 220(d). By its terms, however, that first sentence
regulates only the prospective waiver of FMLA rights and makes no
mention of the settlement or release of claims. These terms are
shorthand for a very important and well-understood dichotomy: the ability of
an employee to settle disputes based on past employer misconduct
versus the inability of an employee to agree to permit his employer to
engage in future misconduct. As the Third Circuit recognized in
DiBiase v. SmithKline Beecham Corp., 48 F.3d 719 (3d Cir.), cert.
denied, 516 U.S. 916 (1995), waiver of a claim of employment
discrimination is based upon past conduct and is distinct from waiving the
right to be free from discrimination in the future. See 48 F.3d at
729 (The district court's error was "in large part due to the conflation of
the notion of a 'right' with the notion of an accrued 'claim.' A right to
be free prospectively from certain forms of discrimination always is worth
something; however, whether a person has accrued a claim based on a right
depends entirely on what previously has occurred.").
This Court also followed the vacated
Taylor opinion in focusing on the word "waiver" instead of on the
word "rights" in the first sentence of the regulation. Slip op. at 16
n.10. It agreed with the mistaken conclusion in Taylor that the word
"waiver" indicates that the regulation applies both prospectively and
retrospectively. Id. The operative term in the regulation, however,
is not "waiver" but "rights," which, as made clear by the remaining
sentences in section 220(d), refers to an employee's future FMLA rights and
not to claims based on past employer actions.[8]
The second sentence of section
220(d) clearly indicates that the regulation is intended to bar the
bargaining away of employees' future FMLA rights, stating: "For example,
employees (or their collective bargaining representatives) cannot 'trade
off' the right to take FMLA leave against some other benefit offered by the
employer." 29 C.F.R. 825.220(d). The regulation makes clear, therefore,
that an employer could not, for example, offer a new employee six weeks of
paid maternity leave in exchange for waiving her right to 12 weeks of unpaid
FMLA-protected leave.
The final two sentences of the regulation
set forth the only exception to the bar on waiving future FMLA
rights. They begin, "This [bar] does not prevent an employee's voluntary
and uncoerced acceptance . . . of a 'light duty' assignment while recovering
from a serious health condition . . . ." 29 C.F.R. 825.220(d). Without
this "carve out," the regulation would have prevented employees who were on
FMLA leave from returning to work by voluntarily accepting a light-duty job,
because the offer of such a position could be viewed as an inducement to
waive their right to return to the same or an equivalent position. See
29 U.S.C. 2614(a)(1). The regulation goes on to make clear that when
employees voluntarily accept offers of "light duty" positions, their right
to restoration to the same or an equivalent position continues to run during
the time that they fill the modified position. When read in its entirety,
therefore, it is clear that section 220(d) addresses only prospective FMLA
rights. See Sekula v. FDIC, 39 F.3d 448, 454 (3d Cir. 1994) (in
interpreting a regulation, "[o]ne must look at the entire provision, rather
than seize on one part in isolation").[9]
Section 220(d)'s prohibition against the
prospective waiver of rights, but not the retrospective settlement of
claims, is consistent with the established precedent in employment law
disfavoring prospective waivers of rights, but encouraging settlement of
claims. See Alexander v. Gardner-Denver Co., 415 U.S. 36,
51-52 (1974) ("Although presumably an employee may waive his cause of action
under Title VII as part of a voluntary settlement, . . . an employee's
rights under Title VII are not susceptible of prospective waiver.");
Eisenberg v. Advance Relocation & Storage, Inc., 237 F.3d 111, 116-17
(2d Cir. 2000) ("Accordingly, a firm cannot buy from a worker an exemption
from the substantive protections of the anti-discrimination laws because
workers do not have such an exemption to sell, and any contractual term that
purports to confer such an exemption is invalid."); Adams v. Philip
Morris, Inc., 67 F.3d 580, 584 (6th Cir. 1995) ("It is the general rule
in this circuit that an employee may not prospectively waive his or her
rights under either Title VII or the ADEA."); Kendall v. Watkins, 998
F.2d 848, 851 (10th Cir. 1993) ("In other words, an employee may agree to
waive Title VII rights that have accrued, but cannot waive rights that have
not yet accrued."), cert. denied, 510 U.S. 1120 (1994).
Accordingly, section 220(d) is a
reasonable interpretation of the FMLA. As such, it is entitled to
controlling deference. See United States v. Mead Corp., 533 U.S.
218, 229 (2001) (when considering whether an agency's interpretation of the
statute is permissible, "a reviewing court . . . is oblig[ated] to accept
the agency's position if . . . the agency's interpretation is reasonable);
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
844 (1984) (an agency's interpretation must be upheld unless it is
"arbitrary, capricious, or manifestly contrary to the statute"); Sommer
v. The Vanguard Group, 461 F.3d 397, 399 n.2 (3d Cir. 2006)
(Department's FMLA regulations entitled to controlling deference);
Harrell v. United States Postal Serv., 445 F.3d 913, 927 (7th Cir. 2006)
(controlling Chevron deference accorded to Department's reasonable
interpretation of the FMLA's return-to-work medical certification provision
as contained in a legislative rule), petition for cert. filed, 75
U.S.L.W. 3066 (U.S. Aug. 2, 2006) (No. 06-192).
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B. The Department's Reasonable
Interpretation of Section 220(d) Is Entitled to Controlling Deference
Even if, contrary to the plain
meaning of section 220(d), the regulation is deemed ambiguous, the
Secretary's permissible interpretation of the regulation is entitled to
controlling deference. See Auer v. Robbins, 519 U.S. 452
(1997); see also Barnhart v. Walton, 535 U.S. 212, 217 (2002)
("Courts grant an agency's interpretation of its own regulations
considerable legal leeway."); Facchiano Constr. Co. v. United States
Dep't of Labor, 987 F.2d 206, 213 (3d Cir.) ("[A]n administrative
agency’s interpretation of its own regulations receives even greater
deference than that accorded to its interpretation of a statute."), cert.
denied, 510 U.S. 820 (1993).[10]
The regulation was never intended to restrict, nor has the Department ever
interpreted it as restricting, the retrospective settlement of FMLA claims.[11]
Rather, the Secretary, based on longstanding judicial precedent encouraging
settlement of employment claims, see, e.g., Carson v. Am. Brands, Inc.,
450 U.S. 79, 88 n.14 (1981), has consistently interpreted section 220(d)
to bar only the prospective waiver of FMLA rights and not the settlement of
FMLA claims.
In this regard, this Court erred in
concluding that the general reference in the preamble discussion of section
220(d) to the Fair Labor Standards Act ("FLSA") indicated the Department's
intention to bar the private settlement of claims under the FMLA. See
Slip op. at 16. Section 107(b)(1) of the FMLA authorizes the Secretary to
"receive, investigate, and attempt to resolve complaints of violations of
section 105 in the same manner that the Secretary receives, investigates,
and attempts to resolve complaints of violations of sections 6 and 7 of the
Fair Labor Standards Act." 29 U.S.C. 2617(b)(1). This provision provides
the Secretary the authority to establish the same administrative complaint
procedure that she utilizes under the minimum wage and overtime provisions
of the FLSA. It clearly does not, however, require the Secretary to
supervise all FMLA settlements -- a unique, judicially-imposed requirement
under the FLSA.
Consistent with the authorization in
section 107(b)(1) of the FMLA, the Secretary has established an
administrative process pursuant to which the Wage and Hour Division
investigates and attempts to resolve FMLA complaints in the same way that
FLSA complaints are handled. When FMLA complaints are settled in the
administrative process, the Secretary supervises those settlements in the
same manner as she does settlements under section 16(c) of the FLSA. See
29 U.S.C. 216(c). Thus, where the FMLA and FLSA differ is not in the manner
in which the Secretary supervises settlements, but rather in the scope of
settlements that must be supervised.
The judicial doctrine establishing that
FLSA rights cannot be waived or settled without federal court or Department
approval is based on policy considerations unique to the FLSA, and the
Department’s general reference in the preamble to "other labor standards
statutes such as the FLSA," 60 Fed. Reg. 2180, 2218 (Jan. 6, 1995), was by
no means intended to engraft this unique aspect of FLSA law onto the FMLA.[12]
Indeed, if the Department had wanted to link the FMLA and the FLSA in this
regard, it would have referred only to the FLSA (and, more specifically, to
its "supervised" settlement provision), as opposed to referring to "other
labor standards statutes."
The FLSA is a broad remedial statute
setting the floor for minimum wage and overtime pay. See Barrentine v.
Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 740 (1981); D.A.
Schulte, Inc. v. Gangi, 328 U.S. 108, 114-15 (1946); Brooklyn Sav.
Bank v. O'Neil, 324 U.S. 697, 706-07 (1945); Walton v. United
Consumers Club, Inc., 786 F.2d 303, 306 (7th Cir. 1986); Lynn's Food
Stores, Inc. v. United States, 679 F.2d 1350, 1353-54 (11th Cir. 1982).
It was intended to protect the most vulnerable workers who lacked the
bargaining power to negotiate a fair wage or reasonable work hours with
their employers. See Brooklyn Sav. Bank, 324 U.S. at 706-07. Based
on the courts' perception of the characteristics of the workers protected by
the FLSA, it is virtually alone among federal employment statutes in its
restriction on settlements.
Indeed, courts have rejected attempts to
apply a "supervision" requirement to other employment statutes, including
the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. 621 et seq.,
which also includes an enforcement provision that is expressly based on the
FLSA. See 29 U.S.C. 626(b) ("The provisions of this chapter shall be
enforced in accordance with the powers, remedies, and procedures provided in
sections 211(b), 216 (except for subsection (a) thereof), and 217 of [the
FLSA] . . . ."). Courts consistently have refused to apply to ADEA claims
the requirement that settlements must be approved by a court or supervised
by an administrative agency. See Coventry v. United States Steel
Corp., 856 F.2d 514, 521 n.8 (3d Cir. 1988) ("We are unpersuaded,
however, that the policy concerns of the FLSA that the Supreme Court sought
to advance by its decisions in Gangi and O'Neil are present in
ADEA cases such that a per se rule against releases is necessary.");
Runyan v. Nat'l Cash Register Corp., 787 F.2d 1039, 1043 (6th Cir.) (en
banc) (noting that purpose of the FLSA was "to secure 'the lowest paid
segment . . . a subsistence wage,'" whereas the ADEA was aimed at protecting
"an entirely different segment of employees, many of whom were highly paid
and capable of securing legal assistance without difficulty") (quoting
Gangi, 328 U.S. at 116), cert. denied, 479 U.S. 850 (1986).[13]
As the Supreme Court noted in Gilmer v. Interstate/Johnson Lane Corp.,
500 U.S. 20 (1991), "[N]othing in the ADEA indicates that Congress intended
that the EEOC be involved in all employment disputes. Such disputes can be
settled, for example, without any EEOC involvement." Id. at 28.
Indeed, when Congress did intend to regulate ADEA settlements, it enacted a
specific statutory provision for that purpose.[14]
The FMLA, which was enacted after the OWBPA amended the ADEA, is notably
devoid of any statutory provision restricting the voluntary settlement of
claims.
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The policy considerations underlying the
FMLA are more akin to those underlying the ADEA and Title VII than the FLSA.
The FMLA protects all segments of the workforce, from low wage workers to
highly paid professionals. Also, unlike the FLSA, almost all claims under
the FMLA are individual claims, generally brought by employees who have been
terminated or denied reinstatement and are seeking damages and equitable
relief. Thus, in these significant respects, the FMLA is more like Title
VII and the ADEA, both of which permit unsupervised settlement of claims,
than the FLSA. See United States v. N.C., 180 F.3d 574, 581
(4th Cir. 1999) (in entering a consent decree under Title VII, "a district
court should be guided by the general principle that settlements are
encouraged"); Rivera-Flores v. Bristol-Myers Squibb Caribbean, 112
F.3d 9, 11 (1st Cir. 1997) ("Courts have, in the employment law context,
commonly upheld releases given in exchange for additional benefits. Such
releases provide a means of voluntary resolution of potential and actual
legal disputes, and mete out a type of industrial justice. Thus, releases
of past claims have been honored under [Title VII and the ADEA].")
(emphasis added); Gormin v. Brown-Forman Corp., 963 F.2d 323 (11th
Cir. 1992) (collecting cases holding unsupervised settlement of ADEA claims
to be valid).
This Court also erred when it
concluded that the Department's preamble discussion of section 220(d)
indicated that the Department "appeared to acknowledge that § 825.220(d)
would prohibit soon-to-be-former employees from waiving their right to
recover for violations of the FMLA that occurred during their employment."
Slip op. at 15-16. Indeed, the Department's preamble discussion of section
220(d), like the regulation itself, focuses solely on the impact of the
regulation on the prospective waiver of the rights to leave and
reinstatement under the FMLA. See Senger, 2006 WL 2787852, at *3
(controlling deference to the Department's consistent interpretation of its
own regulation as contained in the preamble, a Wage and Hour opinion letter,
and the Department's amicus brief). The Department's silence as to
the specific comments regarding the impact of the regulation on the
settlement of FMLA claims in a severance agreement is properly viewed not as
an acknowledgment that such agreements are barred by the regulation, but
instead as an indication that the Department viewed such agreements as being
beyond the scope of section 220(d).
As the examples in the preamble make
clear, the Department viewed section 220(d) as barring only the prospective
waiver of rights. The first example (also included in the regulatory
provision) is that of an employee who waives her FMLA right to return to her
original position by accepting a light duty assignment. 60 Fed. Reg. at
2118-19. As discussed above, this is an explicit "carve out" to the bar on
the prospective waiver of FMLA rights.
The second example, which involves
early-out retirement programs, was added in direct response to a concern
about the impact of section 220(d) on such programs, specifically a concern
about the regulation's bar on the prospective waiver of rights. The
Department made clear in the preamble that an employee may be required to
waive her right to continue on FMLA leave (and to return to her position at
the end of the leave) as the condition for participation in an early-out
program. See 60 Fed. Reg. at 2219 ("[A]n employee on FMLA leave may
be required to give up his or her remaining FMLA leave entitlement to take
an early-out offer from the employer.").[15]
This, however, presents no obstacle because, as the preamble notes, if an
employee participates in such a program, the employee's "FMLA rights would
cease because the employment relationship ceases, and the employee would not
otherwise have continued employment." Id.[16]
Finally, the Department’s consistent and
long standing interpretation of section 220(d) as barring only the
prospective waiver of FMLA rights is borne out by its actions. Since the
passage of the FMLA, the Department has supervised only the settlement of
FMLA claims arising in connection with complaints filed with the Wage and
Hour Division. Cf. Sekula, 39 F.3d at 457 (deferring to an agency's
consistent application of an ambiguous regulatory provision). The
Department has never established a system for reviewing FMLA settlements in
which no administrative complaint has been filed, something it clearly would
have done had it intended section 220(d) to require such supervision.
In order to comply with such a
requirement, the Department would have to allocate significant resources to
establish a process for reviewing settlement of all FMLA disputes
(including severance agreements) that are not pending in court. Adding the
requirement of Department or court supervision will harm employees by
delaying resolution of their cases. Moreover, the shifting of resources
from complaint investigation to private party settlement supervision will
result in delays for those employees who have filed complaints with, and are
relying on, the Department to protect their rights under the FMLA. Such a
reallocation would also lessen the resources available to pursue FLSA
investigations, which would directly affect the Department's ability to
protect the rights of vulnerable low-wage workers.
In sum, section 220(d) bars only the
prospective waiver of FMLA rights and not the settlement of FMLA claims
based on past employer actions. Even if this legislative rule is deemed to
be ambiguous, however, the Department's permissible interpretation of its
own regulation is entitled to controlling deference. See Auer, 519
U.S. at 462.
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CONCLUSION
For the reasons set forth above, the
Secretary requests that this Court grant the Defendant's motion for
reconsideration.
Respectfully
submitted,
HOWARD M. RADZELY
Solicitor of
Labor
STEVEN J. MANDEL
Associate
Solicitor
PAUL L. FRIEDEN
Counsel for
Appellate Litigation
_______________________________
LYNN S. MCINTOSH
Attorney
U.S. Department
of Labor
Office of the
Solicitor
200 Constitution
Ave., N.W.
Room N-2716
Washington, D.C.
20210
(202) 693-5555
CERTIFICATE OF SERVICE
I hereby certify that on November 3,
2006, one paper copy of the foregoing Brief for the Secretary of Labor as
amicus curiae was served using Federal Express, postage prepaid, upon
the following counsel of record:
Marc S. Bragg, Esq.
230 West Market Street
West Chester, PA 19382
484-631-0092
Counsel for Plaintiff
Larry J. Rappoport, Esq.
Stevens & Lee
620 Freedom Business Center
Suite 200
King of Prussia, PA 19406
610-205-6039
Counsel for Defendant
Theresa M. Zechman
Stevens & Lee
25 North Queen Street
Suite 602
Lancaster, PA 17603
717-399-6644
Counsel for Defendant
_____________________________
LYNN S.
MCINTOSH
Attorney
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Footnotes:
[1]
On September 27, 2006, the Department of Labor ("Department") submitted a
letter to this Court requesting permission to file an amicus brief by
October 27, 2006, in support of Defendant's motion for reconsideration. The
Court granted the Department's request via telephone on October 4, 2006 and,
on October 25, 2006, granted the Department's request for additional time in
which to file the brief up to, and including, November 3, 2006.
[2]
The Department expresses no opinion on whether the release at issue in this
case is valid under applicable state law.
[3]
This Court, of course, has the inherent power to reconsider its August 30,
2006 Order in the interest of justice at any time prior to entry of a final
judgment. See United States v. Jerry, 487 F.2d 600, 604-06 (3d Cir.
1973); Deily v. Waste Mgmt., No. 00-1100, 2000 WL 1858717, at *1 (E.D.
Pa. 2000); Philadelphia Reserve Supply Co. v. Nowalk & Assocs., Inc.,
864 F. Supp. 1456, 1460-61 (E.D. Pa. 1994). The interests of justice are
served by reconsideration in this case because this Court based its order on
an erroneous understanding of the Department's waiver regulation at 29 C.F.R.
825.220(d). In reaching its conclusion, this Court did not have the benefit
of a full explication of the Department's interpretation of section 220(d)
as set forth below.
[4]
Whether a waiver of FMLA claims is barred by section 220(d) does not turn on
whether it takes the form of a general release in a severance agreement or
the settlement of a specific FMLA claim.
[5]
This Court was aware of the Fourth Circuit's order vacating its opinion in
Taylor. The Fourth Circuit did not give any reasons for the vacature.
However, the sole basis for Progress Energy's petition for rehearing in
Taylor was the panel's erroneous application of section 220(d) to void
the release in that case. The Department filed a brief as amicus curiae
in support of Progress Energy's petition for rehearing on the
ground that the Fourth Circuit misinterpreted the Department's waiver
regulation when it held that an employee could not release in a separation
agreement claims for violations of the FMLA that took place during the
course of the employee's employment. Oral argument pursuant to the Fourth
Circuit's grant of panel rehearing in Taylor took place on October
25, 2006, with the Department presenting argument as amicus.
[6]
The Department agrees with the Fifth Circuit's decision in Faris to
the extent that the court held that section 220(d) prohibits only the
prospective waiver of FMLA rights. The court in Faris erred,
however, in concluding that the prospective bar on waiver applied only to
the waiver of substantive rights and not the waiver of proscriptive rights
under the FMLA. See 332 F.3d at 320-21. Under the Fifth Circuit's
reasoning, while an employee could not prospectively waive her right to take
FMLA leave (a substantive right under the Act), she could prospectively
waive her right to sue for discrimination for having taken such leave (a
proscriptive right). The Department construes the regulation as barring the
prospective waiver of any right under the FMLA.
[7]
Contrary to the only appellate ruling on this issue (Faris), three
other district courts have concluded that the regulation prohibits both the
prospective waiver of FMLA rights and the settlement of FMLA claims. See
Brizzee v. Fred Meyer Stores, Inc., No. 04-1566, 2006 WL 2045857 (D.
Or. July 17, 2006), appeal docketed, No. 06-35757 (9th Cir. Sep. 6,
2006); Dierlam v. Wesley Jessen Corp., 222 F. Supp. 2d 1052 (N.D.
Ill. 2002); Bluitt v. EVAL Co. of Am., Inc., 3 F. Supp. 2d 761 (S.D.
Tex. 1998). Other courts at both the appellate and district court level,
however, have approved the validity of private settlements of FMLA claims
without referring to the regulation. See, e.g., Halvorson v. Boy Scouts
of Am., 215 F.3d 1326 (6th Cir. 2000) (unpublished table decision);
Schoenwald v. ARCO Alaska, Inc., 191 F.3d 461 (9th Cir. 1999)
(unpublished table decision); Kujawski v. U.S. Filter Wastewater Group,
Inc., No. 00-1151, 2001 WL 893918 (D. Minn. Aug. 7, 2001).
[8]
Indeed, even the definitions of waiver cited by the court in Taylor
implicitly acknowledge a distinction between 'claim' and 'right' by
referring to them separately. See Taylor, 415 F.3d at 370 (citing
definition of "waive" in Webster's Third New International Dictionary as
reading, in part, "to relinquish voluntarily (as a legal right) . . . to
refrain from pressing or enforcing (as a claim or rule)").
[9]
The Fourth Circuit in its vacated opinion in Taylor did not refer to
any portion of the regulatory text other than the first sentence. See
415 F.3d at 369-71.
[10]
Indeed, as the Supreme Court noted in Auer, where the Secretary's
position reflects "the agency's fair and considered judgment on the matter
in question," the fact that it is first articulated in a legal brief does
not lessen the deference it should be accorded. 519 U.S. at 462; see
also Senger v. City of Aberdeen, S.D., ___ F.3d ___, 2006 WL 2787852, at
*3 (8th Cir. 2006); Belt v. EmCare, Inc., 444 F.3d 403, 415-17 (5th
Cir.), cert. denied, No. 05-1658, 2006 WL 2795157 (Oct. 2, 2006);
United States v. Occidental Chem. Corp., 200 F.3d 143, 151-52 (3d Cir.
1999). Accordingly, the Department's interpretation as set out in this
brief also is entitled to controlling deference.
[11]
The Department has not issued any opinion letters directly addressing
section 220(d). Two opinion letters issued under the interim regulations
did, however, address the regulation. Both letters involved situations in
which employees sought prospectively to waive their right to FMLA-protected
leave. The Department's responses in each case made clear that the
employees may not prospectively waive their FMLA rights. See Wage
and Hour Division Opinion Letters FMLA-43 (Aug. 24, 1994) and FMLA-49 (Oct.
27, 1994), available at
http://www.dol.gov/esa/whd/opinion/fmlana_prior2002.htm.
[12]
This Court specifically declined to determine whether court approval was
required to settle an FMLA claim in litigation, noting that such a
requirement was beyond the plain language of section 220(d). See
Slip op. at 16 n.11.
[13]
It should be noted that the ADEA enforcement provision specifically
references section 216 of the FLSA, which provides the Department with
authority to supervise settlements. See 29 U.S.C. 626(b). The FMLA
enforcement provision lacks any reference to the FLSA "supervised"
settlement provision. See 29 U.S.C. 2617(b)(1).
[14]
By enacting the Older Workers Benefit Protection Act ("OWBPA"), Pub. L. No.
101-433, § 201, 104 Stat. 978, 983-84 (1990) (codified at 29 U.S.C. 626(f)),
Congress regulated the settlement of ADEA claims by delimiting the elements
necessary to establish a knowing and voluntary settlement under the
statute. Even after the OWBPA, however, ADEA claims are still subject to
unsupervised settlement, so long as the conditions set forth in 29 U.S.C.
626(f) are met.
[15]
It should be noted that such early-out retirement programs normally require
employees to execute a general release of claims related to their employment
as a condition of participation in the program. The fact that the
Department did not address the impact of the waiver bar on such releases in
its preamble discussion of these programs is further indication that it
viewed the settlement of FMLA claims as beyond the scope of the regulation.
[16]
The problem with equating the waiver of FMLA rights with the settlement of
FMLA claims in applying section 220(d) is made apparent in this statement.
If, as is implicit in this Court's reasoning, the term "FMLA rights"
encompasses the assertion of an FMLA claim based on past employer actions,
then, by stating that FMLA rights cease with the employment relationship,
the Department would have been indicating that an employee’s ability to
assert an FMLA claim also ends with the termination of her employment.
Clearly, the Department never intended such a result; rather, it was
referring only to an employee’s future rights to continue on FMLA leave and
return to her position, and not her right to file a claim based on past
employer actions.
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