Solicitor General: Pro-worker ruling on FMLA waivers was wrong, but never mind…
May 21, 2008
The United States has urged the Supreme Court to let the 4th Circuit’s pro-worker ruling stand in Progress Energy v. Taylor, a dispute over a waiver of rights under the Family and Medical Leave Act.
In a brief sought by the justices, the Solicitor General said the high court should deny cert in the case. A denial would allow Barbara Taylor to pursue her FMLA lawsuit against her former employer, even though she signed a waiver of all claims in exchange for her severance package.
The 4th Circuit has twice revived Taylor’s suit, holding that a Department of Labor regulation bars employees from waiving FMLA rights. (The second holding came after the Department of Labor said the regulation was not meant to bar settlement of claims of past violations.)
The Solicitor General’s brief insists the 4th Circuit’s interpretation is wrong, conflicts with a 5th Circuit decision and could wreak havoc on employers. Still, it concludes Supreme Court review is not warranted “at this time.”
Why? Because the Labor Department is considering a revision to the regulation, §825.220(d), which would “eliminate any ambiguity … and effectively abrogate the Fourth Circuit’s decision — at least on a going forward basis,” the brief says.
Hat tip: SCOTUSblog, hosted by Akin Gump Strauss Hauer & Feld, which is representing Progress Energy in the Supreme Court case.
BARBARA GRZINCIC, Managing Editor/Law
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UPDATE: The Supreme Court has declined to review the FMLA waiver case, Progress Energy Inc. v. Barbara Taylor, letting the 4th Circuit’s pro-worker decision stand.