This Comment addresses whether a waiver of rights in an employee severance agreement which bars an employee from pursuing FMLA claims against an employer should be a valid and enforceable contract provision. Part II examines the history and purposes of the FMLA, which give rise to public policy arguments against FMLA severance agreement waivers. Part III explores some of the arguments that have been offered in support of FMLA waivers, and the various shortcomings of these purported justifications. Part IV turns to the many arguments against enforceability, and principally the "anti-waiver approach" which would make FMLA waivers illegal. Finally, Part V concludes that the anti-waiver approach should be adopted, or, in the alternative, that waivers should be enforceable only after the agreement is scrutinized by a court or the Secretary of Labor, or the waiver meets heightened and explicit waiver requirements. The FMLA reflects that it is "neither fair nor necessary to ask working Americans to choose between their jobs and their families." The approaches offered in this Comment would encourage FMLA compliance by not allowing employers to easily contract around their obligations under the Act - obligations which are vital to ensuring that employers do not force employees to make unfair and unnecessary choices between what are often the two most important aspects of their lives.
Waiving the Effectiveness of the FMLA: The Anti-Waiver Approach to Enforceability of FMLA Severance Agreement Waivers,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol45/iss1/6