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Employment Law No. 02-50446, 5/27/2003. Click here for the full text of this decision FACTS: Carol Faris worked as an occupational health specialist for Nextira LLC from November 1997 to June 1999, when Susan Baird, her supervisor, terminated her, citing poor performance. Faris received two weeks’ pay in lieu of notice. On the same day, she was offered an additional $4,063, the equivalent of one month’s salary, in exchange for signing a release that purported to waive her rights to, inter alia, “all other claims arising under any other federal, state or local law or regulation;” it did not specifically mention the FMLA. She also received a memorandum advising that she had 45 days to consider the release and seven days to revoke if she signed, though the parties dispute whether she was so advised verbally. Faris signed the release and received $4,063; she understood that the payment was in return for the signing of the release. She has not tendered back the payment. Faris sued Nextira and Baird, asserting she was fired in retaliation for asserting her rights under the FMLA. Following discovery, defendants moved for summary judgment as to the enforceability of the release, and Faris moved for partial summary judgment on whether the release was per seunenforceable under 29 C.F.R. �825.220(d). The court denied defendants’ motion and granted Faris’, holding that the plain language of the regulation dictated that FMLA claims are not waivable. The district court certified the questions of law addressed in its summary judgment order under 28 U.S.C. �1292(b), and this court granted defendants leave to bring this interlocutory appeal. HOLDING: Reversed and rendered. Defendants argue that the plain language of the regulation demonstrates that it does not reach retaliation claims under FMLA by former employees. Defendants focus in part on the meaning of the term “employee,” reasoning that the term implicitly refers only to currentemployees and cannot extend to formeremployees. Faris argues that the plain language does reach former employees, and this was the district court’s conclusion. In the context of this regulation, there are strong indications that “employee” refers only to currentemployees. It certainly cannot be said that the usage unambiguously encompasses former employees. Defendants argue that the regulation extends only to “substantive rights” under the FMLA, rather than to post-dispute causes of action for retaliation. The proper focus is on the meaning of the phrase “rights under FLMA,” which in context limits the regulation to prospective waivers of rights under the statute. Several factors support the interpretation that this regulation applies only to waiver of substantive rights under the statute, such as rights to leave, reinstatement, etc., rather than to a cause of action for retaliation for the exercise of those rights. The statute and regulation consistently use the term “rights under the law” or “rights under FMLA” to refer to the statutory rights to leave, certain conditions of that leave, and restoration, as set forth in 29 U.S.C. ��2612-14. Conversely, although �825.220 explicates the requirements of 29 U.S.C. �2615(a), the regulation never refers to the cause of action for damages as a right under FMLA. Indeed, the regulation begins with the title “How are employees protected who request leave or otherwise assert FMLA rights?” It then goes on to describe how FMLA rights are protected, discussing the prohibition of discrimination as a method of protecting those rights. The cause of action for discrimination, however, is never described as an FMLA right itself, within the regulation or elsewhere. Subsection (d) must be read in conjunction with the heading describing protections for employees who “request leave or otherwise assert FMLA rights,” because it is responsive to that heading, limiting waiver of rights considered in the heading. The examples of nonwaivability, quoted above, concern prohibitions on the prospective waiver of rights under FMLA. In the examples, the rights to leave and restoration are the “rights under FMLA.” The cause of action for retaliation is unaddressed by these examples, but rather is a protectionfor FMLA rights, the waiver of which is not prohibited by the regulation. This is consistent with the rest of the language of the regulation. A plain reading of the regulation is that it prohibits prospective waiver of rights, not the post-dispute settlement of claims. The court’s reading of the regulation is bolstered by public policy favoring the enforcement of waivers and the knowledge that similar waivers are allowed in other regulatory contexts. The court interprets the regulation to apply only to waivers of substantive rights under the FMLA, rather than to claims for money damages, consistent with public policy and the law under similar regulatory regimes. In practice, this may render the regulation applicable only to currentemployees, as defendants suggest, but the court does not resolve that question. The court concludes that the regulation did not render Faris’ waiver of her claims under the FMLA unenforceable. OPINION: Smith, J.; Garwood, Smith and Barksdale, JJ.

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