Taylor v. Progress Energy Inc ( 2005 )

Rehearing granted, June 14, 2006
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BARBARA TAYLOR, 
Plaintiff-Appellant,
v.  No. 04-1525
PROGRESS ENERGY, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
Malcolm J. Howard, District Judge.
(CA-03-73-7-H)
Argued: February 1, 2005
Decided: July 20, 2005
Before MICHAEL and DUNCAN, Circuit Judges,
and Robert E. PAYNE, United States District Judge for the Eastern
District of Virginia, sitting by designation.
Reversed in part, vacated in part, and remanded by published opinion.
Judge Michael wrote the opinion, in which Judge Duncan and Judge
Payne joined.
COUNSEL
April Gordon Dawson, DAWSON, DAWSON & DAWSON, P.A.,
Graham, North Carolina, for Appellant. Zebulon Dyer Anderson,
SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL &
JERNIGAN, Raleigh, North Carolina, for Appellee.
2 TAYLOR v. PROGRESS ENERGY, INC.
OPINION
MICHAEL, Circuit Judge:
Barbara Taylor sued Progress Energy, Inc. (Progress), the parent
company of her former employer, Carolina Power & Light Company
(CP&L), alleging violations of her rights under the Family and Medi-
cal Leave Act of 1993 (FMLA or Act), 29 U.S.C. § 2601 et seq.,
including the violation of (1) her substantive right to twelve weeks of
unpaid leave to deal with a serious health condition and (2) her pro-
scriptive right not to be discriminated or retaliated against for exercis-
ing her substantive FMLA rights. Progress argued in its motion for
summary judgment that a release Taylor signed constituted a valid
waiver of her FMLA claims. The district court granted Progress’s
motion, thereby rejecting Taylor’s argument that 29 C.F.R.
§ 825.220(d), a Department of Labor (DOL) regulation, bars the
waiver or release of FMLA rights. We conclude that § 825.220(d)
prohibits the release as it relates to Taylor’s FMLA claims and that
the regulation is valid under Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984). We therefore
reverse the district court’s summary judgment order and remand for
further proceedings.
I.
Because the district court granted Progress’s motion for summary
judgment, we state the facts in the light most favorable to Taylor, the
non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). In 1993 Taylor started working for CP&L, a subsidiary
of Progress, in the Document Services Unit at the Brunswick Nuclear
Plant in North Carolina. She was originally hired as a technical aide
and later became a data management assistant. In April 2000 she
began experiencing extreme pain and swelling in her right leg. Taylor
consulted her doctor, who ordered a week of bed rest that caused her
to miss five days of work in late April or early May. The doctor
informed Taylor that she would need to undergo a series of medical
tests, including heart tests, in an effort to determine the cause of her
symptoms. Thereafter, during the months of June and July, Taylor
missed a number of days of work due to medical testing and treat-
ment. Immediately after her first health-related absence in April or
TAYLOR v. PROGRESS ENERGY, INC. 3
May, and again when she had to miss work for medical tests in June
and July, Taylor asked a representative of CP&L’s human resources
department about the possibility of leave under the FMLA. The repre-
sentative told Taylor that she was not eligible for FMLA leave
because she had not been absent from work for more than five con-
secutive days at any one time.
In August 2000 Taylor underwent a spinal tap in a further effort to
determine the cause of her health problems. Complications from this
procedure caused her to miss a full week (five days) of work and
additional days in the following weeks. In October Taylor received a
written warning from her supervisor and the human resources repre-
sentative stating that she "had exceeded the company’s average sick
time." J.A. 53. When Taylor sought guidance on how best to handle
her health-related absences, she was told simply that she needed to
improve her attendance. In November Taylor underwent more testing
that kept her out of work for another five days. This testing revealed
that an abdominal mass was the cause of the pain and swelling in
Young’s leg, and her doctor recommended immediate surgery to
remove the mass. Taylor informed the human resources representative
of the most recent test results and again asked whether any of her
missed time from work qualified as FMLA leave. Again, the depart-
mental representative answered that the missed time did not qualify
because Taylor had not been out of work for more than five consecu-
tive days. Taylor had surgery to remove the abdominal mass in
December 2000. She was out of work for approximately six weeks
and was told that this period qualified as FMLA leave. Taylor later
discovered that she had been credited with FMLA leave for only four
of these six weeks.
In February 2001 Taylor received her performance evaluation for
the prior year. She was given a poor productivity rating because of
her health-related absences, and she received only a one-percent pay
raise while the average raise given by CP&L was approximately six
percent. Soon thereafter (in March), Taylor learned that CP&L
planned to lay off some of its employees in a reduction in force and
that the company intended to select employees for dismissal based, at
least in part, on past performance. Taylor contacted the DOL about
CP&L’s refusal to grant her FMLA leave and was told that her prior
4 TAYLOR v. PROGRESS ENERGY, INC.
medical leave qualified under the FMLA and that FMLA absences
could not be counted against her for any reason.
In an effort to save her job, Taylor asked CP&L on several occa-
sions to correct her 2000 performance evaluation to reflect that her
various absences qualified as FMLA leave. A human resources repre-
sentative denied Taylor’s requests, and the company informed her
about two weeks later (on May 17, 2001) that her employment was
being terminated. Taylor was told that she was eligible for benefits
under CP&L’s transition plan, which included seven weeks of paid
administrative leave. She was also told that she would receive addi-
tional benefits (including monetary compensation) if she signed and
returned a general release and severance agreement (the release)
within forty-five days. Taylor signed and returned the release to
CP&L on June 4. The relevant section reads as follows:
GENERAL RELEASE OF CLAIMS. IN CONSIDERATION
OF SEVERANCE PAYMENTS MADE BY THE COM-
PANY, EMPLOYEE HEREBY RELEASES CP&L [AND]
ITS PARENT . . . FROM ALL CLAIMS AND WAIVES
ALL RIGHTS EMPLOYEE MAY HAVE OR CLAIM TO
HAVE RELATING TO EMPLOYEE’S EMPLOYMENT
WITH CP&L . . . OR EMPLOYEE’S SEPARATION
THEREFROM, arising from events which have occurred up
to the date Employee executes this General Release, includ-
ing but not limited to, claims . . . for relief, including but not
limited to, front pay, back pay, compensatory damages,
punitive damages, injunctive relief, attorneys’ fees and costs
or any other remedy, arising under: (i) the Age Discrimina-
tion In Employment Act of 1967, as amended, ("ADEA");
(ii) the Employee Retirement Income Security Act of 1974,
as amended, ("ERISA"); (iii) Title VII of the Civil Rights
Act of 1964, as amended; (iv) the Energy Reorganization
Act and Atomic Energy Act, both as amended; (v) the
Americans With Disabilities Act ("ADA"); (vi) any wrong-
ful termination claim under any state or federal law; (vii)
claims for benefits under any employee benefit plan main-
tained by CP&L related to service credits or other issues;
(viii) claims under the Older Workers Benefit Protection Act
TAYLOR v. PROGRESS ENERGY, INC. 5
of 1990 ("OWBPA"); and (ix) any other federal, state or
local law.
J.A. 18. Thus, while the release does not mention FMLA claims by
name, it does include a catchall category for "other federal . . . law"
claims besides those specifically listed. Id. On July 20, 2001, CP&L
sent Taylor a check for approximately $12,000 pursuant to the terms
of the release and related documents. (Taylor did not return the
money when she later filed this action against Progress.)
After her separation from CP&L, Taylor again contacted the DOL
concerning the company’s failure to designate her health-related
absences as FMLA leave, the resulting negative performance evalua-
tion, and the company’s use of the negative evaluation in its decision
to terminate her employment. Taylor was told that she could try to
resolve her concerns directly with CP&L, so she contacted the direc-
tor of the company’s human resources department in January 2002.
The director corrected Taylor’s performance evaluation but failed to
adjust her February 2001 salary increase to reflect the improved eval-
uation and failed to address any of the other issues Taylor had raised.
Thereafter, on May 9, 2003, Taylor sued Progress in federal court
under 29 U.S.C. § 2617, alleging that the company had violated the
FMLA by (1) not fully informing her of her FMLA rights, (2)
improperly denying her requests for medical leave, (3) terminating
her employment because of her medical absences, and (4) terminating
her employment because she complained about the company’s viola-
tions of the FMLA. The complaint sought an injunction directing
Progress to rehire Taylor, compensatory damages, liquidated dam-
ages, and attorneys’ fees and costs. Progress filed a motion for sum-
mary judgment, arguing that the release was valid and provided the
company a complete defense to Taylor’s suit. In response Taylor con-
tended that 29 C.F.R. § 825.220(d) — which provides that
"[e]mployees cannot waive, nor may employers induce employees to
waive, their rights under [the] FMLA" — barred enforcement of the
release insofar as her FMLA rights are concerned. At the same time,
Taylor moved to amend her complaint to substitute CP&L as a defen-
dant and to add an allegation that CP&L’s actions had been willful.
The district court granted Progress’s motion for summary judgment,
holding that § 825.220(d) does not render the release unenforceable.
6 TAYLOR v. PROGRESS ENERGY, INC.
The district court denied as futile Taylor’s motion to amend her com-
plaint, concluding that the release would also bar suit pursuant to the
proposed amendment. This appeal followed.
II.
A.
Taylor argues that the district court erred in granting summary
judgment to Progress because 29 C.F.R. § 825.220(d) prevents the
company from enforcing the release insofar as Taylor’s FMLA rights
are concerned. The district court, relying on Faris v. Williams WPC-
I, Inc., 332 F.3d 316 (5th Cir. 2003), held that § 825.220(d) prohibits
only the prospective waiver of substantive FMLA rights. Thus,
according to the district court, the regulation does not apply to (1) the
retrospective waiver or release of FMLA claims or (2) the waiver or
release of claims that an employer has discriminated or retaliated
against an employee for the exercise of her substantive FMLA rights.
The district court’s interpretation of the regulation is a legal conclu-
sion that we review de novo. See United States v. Lofton, 233 F.3d
313, 317 n.4 (4th Cir. 2000).
We disagree with the district court’s interpretation of § 825.220(d).
The regulation’s plain language prohibits both the retrospective and
prospective waiver or release of an employee’s FMLA rights. In addi-
tion, the regulation applies to all FMLA rights, both substantive and
proscriptive (the latter preventing discrimination and retaliation).
Finally, the DOL, by recognizing that the FMLA’s enforcement
scheme is analogous to that of the Fair Labor Standards Act (FLSA),
29 U.S.C. § 201 et seq., has indicated that § 825.220(d) permits the
waiver or settlement of FMLA claims only with the prior approval of
the DOL or a court. For reasons we discuss more fully below, we con-
clude that the regulation is based on a permissible construction of the
FMLA, and it is not "arbitrary, capricious, or manifestly contrary to
the statute." Chevron, 467 U.S. at 844. As a result, we agree with
Taylor that § 825.220(d) renders the release unenforceable with
respect to her FMLA rights.
B.
As noted above, the FMLA creates both substantive and proscrip-
tive rights. See Chaffin v. John H. Carter Co., 179 F.3d 316, 319 (5th
TAYLOR v. PROGRESS ENERGY, INC. 7
Cir. 1999); Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 159-60
& nn.2-4 (1st Cir. 1998); Diaz v. Fort Wayne Foundry Corp., 131
F.3d 711, 712-13 (7th Cir. 1997). The substantive rights include an
employee’s right to take up to twelve weeks of unpaid leave in any
one-year period because of a serious health condition, 29 U.S.C.
§ 2612(a)(1)(D); the right to take such leave on an intermittent basis,
or on a reduced work schedule, when medically necessary, id.
§ 2612(b)(1); and the right to reinstatement following such leave, id.
§ 2614(a)(1). The proscriptive rights include an employee’s right not
to be discriminated or retaliated against for exercising substantive
FMLA rights or for otherwise opposing any practice made unlawful
by the Act. Id. §§ 2614(a)(2), 2615(a). Taylor’s complaint alleges the
violation of both types of FMLA rights.
C.
1.
Again, 29 C.F.R. § 825.220(d) states that "[e]mployees cannot
waive, nor may employers induce employees to waive, their rights
under [the] FMLA." This appeal turns on the proper interpretation of
the regulation, and our analysis is controlled by Chevron. We there-
fore begin with Chevron’s first step and ask "whether Congress has
directly spoken to the precise question" of whether an employee can
waive (or whether an employer can induce an employee to waive) her
rights under the FMLA. 467 U.S. at 842. "[I]f the statute is silent or
ambiguous with respect to [this] specific issue," id. at 843, then Con-
gress "has by implication delegated authority to the agency charged
with administering the statute" to promulgate regulations to deal with
the issue, United States v. Deaton, 332 F.3d 698, 708 (4th Cir. 2003).
The FMLA neither explicitly provides for nor precludes the waiver or
settlement of claims. See 29 U.S.C. § 2601 et seq. Congress therefore
has not spoken directly to this particular issue, but it has charged the
Secretary of Labor with the job of administering the FMLA, see, e.g.,
id. §§ 2616, 2617(b), and "prescrib[ing] such regulations as are neces-
sary to carry out" the Act, id. § 2654. In accordance with this statu-
tory delegation of rulemaking authority, the Secretary promulgated
comprehensive regulations, including 29 C.F.R. § 825.220(d), to
implement the FMLA. See 29 C.F.R. § 825.100 et seq. We thus con-
clude for purposes of Chevron’s step one that Congress has not spo-
8 TAYLOR v. PROGRESS ENERGY, INC.
ken directly on the issue of whether FMLA rights can be waived and
that the Act grants the Secretary (or the DOL) authority to address
this issue.
2.
a.
Before proceeding to Chevron’s step two, we must resolve the dis-
pute over what § 825.220(d) actually means. See Deaton, 332 F.3d at
709. After that, we will be in a position to decide at step two whether
the regulation is based on a permissible construction of the statute.
See Chevron, 467 U.S. at 843. As for § 825.220(d)’s meaning, we
conclude that the regulation prohibits both the prospective and retro-
spective waiver of any FMLA right (whether substantive or proscrip-
tive) unless the waiver has the prior approval of the DOL or a court.
This means that § 825.220(d) renders the release unenforceable with
respect to Taylor’s FMLA claims.
In reaching this conclusion, we first examine § 825.220(d)’s plain
language, see Deaton, 332 F.3d at 709, which unambiguously prohib-
its the waiver or release of FMLA claims. The regulation states that
"[e]mployees cannot waive, nor may employers induce employees to
waive, their rights under [the] FMLA." 29 C.F.R. § 825.220(d). Sec-
tion 825.220(d) thus regulates the employment relationship by prohib-
iting any employer-employee agreement that would adjust or
eliminate FMLA rights. Moreover, the regulation does not limit itself
to precluding only the prospective waiver of FMLA rights. The key
word is "waive," and we have found no definition of the word that
suggests it has only a prospective connotation. Black’s defines
"waive" as "[t]o abandon, renounce, or surrender (a claim, privilege,
right, etc.); to give up (a right or claim) voluntarily." Black’s Law
Dictionary 1611 (8th ed. 2004). Webster’s defines "waive" as "to give
up . . .: FORSAKE . . . to withdraw . . . to relinquish voluntarily (as
a legal right) . . . to refrain from pressing or enforcing (as a claim or
rule) . . . RELINQUISH." Webster’s Third New International Dictio-
nary 2570 (2002). Indeed, "waiver" is commonly used to describe the
post-dispute settlement or release of claims. See, e.g., Oubre v.
Entergy Operations, Inc., 522 U.S. 422, 426-27 (1998) (discussing
that the general statutory prohibition on the waiver of ADEA claims
TAYLOR v. PROGRESS ENERGY, INC. 9
established by the OWBPA applies to the post-dispute settlement or
release of such claims).
By the same token, nothing in the text of § 825.220 indicates that
the waiver prohibition protects only substantive FMLA rights and not
the proscriptive FMLA rights to be free from discrimination and retal-
iation. Section 825.220 begins with the question, "How are employees
protected who request leave or otherwise assert FMLA rights?" 29
C.F.R. § 825.220 (emphasis added). The section immediately preced-
ing the anti-waiver provision explicitly recognizes that employers
may not discriminate or retaliate against employees who take FMLA
leave. Id. § 825.220(c) (explaining, for example, that "employers can-
not use the taking of FMLA leave as a negative factor in employment
actions, such as hiring, promotions or disciplinary actions"). The reg-
ulation therefore recognizes that the FMLA protects a set of rights
beyond the substantive right to take twelve weeks of leave, including
the proscriptive rights to be free from discrimination and retaliation
for the exercise of substantive FMLA rights. Thus, because an
employee who seeks redress for an employer’s FMLA-related dis-
crimination or retaliation is "otherwise assert[ing] FMLA rights," id.
§ 825.220, she is asserting "rights under [the] FMLA" that cannot be
waived, id. § 825.220(d). This accords with the FMLA’s statutory
text, which affords protection to substantive as well as proscriptive
rights. See supra part II.B. It is therefore clear that the employee
"rights under [the] FMLA" protected by the anti-waiver provision, 29
C.F.R. § 825.220(d), must include both (1) the right to twelve weeks
of leave and to reinstatement following that leave (the substantive
rights) and (2) the right to be free from FMLA-related discrimination
and retaliation (the proscriptive rights).
Section 825.220(d)’s plain meaning is further confirmed by exam-
ining what the DOL said it intended the provision to mean at the time
the final regulations were published. The DOL specifically considered
and rejected proposed amendments that would have reflected the
interpretation urged by Progress and adopted by the district court. In
the "Summary of Major Comments" published with the final version
of the FMLA implementing regulations, the DOL notes the concerns
expressed by several large corporations and the U.S. Chamber of
Commerce regarding "the ‘no waiver of rights’ provisions." Preamble
to the Final Regulations Implementing the Family and Medical Leave
10 TAYLOR v. PROGRESS ENERGY, INC.
Act of 1993, 60 Fed. Reg. 2180, 2218 (Jan. 6, 1995). These business
interests "recommended explicit allowance of waivers and releases in
connection with [the] settlement of FMLA claims and as part of a sev-
erance package (as allowed under Title VII and ADEA claims, for
example)." Id. In response to these concerns, the DOL explained that
it had "given careful consideration to the comments . . . and . . . con-
cluded that prohibitions against employees waiving their rights and
employers inducing employees to waive their rights constitute sound
public policy under the FMLA, as is also the case under other labor
standards statutes such as the FLSA." Id. By rejecting business’s sug-
gestion that waivers and releases should be allowed in connection
with the post-dispute settlement of FMLA claims, the DOL made
clear that § 825.220(d) was never intended to have only prospective
application.
The DOL’s recognition that the FMLA’s enforcement scheme is
meant to parallel the FLSA’s also indicates that employees may waive
or release their FMLA rights with the prior approval of the DOL or
a court. See id. In accepting the parallel between the FMLA and the
FLSA, the DOL recognized that Congress intended for the FMLA to
provide employee protections similar to those provided by the FLSA.
See 29 U.S.C. §§ 216(b)-(c), 2617(a)-(b); see also infra part II.C.3. If
the DOL had adopted business’s recommendation of incorporating
Title VII and ADEA rules on waiver into the FMLA regulations, this
would have indicated acceptance of an enforcement scheme in which
FMLA claims could be settled or released without agency or court
approval. The DOL, however, rejected the Title VII/ADEA approach
by analogizing the FMLA’s enforcement scheme to that of the FLSA.
See Preamble to the Final Regulations Implementing the Family and
Medical Leave Act of 1993, 60 Fed. Reg. at 2218. The rights guaran-
teed by the FLSA cannot be waived or settled without prior DOL or
court approval. See Barrentine v. Ark.-Best Freight Sys., Inc., 450
U.S. 728, 740, 745 (1981); D.A. Schulte, Inc. v. Gangi, 328 U.S. 108,
114-16 (1946); 29 U.S.C. § 216(b)-(c). Thus, the DOL — "the agency
charged with administering" the FMLA, Deaton, 332 F.3d at 708 —
has acknowledged that Congress intended for the restrictions imposed
on the settlement of FLSA claims to be duplicated in the FMLA’s
regulatory scheme. See 29 U.S.C. §§ 216(b)-(c), 2617(a)-(b); see also
infra part II.C.3.
TAYLOR v. PROGRESS ENERGY, INC. 11
We therefore hold that, in the absence of prior approval of the DOL
or a court, 29 C.F.R. § 825.220(d) bars the waiver of both substantive
and proscriptive FMLA rights. This is the case regardless of whether
the waiver is executed before or after the employer commits the
FMLA violation.
b.
We pause to point out that the district court’s reliance on the Fifth
Circuit’s decision in Faris was misplaced. The court in that case
asserted that a "plain reading" of § 825.220(d) led to the conclusion
that the regulation prohibits the "prospective waiver of [substantive]
rights, not the post-dispute settlement of claims" alleging retaliation.
Faris, 332 F.3d at 321. And while the court in Faris did not find it
"necessarily dispositive that post-dispute waiver is allowed" under
Title VII and the ADEA, the waiver doctrines from those statutes
were considered "highly persuasive" because the court could think of
"no good reason" to treat FMLA waivers any differently. Id. at 321-
22. As a result, the Faris court (like the district court here) concluded
that § 825.220(d)’s prohibition does not apply to (1) the retrospective
waiver or release of FMLA claims or (2) any waiver or release of a
claim that an employer has discriminated or retaliated against an
employee for exercising her substantive FMLA rights. Again, we con-
clude that § 825.220(d) plainly prohibits the waiver or release of
FMLA claims (unless there is DOL or court approval), and we there-
fore disagree with the Fifth Circuit’s analysis. The definitions and
common usage of the verb "waive," the plain meaning and context of
§ 825.220(d), and the DOL’s own understanding of the regulation at
the time of its adoption all point to the same conclusion: that
§ 825.220(d) does not make a distinction between (1) prospective and
retrospective waivers or (2) the substantive and proscriptive rights
guaranteed to every employee covered by the FMLA. From our dis-
cussion above, it is likewise clear that the DOL intended, by noting
the parallels between the FMLA and the FLSA, to treat waivers under
the FMLA differently from waivers under Title VII and the ADEA.
In taking this course, the DOL was simply following the statutory text
and congressional intent. See infra part II.C.3.
c.
The district court, to support its holding that § 825.220(d) does not
bar the release of most FMLA claims, suggested that a contrary ruling
12 TAYLOR v. PROGRESS ENERGY, INC.
would cast doubt on our decision in O’Neil v. Hilton Head Hospital,
115 F.3d 272 (4th Cir. 1997). In O’Neil we held that a general arbitra-
tion clause in an employment agreement applied to claims asserted
under the FMLA. Id. at 273, 276. However, agreeing to submit a
claim to arbitration is entirely different from agreeing to waive it. An
agreement to arbitrate preserves the claim; the agreement simply
shifts the forum for resolving the claim from a court to an arbitration
setting. O’Neil, in short, has no bearing on the proper interpretation
of § 825.220(d).
d.
In addition to defending the district court’s reasoning, Progress
argues that summary judgment is appropriate because Taylor ratified
the release of her FMLA claims by retaining the consideration she
received in exchange for executing the general release. We disagree.
Because FMLA claims are not waivable by agreement, neither are
they waivable by ratification. See Bluitt v. Eval Co. of Am., 3 F. Supp.
2d 761, 764 n.1 (S.D. Tex. 1998); see also Oubre, 522 U.S. at 426-
27. Section 825.220(d) provides that "[e]mployees cannot waive . . .
their rights under [the] FMLA," and it makes no exception for waiver
by ratification. We take no position on the effect our decision today
might have on the continuing validity of the release with respect to
non-FMLA claims, but we note that the release contains a severability
clause. Moreover, in future proceedings the district court "may need
to inquire whether the employer has claims for restitution, recoup-
ment, or setoff against the employee." Oubre, 522 U.S. at 428. These
questions, which "may be complex [if] a release is effective as to
some claims but not as to" others, are not before us today. Id.
3.
We finally reach the question of whether § 825.220(d) satisfies
Chevron’s step two; here we ask whether the regulation is "based on
a permissible construction" of the FMLA. 467 U.S. at 843. Congress
directed the Secretary of Labor to issue regulations "necessary to
carry out" the Act, 29 U.S.C. § 2654, and "[t]he Secretary’s judgment
that a particular regulation fits within this statutory constraint must be
given considerable weight," Ragsdale v. Wolverine World Wide, Inc.,
535 U.S. 81, 86 (2002). Nevertheless, a regulation cannot be upheld
TAYLOR v. PROGRESS ENERGY, INC. 13
if it is "arbitrary, capricious, or manifestly contrary to the statute."
Chevron, 467 U.S. at 844.
Progress contends that if we conclude (as we just have) that the
regulation bars enforcement of the release, then the regulation itself
must be deemed unenforceable. First, Progress argues that a regula-
tion barring the waiver or release of claims is inconsistent with the
general public policy favoring settlement. Second, Progress argues
that congressional silence on the issue of waiver demonstrates an
intent not to regulate the waiver or release of FMLA claims. Third,
Progress argues that a regulation entirely prohibiting the waiver or
release of claims would be arbitrary and therefore invalid under Chev-
ron.
Progress’s first argument, pressing general public policy concerns,
is misplaced because our inquiry under Chevron’s step two does not
focus on whether the regulatory prohibition of FMLA waivers is
advisable as a policy matter. Given the DOL’s interpretive regulation,
we cannot "simply impose [our] own construction on the statute, as
would be necessary in the absence of an administrative interpreta-
tion." Chevron, 467 U.S. at 843 (footnote omitted). Rather, we must
decide whether 29 C.F.R. § 825.220(d) is "based on a permissible
construction" of the FMLA or whether the regulation is instead "man-
ifestly contrary to the statute." Chevron, 467 U.S. at 843-44. We
agree with Progress that there is a general public policy favoring the
post-dispute settlement of claims. However, because the FMLA’s lan-
guage, structure, and the congressional intent behind its enactment are
clear (as we demonstrate below), the general policy favoring settle-
ment has no place in our Chevron step two analysis of whether the
DOL’s implementing regulations are based on a permissible construc-
tion of the statute. See Cent. Bank v. First Interstate Bank, 511 U.S.
164, 188 (1994).
We also reject Progress’s second argument that Congress’s silence
on the question of waiver should be interpreted as indicating an intent
to allow the waiver or release of FMLA claims. We do so because
"inferences from congressional silence, in the context of administra-
tive law, are often treacherous." EEOC v. Seafarers Int’l Union, 394
F.3d 197, 202 (4th Cir. 2005) (internal quotation marks omitted); see
14 TAYLOR v. PROGRESS ENERGY, INC.
also Brown v. Gardner, 513 U.S. 115, 121 (1994) (casting consider-
able doubt on using congressional silence to interpret a statute).
As for Progress’s third argument — that a complete prohibition on
the waiver or release of FMLA claims would be arbitrary — we have
already explained that § 825.220(d) allows an employee to waive
FMLA rights with the prior approval of the DOL or a court. See supra
part II.C.2.a. In promulgating the implementing regulations, the DOL
explicitly analogized the FMLA to "other labor standards statutes
such as the FLSA." Preamble to the Final Regulations Implementing
the Family and Medical Leave Act of 1993, 60 Fed. Reg. at 2218. The
agency charged with administering the statute thus concluded that the
FMLA was (and was intended to be) more similar to the FLSA than
to employment discrimination statutes such as Title VII, and the
agency (the DOL) therefore adopted a standard governing FMLA
waivers that tracks the standard governing FLSA waivers. The DOL’s
approach is consistent with congressional intent and the statutory text
because Congress indicated that the FMLA was to be implemented in
the same way as the FLSA. See, e.g., S. Rep. No. 103-3, at 35 (1993),
reprinted in 1993 U.S.C.C.A.N. 3, 37 (explaining that the FMLA’s
"enforcement scheme is modeled on the enforcement scheme of the
FLSA" and that "[t]he relief provided in FMLA also parallels the pro-
visions of the FLSA"); see also Arban v. W. Publ’g Corp., 345 F.3d
390, 407-08 (6th Cir. 2003) (explaining the strong link between the
remedial provisions of the FMLA and the FLSA); Diaz, 131 F.3d at
712-13 (distinguishing the FMLA from employment discrimination
statutes and likening it to other statutes, such as the FLSA, which "set
substantive floors").
Again, the Supreme Court has consistently held that the rights
guaranteed by the FLSA cannot be waived by private agreement
between employer and employee. See Barrentine, 450 U.S. at 740,
745; Gangi, 328 U.S. at 114-16. Claims for FLSA violations can, of
course, be settled when the settlement is supervised by the DOL or
a court. The DOL is statutorily authorized to supervise the settlement
of claims for employer violations of §§ 206 and 207 of the FLSA
(minimum wage and maximum hour laws), 29 U.S.C. § 216(c), and
the FMLA instructs the DOL to "receive, investigate, and attempt to
resolve complaints of [FMLA] violations . . . in the same manner that
the [DOL] receives, investigates, and attempts to resolve complaints
TAYLOR v. PROGRESS ENERGY, INC. 15
of violations of sections 206 and 207" of the FLSA, id. § 2617(b)(1)
(emphasis added). The DOL "attempts to resolve complaints of viola-
tions of [FLSA] sections 206 and 207," id., when it "supervise[s] the
payment of . . . unpaid minimum wages or . . . unpaid overtime com-
pensation" under FLSA §§ 206 or 207, a payment which, if accepted
by an employee, "constitute[s] a waiver" of the employee’s FLSA
claim, id. § 216(c). Likewise, the DOL "attempt[s] to resolve com-
plaints of [FMLA] violations . . . in the same manner that [it] . . .
attempts to resolve complaints of [FLSA] violations," id.
§ 2617(b)(1), when it supervises the settlement of an employee’s
FMLA claim. In other words, the DOL has statutory authority to
supervise and approve the settlement and waiver (or release) of
FMLA claims. Judicial authority to supervise the settlement of both
FLSA and FMLA claims is implicit in both labor standards statutes
by virtue of the statutory grant of "Federal or State court" jurisdiction
to hear and determine such claims. Id. §§ 216(b) (FLSA), 2617(a)(2)
(FMLA). Thus, Progress’s third argument that 29 C.F.R. § 825.220(d)
is arbitrary fails because the regulation must be construed to allow the
waiver or release of FMLA claims with prior DOL or court approval.
Moreover, the regulation is entirely consistent with the statute. The
FMLA was enacted to set a minimum labor standard for family and
medical leave, see 29 U.S.C. § 2601, and was analogized to child
labor and occupational safety laws as well as the FLSA, see H.R. Rep.
No. 103-8, pt. 1, at 21-22 (1993); S. Rep. No. 103-3, at 4-5, reprinted
in 1993 U.S.C.C.A.N. 3, 6-7. FMLA’s minimum standard was justi-
fied by a concern that middle- and low-income workers should not be
forced to choose between keeping their jobs and quitting to deal with
pressing medical or family care needs. See 29 U.S.C. § 2601(a)(3); S.
Rep. No. 103-3, at 7-12, reprinted in 1993 U.S.C.C.A.N. 3, 10-14.
Without a minimum leave standard, the "minority of employers who
act irresponsibly" could more easily exploit employees at the times
when they are most vulnerable. S. Rep. No. 103-3, at 5, reprinted in
1993 U.S.C.C.A.N. 3, 7. Moreover, a uniform family and medical
leave standard was regarded as necessary because it would "help all
businesses maintain a minimum floor of protection for their employ-
ees without jeopardizing or decreasing their competitiveness." Id. at
18, reprinted in 1993 U.S.C.C.A.N. at 20; see also id. at 5, reprinted
in 1993 U.S.C.C.A.N. at 7 ("A central reason that labor standards are
necessary is to relieve the competitive pressure placed on responsible
16 TAYLOR v. PROGRESS ENERGY, INC.
employers by employers who act irresponsibly. Federal labor stan-
dards take broad societal concerns out of the competitive process so
that conscientious employers are not forced to compete with unscru-
pulous employers."). Section 825.220(d)’s prohibition against the
waiver of rights is based on this reasoning. Without the regulation’s
non-waiver provision, the unscrupulous employer could systemati-
cally violate the FMLA and gain a competitive advantage by buying
out FMLA claims at a discounted rate.
In sum, we conclude that § 825.220(d) is "based on a permissible
construction" of the FMLA, Chevron, 467 U.S. at 843, especially
when we consider the Act "as a symmetrical and coherent regulatory
scheme" to guarantee family and medical leave to all covered
employees, Ragsdale, 535 U.S. at 86 (internal quotation marks omit-
ted). The regulation is consistent with the FMLA and must be upheld
because it is not "arbitrary, capricious, or manifestly contrary to the
statute." Chevron, 467 U.S. at 844.
III.
Because the district court did not believe that § 825.220(d) barred
the release of Taylor’s FMLA claims, the court denied as futile her
motion to amend her complaint to substitute CP&L as a defendant
and to add an allegation that CP&L’s actions were willful. In light of
our holding that § 825.220(d) bars enforcement of the release with
respect to the waiver of Taylor’s FMLA rights, we also hold that the
district court’s order denying Taylor’s motion to amend must be
vacated. The motion should be reconsidered on remand.
IV.
We hold that, without prior DOL or court approval, 29 C.F.R.
§ 825.220(d) bars the prospective and retrospective waiver or release
of the FMLA’s substantive and proscriptive rights. We therefore
reverse the district court’s order granting summary judgment to Prog-
ress. We also vacate the district court’s order denying Taylor’s
motion to amend her complaint. The case is remanded for further pro-
ceedings.
TAYLOR v. PROGRESS ENERGY, INC. 17
REVERSED IN PART,
VACATED IN PART,
AND REMANDED