Wagner Header

The Wagner Law Group Description 

The Wagner Law Group, A Professional Corporation, is a nationally recognized ERISA & employee benefits, estate planning, employment, labor & human resources practice. 


Established in 1996, The Wagner Law Group has 23 attorneys engaged exclusively in employee benefits, estate planning and employment law. Seven of our attorneys are AV rated by Martindale-Hubbell as having very high to preeminent legal abilities and ethical standards. The firm is among the largest ERISA boutiques in the country. Our practice is national in scope, with clients in more than 40 states and several foreign countries.






Contact Info

The Wagner Law Group


  Integrity | Excellence


Massachusetts Office 

Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110

Florida Office 

Tel: (561) 293-3590
Fax: (561) 293-3591
7108 Fairway Drive
Suite 125
Palm Beach Gardens, FL 33418


San Francisco Office

Tel: (415) 625-0002

Fax: (415) 358-8300

315 Montgomery Street

Suite 904

San Francisco, CA 94104


Illinois Office

Tel: (847) 250-1365

Fax: (847) 250-1367

414 West Deerpath Road
Lake Forest, IL  60045  







April 24, 2014


 State and Federal Law Alert




Employees Can Waive FMLA Rights for Past Violations




The Eleventh Circuit Court of Appeals has ruled that an employee can waive her claim against an employer for alleged violations of the Family Medical Leave Act (the "FMLA"). In Paylor v. Hartford Life, the Eleventh Circuit held that a Department of Labor regulation, which prohibits the waiver of prospective rights under the FMLA, only applies to waivers for future FMLA violations.


Background. In Paylor, the plaintiff, while working for the employer, requested and received FMLA leave on two separate occasions. The plaintiff proceeded to request additional FMLA leave. Shortly after this request, the employer issued a performance warning and requested that she either sign a severance agreement that required her to waive her FMLA claims or agree to a performance improvement plan that required her to meet certain performance benchmarks or face termination.


The plaintiff opted for the severance agreement. Shortly after signing the severance agreement, she sued the employer alleging that:

  • The employer interfered with her FMLA rights and retaliated against her for exercising these rights.
  • The severance agreement did not foreclose her FMLA claim because it was based on her outstanding request for FMLA leave, and the DOL regulation prevents the waiver of prospective FMLA rights.  

Eleventh Circuit's Decision. The Eleventh Circuit decided in favor of the employer and affirmed the lower court's dismissal of the plaintiff's lawsuit, holding that the plaintiff waived her FMLA claims when she signed the severance agreement. The Eleventh Circuit concluded that the DOL regulation did not affect her waiver because the alleged FMLA violations occurred before she signed the severance agreement waiver.


The Eleventh Circuit clarified that the DOL regulation's protection of prospective rights refers only to future violations, finding that:

  • The DOL added the word "prospective" to the regulation in 2009 to resolve a split among the U.S. Courts of Appeal, and it is well-established law that employees can release FMLA claims for past violations.
  • The plain language of the DOL regulation suggests that prospective rights are limited to future violations by the employer.
  • The plaintiff's position that prospective rights include all unexercised FMLA rights is too broad because that definition would make it unlawful for employers to request a waiver from any eligible employee with an outstanding request for FMLA leave.

Impact of Paylor on Employers. In the wake of the Eleventh Circuit's decision in Paylor, employers now have more certainty regarding the enforceability of FMLA releases, including those contained in severance agreements.




This Newsletter is protected by copyright. Material appearing herein may be reproduced with appropriate credit.


Pursuant to Internal Revenue Service Circular 230, we hereby inform you that any advice set forth herein with respect to US federal tax issues is not intended or written by The Wagner Law Group to be used and cannot be used, by you or any taxpayer, for the purpose of avoiding penalties that may be imposed on you or any other person under the Internal Revenue Code.


This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.