Can my employer make me waive FMLA protection in Dallas and Fort Worth, Texas?
No, an employer cannot require you to sign a waiver of protection under FMLA for future leave or protection from discrimination on the basis of prior use of FMLA. Department of Labor regulations on FMLA prohibit employers from requiring employees to waive FMLA rights and hold any waiver invalid. Like minimum wage and overtime protections, employers cannot require employees to give up legal protections.
All that said, keep in mind that this prohibition on FMLA waivers is for future protections under the law. That means an employer cannot require you to waive protections for future leave or from future adverse action for taking FMLA leave. However, employers can offer certain waivers of FMLA rights and courts will uphold them.
Courts upholding FMLA waivers
Some courts have upheld waivers of future FMLA leave rights when accompanied by some other benefit for the employee and the employee or the employee’s agent bargained for the exchange. This is most likely to occur in a collective bargaining agreement in a union setting. Employers should not consider this an open-ended opportunity to offer some slight benefit in exchange for waiving FMLA protections. There is no widespread agreement about this particular waiver; but courts are likely to scrutinize the waiver to determine whether the bargain was fair. An employee handed a waiver with a pre-determined offset benefit is less likely to survive a challenge than a bargain struck with union negotiators in a collective bargaining agreement.
Additionally, waivers of claims under FMLA for prior violations are withheld in Texas by the U.S. Court of Appeals for the Fifth Circuit but other federal circuit courts disagree. In Texas, at very least, courts will uphold these waivers. These waivers typically appear in settlement agreements in pre-litigation settlement negotiations or in severance agreements. Employees in Texas need to be particularly careful about agreeing to waivers of claims, especially in severance agreements. Employees may sign away a valuable claim for a fraction of what it would be worth to the employee. (As well as the financial loss the employee may have experienced as a result of the FMLA violation.)
How employees can waive FMLA protections in Dallas and Fort Worth, Texas
Employees can waive FMLA for particular leave periods by expressing a desire to not have the time counted against the employee’s allotment of FMLA leave. For example, an employee approved for intermittent FMLA leave for rest and therapy of a back injury could decide to stay home for a day due to pain but ask the employer to not count the day under FMLA and just take the day as a sick day. In this case the leave would ordinarily count as FMLA leave but the employee waived protection.
Employees sometimes do this to stretch out the amount of leave time they can take from the employer. By using the employer’s paid sick leave but not FMLA saves that day of FMLA leave down the road. It allows the employee to more days off as a combination of paid sick leave policy plus FMLA.
That is a double-edged sword. On one hand, the employee gains an extra sick day; but on the other hand the employer could fire the employee for missing work that day. FMLA would not protect the employee although the employee could have received protection. (The employer may owe unemployment for firing the employee for taking leave under an established paid leave policy but that is less of a problem for the employer than FMLA.) It creates a messy situation where any retaliation for taking leave must be sorted out for its application to FMLA or the non-FMLA sick day. Not a great place for either employer or employee if things go south. That is why many employers refuse to allow an employee to take leave without counting it against FMLA time. When FMLA issues arise in Fort Worth or Dallas talk to an employment attorney.