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. 

Rehearing granted, June 14, 2006
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 Medical 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 proscriptive right not to be discriminated or retaliated against for exercising 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 treatment. Immediately after her first health-related absence in April or

2 TAYLOR v. PROGRESS ENERGY, INC.
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 representative told Taylor that she was not eligible for FMLA leave

because she had not been absent from work for more than five consecutive 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 representative 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 departmental representative answered that the missed time did not qualify

because Taylor had not been out of work for more than five consecutive 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

TAYLOR v. PROGRESS ENERGY, INC. 3
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 occasions to correct her 2000 performance evaluation to reflect that her

various absences qualified as FMLA leave. A human resources representative 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 additional 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 COMPANY, 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, including 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 Discrimination 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 wrongful termination claim under any state or federal law; (vii)

claims for benefits under any employee benefit plan maintained by CP&L related to service credits or other issues;

(viii) claims under the Older Workers Benefit Protection Act

4 TAYLOR v. PROGRESS ENERGY, INC.
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 evaluation, 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 director 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 evaluation 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 violations of the FMLA. The complaint sought an injunction directing

Progress to rehire Taylor, compensatory damages, liquidated damages, and attorneys’ fees and costs. Progress filed a motion for summary judgment, arguing that the release was valid and provided the

company a complete defense to Taylor’s suit. In response Taylor contended 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 defendant 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.

TAYLOR v. PROGRESS ENERGY, INC. 5
The district court denied as futile Taylor’s motion to amend her complaint, 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 WPCI, 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 conclusion 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 addition, 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 conclude 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 proscriptive rights. See Chaffin v. John H. Carter Co., 179 F.3d 316, 319 (5th

6 TAYLOR v. PROGRESS ENERGY, INC.
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 therefore 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 Congress "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 necessary to carry out" the Act, id. § 2654. In accordance with this statutory 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 conclude for purposes of Chevron’s step one that Congress has not spoTAYLOR v. PROGRESS ENERGY, INC. 7
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 dispute 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 retrospective waiver of any FMLA right (whether substantive or proscriptive) 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 prohibits 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). Section 825.220(d) thus regulates the employment relationship by prohibiting 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 Dictionary 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

8 TAYLOR v. PROGRESS ENERGY, INC.
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 retaliation. 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 preceding 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 cannot use the taking of FMLA leave as a negative factor in employment

actions, such as hiring, promotions or disciplinary actions"). The regulation 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 discrimination 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 examining 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

TAYLOR v. PROGRESS ENERGY, INC. 9
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 severance 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 . . . concluded 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 suggestion 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 guaranteed 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. 

10 TAYLOR v. PROGRESS ENERGY, INC.
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 conclude that § 825.220(d) plainly prohibits the waiver or release of

FMLA claims (unless there is DOL or court approval), and we therefore 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 discussion 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

TAYLOR v. PROGRESS ENERGY, INC. 11
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 arbitration 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, recoupment, 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

12 TAYLOR v. PROGRESS ENERGY, INC.
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 regulation 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 Chevron. 

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 interpretation." 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 "manifestly 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 language, structure, and the congressional intent behind its enactment are

clear (as we demonstrate below), the general policy favoring settlement has no place in our Chevron step two analysis of whether the

DOL’s implementing regulations are based on a permissible construction 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 administrative law, are often treacherous." EEOC v. Seafarers Int’l Union, 394

F.3d 197, 202 (4th Cir. 2005) (internal quotation marks omitted); see

TAYLOR v. PROGRESS ENERGY, INC. 13
also Brown v. Gardner, 513 U.S. 115, 121 (1994) (casting considerable 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 provisions 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

14 TAYLOR v. PROGRESS ENERGY, INC.
of violations of sections 206 and 207" of the FLSA, id. § 2617(b)(1)

(emphasis added). The DOL "attempts to resolve complaints of violations of [FLSA] sections 206 and 207," id., when it "supervise[s] the

payment of . . . unpaid minimum wages or . . . unpaid overtime compensation" 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 complaints 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 justified 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 employees 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

TAYLOR v. PROGRESS ENERGY, INC. 15
employers by employers who act irresponsibly. Federal labor standards take broad societal concerns out of the competitive process so

that conscientious employers are not forced to compete with unscrupulous 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 systematically 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 omitted). 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 Progress. We also vacate the district court’s order denying Taylor’s

motion to amend her complaint. The case is remanded for further proceedings.

16 TAYLOR v. PROGRESS ENERGY, INC.
REVERSED IN PART,

VACATED IN PART,

AND REMANDED

TAYLOR v. PROGRESS ENERGY, INC. 17