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Enforcement of FLSA’s Breastfeeding Provision Limited

By Allen Smith  8/2/2012
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The Fair Labor Standards Act (FLSA) does not allow a private lawsuit for enforcing the law’s provision to provide a suitable place and times for expressing breast milk, a district court ruled July 19, 2012. But the court allowed a constructive discharge and retaliation claim to proceed to trial for an employee who was dissatisfied with her employer’s compliance with the requirement.

Stepheni Salz, a convenience store employee, became uncomfortable expressing milk at work when she noticed an operating video camera in the store’s office, a space her supervisor had assured her would be a secure, private place.

She voiced her discomfort with the camera’s presence, but Casey’s Marketing Co. did not promptly respond, according to the U.S. District Court for the Northern District of Iowa. When the company finally did respond, it told Salz to place a plastic bag over the camera, rather than disabling it, and refused any other accommodation.

After this exchange, Salz found she was unable to relax while expressing milk at work and experienced a noticeable reduction in her milk production, placing her infant’s nutritional needs in jeopardy.

Soon after her complaint, Salz was reprimanded for allegedly failing to fill an ice cream machine, failing to put hot dogs on a grill and leaving dirty dishes.

FLSA Provision

She quit and sued, claiming a direct violation of the FLSA’s express breast milk provision, which the Patient Protection and Affordable Care Act added to the federal wage and hour statute in 2010.

Under this section of the law, an employer must provide:

A reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time the employee needs to express milk.

A place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public.

An employer shall not be required to compensate an employee receiving reasonable break time from work for time spent expressing milk.

The district court relied on a U.S. Department of Labor (DOL) Federal Register notice to rule that those seeking enforcement of this section for a direct violation must file claims with the DOL, which then may seek injunctive relief in federal district court.

Constructive Discharge and Retaliation Claim

While Salz failed to persuade the court that she had a cause of action for a direct violation of the breast milk provision, the court refused to dismiss her claim of constructive discharge and retaliation in relation to her complaint about the company’s express breast feeding policy.

Constructive discharge, the court explained, occurs when an employer deliberately renders an employee’s working conditions intolerable and thereby forces the employee to quit.

The court noted that the FLSA provides that it is unlawful for any person to discharge or discriminate against an employee because he or she has filed any FLSA complaint. It rejected the company’s argument that the enforcement provisions for the express milk section would be undermined if Salz could sue under the enforcement provisions of the law’s unlawful discharge or retaliation section. 

The court added that the law provides for a separate cause of action with separate remedies for unlawful discharge or retaliation in violation of the FLSA (Salz v. Casey’s Marketing Co., No. 11-CV-3055 (N.D. Iowa 2012)).

Allen Smith, J.D., is manager, workplace law content, for SHRM.

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