Posts Tagged ‘Employer’

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DOL Sues Employer for Unpaid Pre- and Post-Shift Work

by HDlawblog Posted: Monday, 7/11/2016

The Department of Labor (DOL) filed a lawsuit against Five Star Automatic Fire Protection in the Western District of Texas on July 7th, alleging the company failed to properly compensate its workers for labor they performed prior to and following their standard shifts. The DOL is seeking $321,000 in back pay and damages—a sharp reminder that the Fair Labor Standards Act (FLSA) requires employers to fully compensate their employees for all the work they do, including work done before and after they are on the job site.

The DOL’s attempted application of the rule is not new or even surprising, but it should grab employers’ attention, because it is a prime example of the type of wage and hour practices that put an employer on the wrong end of a costly lawsuit.

According to the DOL complaint, Five Star required its workers to begin their day at its office, where they loaded materials into a company vehicle before driving to the job site. After they were done at the jobsite for the day, Five Star required them to return the company vehicle to the office. The DOL has filed a complaint because it alleges Five Star did not compensate employees for this pre-shift and post-shift work.

FLSA requires employers to pay employees for all hours worked. Generally, any activity performed for an employer, whether it is done on the job site, at the office, or even off work premises, counts as time worked if the employer knows or has reason to believe work is being done. Activities such as preparing materials integral for work—the kind of pre-shift and post-shift work performed in this case—must be compensated as work. Even if Five Star did not intend to purposefully shortchange its workers, that fact alone will not shield it from liability. Remember: An employer must pay workers for all hours the employer knew or “should have known” the employee worked, and for hours that exceed 40 in a workweek, the employer must pay time-and –a-half. The unpaid pre-shift and post-shift hours, if properly counted, most likely cause the employees’ hours worked to exceed 40, and therefore the failure to pay for both the hours and overtime hours worked may be deemed a significant violation.

Employers can avoid placing themselves in Five Star’s position by ensuring that all hours are recorded accurately and that employees are not performing work outside of the time they are clocked in. Contractors can give their employees an option of riding to the jobsite in a company vehicle but employees cannot be allowed to perform any work before they arrive at the jobsite—or they will be in the same position as Fivestar is in this case.  If you have any questions about travel policies or any other FLSA issues, please contact us at Harmon & Davies, P.C.

This article is intended to provide general information, not a specific legal opinion or advice. Any particular questions should be directed to your legal counsel. If you do not have legal counsel, please feel free to contact Harmon & Davies, P.C.

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Posted in FLSA, Labor & Employment, Litigation | No Comments »

Joint Employer Status and the NLRB

by HDlawblog Posted: Tuesday, 8/19/2014

Late last month, NLRB General Counsel Richard Griffin announced that he has authorized issuance of Unfair Labor Practice Complaints based on 43 of the 181 pending charges against McDonald’s, USA, LLC and various of its franchises, in which the Board will allege that the company and its franchisees are joint employers. This decision goes against decades of decisions and case law and could potentially be devastating to the franchise system as we know it. If upheld, the determination would bring McDonald’s (with its deep pockets) to the bargaining table in connection with a wide variety of employment related claims. The financial strength of McDonald’s would make forming a union more attractive to workers. McDonald’s, and other franchise chains, may also have to step up its policing of franchises and spend more time and money monitoring stores to prevent labor infractions.

This announcement comes as the NLRB, in an unrelated case involving Browning-Ferris Industries of California, is reviewing its standard for determining when businesses should be considered joint employers. Traditionally, to establish joint employer status, there must be a right to control. Both legally separate employers must have direction or ability to co-determine the hiring, termination, wages, hours or any other essential terms and conditions of employment. In the Browning-Ferris Industries case, the Teamsters sought to represent a bargaining unit of employees who it claimed were jointly employed by BFI and its staffing agency. The Regional Director, however, determined that the company and the staffing agency were not joint employers with respect to workers at one of the company owned recycling facilities because BFI did not exert sufficient control over the agency workers. The Teamsters sought review of this decision, which was granted by the NLRB, finding this as their opportunity to expand the test for establishing joint employer status. In a very unusual move, General Counsel Griffin filed an amicus brief urging the Board to adopt a new broader standard.

What this means for all businesses: This potential new standard for determining joint employer status may leave more employers liable for alleged labor law violations and potentially force more companies to come to the bargaining table. This possible new standard will affect every business that subcontracts or outsources any function. It seems that it may become futile to try to avoid joint employer status and, instead, companies need to investigate business practices to make sure that any other company they are in business with is doing everything as close to 100% correct as possible. In the alternative, companies may need to explore the option of eliminating the use of certain contractors completely.  At a minimum, the company should be sure to include a strong indemnification provision to hold the individual contractors or suppliers responsible for any liability suffered as a result of their noncompliance with legal responsibilities. Of course any such indemnification will be meaningful only if the other party has the financial resources to back it up.

This article is authored by attorney Lori L. Buntman and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Posted in NLRB, NLRB, Union | No Comments »

Supervisors must have Authority to Hire and Fire

by HDlawblog Posted: Thursday, 8/8/2013

On June 24, 2013, the U.S. Supreme Court held in Vance v. Ball State University that when analyzing harassment claims, to determine whether the employer is vicariously liable, a “supervisor” is an individual who has the authority to take tangible employment actions against others.  Individuals who do not has this authority should be treated as “co-workers.”

As background, in the 1998 Faragher and Ellerth decisions regarding employer liability for sexual harassment, the Supreme Court held that an employer can be held liable for harassment by coworkers only if the employer did not take sufficient steps to prevent and correct harassment, but the employer is strictly liable for the harassment by a supervisor if it resulted in a tangible employment action (such as discharge or demotion).  In Vance, the Supreme Court clarified that in order the employer to be strictly liable, a supervisor must be a person who has the authority to hire, fire, demote, promote, transfer, or discipline, or otherwise take tangible adverse employment actions against employees.

The Vance opinion will allow employers to demonstrate in more cases that they have taken appropriate measures to prevent and correct harassment because fewer individuals will meet the definition of supervisor.  In addition, because whether an individual is deemed a supervisor is more clear, employees (probably on the advice of counsel) may be more likely to try to resolve matters internally.  However, employers should be aware that even if higher-level, non-supervisory employees such as shift leads and foremen do not have the authority to take tangible employment action, they may still be held to a higher standard than regular co-workers, so employers should be sure they are properly trained on harassment.

In addition, given the importance of the term supervisor under this decision, employers should make sure their job descriptions accurately reflect the authority given to each position.  Employers should also review policies regarding decision-making procedures and complaint procedures to ensure that the authority given to various positions is accurate and consistent with the Company’s intentions.

This article is authored by attorney Laura Bailey Gallagher and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Posted in Anti-Harassment Policy, Labor & Employment | No Comments »

Don’t Make Fun of the Guy Wearing Pastel Shirts

by HDlawblog Posted: Friday, 8/2/2013

I can’t tell you how many times I’ve heard other guys give a male wearing a pastel shirt a hard time about his “feminine” color choice, but employers might be more apt to snuff out such joking after a recent decision by the Eastern District of California where the court held that, among other things, that calling a male worker’s pastel shirts “girly” was evidence of sex stereotyping.  Although this decision was rendered in California where the notoriously liberal Ninth Circuit has already recognized harassment and discrimination rooted in sex stereotyping as an actionable Title VII claim, the court’s message should cause all employers to worry about whether they are doing enough to create a work environment free of sex-based harassment. 

Indeed, in the matter of Felix v. Cal. Dep’t of Developmental Servs., two special investigators with California’s Department of Developmental Services alleged that they were subjected to years of coworkers’ derogatory name calling and pranks.  The plaintiffs sued under Title VII of the 1964 Civil Rights Act and California’s Fair Employment and Housing Act.  The alleged harassment consisted of, among other things: (1) coworkers joking that one of the plaintiffs dressed in “girly” clothes because he wore pink, lavender, and soft blue colored shirts; (2) coworkers making references to one of the plaintiffs and a male coworker having nipple rings and piercings on their penises that were chained together; and (3)   coworkers sending one of the plaintiffs yellow balloons with a card claiming that he had a secret admirer, which was intended to imply that he was a homosexual because an openly gay male co-worker’s favorite color was yellow.    

The court found that calling a male employee’s clothes “girly” and implying that he had a sexual relationship with male co-workers demonstrated plausible sex-based harassment under Title VII and the FEHA.  This decision should cause employers to question whether they are doing enough to eliminate potential harassment claims from the workplace.  The attorneys at Harmon & Davies are here to assist employers with such matters. 

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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Posted in Sexual Harassment | No Comments »

Merely Undergoing IVF Treatment Does Not Insulate Employee from Termination

by HDlawblog Posted: Friday, 7/5/2013

A New York waitress who was fired shortly after telling her managers that she started in-vitro fertilization did not establish sex discrimination claims because she failed to show that the stated reason for her discharge, which the company claimed was her poor performance, was pretextual.

In the case of Govori v. Goat Fifty LLC, the Second Circuit rejected the waitress’s contention that the close timing between her revelation that she was undergoing IVF treatment and her discharge was enough to rebut the restaurant’s legitimate nondiscriminatory reason for firing her.  The restaurant claimed that the waitress had a history of poor performance that culminated when she allegedly yelled at a customer on her last day of work.  Additionally, the waitress’s managers were already well aware that the waitress wished to become pregnant and was contemplating IVF before she announced that she had started IVF treatment.  In fact, her managers allegedly supported the waitress in her desire to become pregnant.  Thus, the court concluded that the waitress’s announcement that she was starting treatment was at most “her commencement of but one more step toward her previously announced but still uncertain goal of conceiving a child.”

Although the waitress alleged that her manager told her that she had chosen a different “path” during the telephone call in which the manager terminated the waitress, and that the different “path” referred to the “mommy track” or “mommy path,” the court found that the use of the word “path” could not plausibly be construed as a reference to the “mommy track”.  Rather the court reasoned that the comment about choosing another path was the sort of comment a friend might plausibly use as an attempt to soften the blow of firing an employee with whom she was close.

Because the court found that the waitress failed to refute that her poor performance was the cause of her termination, the court declined to address whether the Pregnancy Discrimination Act (“PDA”) covers employees who allegedly are fired for undergoing IVF treatment.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Posted in Labor & Employment, Pregnancy Discrimination, Sex discrimination | No Comments »

Employer Succeeds in Efforts to Have OSHA Citation Vacated

by HDlawblog Posted: Monday, 2/11/2013

Sometimes it pays to contest an OSHA citation.  Take for example, the case of Sec’y of Labor v. K.E.R. Enters. Inc., where the Occupational Safety and Health Review Commission (“OSHRC”) recently vacated an OSHA citation for a serious violation.  In the K.E.R. Enterprises case, the employer was pressure-testing a water pipe as part of a waterline installation project.  The project foreman noticed a small leak near what is referred to as a restraining gland and instructed two workers to tighten the T-bolts on the restraining gland.  During this process, the pipe exploded, sending fragments flying.  Both of the foreman’s legs were broken and three other workers were injured as a result.

OSHA cited the employer with a serious violation of the Occupational Safety and Health Act’s general duty clause, which is basically the Act’s catchall provision, for exposing its employees to the hazard of being struck by pipe fragments.  Specifically, OSHA blamed the employer for failing to follow the restraining gland’s manufacturer’s installation instructions and for failing to adhere to guidelines in the American Water Works Association’s (“AWWA”)  standards.

The employer successfully contested the citation.  An administrative law judge ruled that the employer’s alleged failure to follow installation instructions and the AWWA’s guidelines did not render the employer liable for the pipe explosion.  Rather the judge found that the employer took proper actions and that there was insufficient evidence to support an assertion that anyone involved should have “recognized that it was a hazard to tighten T-bolts to stop a small leak without first depressurizing the pipe.”

Thereafter, in a petition for review, the Secretary of Labor unsuccessfully argued that the employer’s alleged failure to follow the manufacturer’s instructions or the AWWA’s guidelines  evidenced a violation of the Act’s general duty clause.  However, the commission reasoned that neither the instructions nor the standard contained a safety warning or suggested that failure to comply could lead to injury.  Rather, there was a lack of evidence establishing that the instructions or guidelines established that overtightening the T-bolts could create a hazard of being struck by pipe fragments during a pressure test.

If you are an employer who has been cited for an OSHA violation, the attorneys at Harmon & Davies can assist you with contesting a citation.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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Court Sides with Employer that Terminated Employee after Catching her Partying while on FMLA Leave

by HDlawblog Posted: Thursday, 1/10/2013

In the case of Jaszcyszyn v. Advantage Health Physician Network, the Sixth Circuit recently sided with an employer that terminated an employee after it caught her partying at a Polish heritage festival while she was supposedly too disabled to work.  It’s a case of Facebook strikes again.  The termination was based upon the employer’s belief that the employee was engaging in FMLA fraud.

The whole ordeal came to the employer’s attention after the partying employee was spotted by her Facebook friend/coworker partying it up while her colleagues were at the office covering for her.  Naturally, the coworker took the pictures to a supervisor.

The employer gave the employee an opportunity  to explain the discrepancy between her claim of complete incapacitation and her partying behavior in the photos.  Guess what?  The employee didn’t really have a response, was silent, or claimed that she was in pain at the festival and just not showing it.  When the employee repeatedly failed to respond or to provide a legitimate justification for her action, the employer terminated her.  Following the employee’s termination, someone in HR completed a report that selected “absenteeism/lateness” from a list of six possible reasons for discharge.

The employee filed a lawsuit in the U.S. District Court for the Western District of Michigan alleging that she was fired in violation of the FMLA.  Her claims included a count for interference with her right to take leave and a count for retaliation for taking leave.  The trial court dismissed the employees’ claim before it went to trial and the employee appealed to the Sixth Circuit.

On appeal, the court found that the employer had not interfered with the employee’s right to take FMLA leave as it had granted her requests for FMLA leave in full.  As for the employee’s retaliation claim, the court found that the employee offered little or no evidence linking her termination to activity protected by the FMLA.  Moreover, even though the person in HR had checked “absenteeism” on the form rather than “fraud” the court was not persuaded that the employee’s mere use of leave was the reason for her termination.  The court specifically said that selecting absenteeism on a standardized form did not establish that the employer’s explanation of the firing was a pretext for unlawful retaliation.  Rather, the court found that the employee never refuted the employer’s honest belief that the employee’s partying at the Polish heritage festival was inconsistent with her claims of disability.  Therefore, the employee could not show that the employers legitimate reasons for terminating the employee, i.e., her fraudulent behavior, was a pretext.

Employer Tip:  Employers should be aware of the sensitive issues that surround terminating employees while they are on FMLA leave.  While this case ended well for the employer, the employee might have had less fodder for her lawsuit if the HR person had not checked “absenteeism”, but had rather written “fraud” on the form.  It is recommended that you consult with an attorney before making such decisions.  The attorneys at Harmon & Davies are here to advise employers on all Employment and Labor Law matters.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Another Employee Fails in Her Attempt to Pursue an FLSA Claim Involving Expressing Breast Milk at Work

by HDlawblog Posted: Friday, 12/28/2012

The passage of the Fair Labor Standards Act (“FLSA”) provision requiring employers to provide mothers a reasonable break time and private place to express breast milk has created fodder for a few lawsuits, one of which I blogged about not too long ago.  In another recent case (Miller v. Rosche Surety & Cas. Co.), the 11th Circuit, a federal court, held that a female employee who was fired after she sent a company executive an email asking where she could express breast milk, while temporarily working at a different office, did not have a viable retaliation claim under the FLSA because no reasonable jury could interpret her email as a protected complaint.  Allow me to explain:

The FLSA protects employees who engage in protected activity from retaliation by their employers.  A clear example of a protected activity would be a written complaint to an employer informing the employer that the employee believes his/her rights under the FLSA are being infringed upon and calling for protection of those rights, but rarely are complaints to employers so straightforward.  Therefore, to determine whether a complaint constituted a protected activity, the law asks whether a reasonable jury could interpret the complaint as protected activity.  And, according to a Supreme Court ruling in 2011 (Kasten v. Stain-Gobain Performance Plastics Co.) the highest court of our nation has even said that an oral complaint may trigger the FLSA’s anti-retaliation provision.  However, even an oral complaint has to have some degree of formality in order to give the employer fair notice that an employee is lodging a grievance.  Indeed, a complaint needs to be clear and detailed enough to put a reasonable employer on notice, considering the context and content, that an employee is asserting rights provided by the FLSA and calling for protection of those rights.

In the Miller case, a female employee who worked for a Florida bail bond company simply sent an email to a company executive asking about where she could use her breast pump while working somewhere other than her usual place of work.  The 11th Circuit held that this inquiry could not reasonably be construed as an FLSA complaint because the email did not put the employer on notice that the employee was lodging a grievance.  The 11th Circuit also held that the employee could not raise a triable issue regarding whether the employer violated the FLSA provision that requires employers to provide employees with a private place to express milk because the employee testified that she was given necessary breaks for this purpose and had access to a private place to do so while at her regular office.

Interestingly, the employee cited to a Family Medical Leave Act (“FMLA”) case to support her view than an employee’s “prospective request” that an employer comply with the FLSA is “protected activity” under the act.  However, the 11th Circuit distinguished the FMLA case in which it ruled that an employee’s pre-eligibility request for post-eligibility maternity leave was protected under the FMLA on the basis that the FMLA contains a provision making it unlawful for employers to “interfere with, restrain, or deny” an employee’s exercise, or attempt to exercise, any right provided by the FMLA while the FLSA lacks a comparable provision.

Finally, the employee unsuccessfully argued that because the employer monitored her email communications at work, an email that she sent to a friend under the subject line “Federal Law” that referenced the FLSA provision regarding expressing breast milk was akin to an FLSA complaint. The Court rejected this argument because the employee never showed the email to the employer and never told anyone at her company that she believed the company was violating the provision.  Therefore, the email to the employee’s friend did not effectively notify the company of her grievance.

Lesson for Employers:  Although this case ended well for the employer, employers should take issues surrounding expressing breast milk at work seriously.  In a case such as the one discussed above, the employer, knowing that the employee was pumping at work, might have chosen to proactively inform the employee where she could pump while working at the different location, which effort would have cast the employer in the best light possible.  For large employers, paying attention to the individual needs of each employee might not be possible, but larger employers might be able to designate lactation areas that eliminate the need for employees to inquire about suitable places to pump while visiting other offices or have written express breast milk policies that address how employees should handle pumping away from their regular place of work.  The attorneys at Harmon & Davies are here to assist employers with navigating issues surrounding expressing breast milk at work.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Construction Contractors: Don’t Be Fooled, Read Your Collective Bargaining Agreement

by HDlawblog Posted: Monday, 12/10/2012

In IBEW Local Union No. 102 v. Quality Electric & Data, Inc. the Third Circuit (a federal appellate court) recently held that a union became the exclusive bargaining representative for all of the electrical contractor’s employees by virtue of the electrical contractor entering into an 8(f) pre-hire agreement with the union, even though the electrical contractor’s employees did not authorize the union as their 9(a) representative.  Accordingly the employer was required to make pension contributions for all of its employees, not just for its employees who were union members or who worked on union jobsites.

In so ruling, the court explained that an 8(f) pre-hire agreement, which is unique to the construction industry, binds an employer to a collective bargaining agreement in relatively the same manner as a 9(a) agreement whereby employees authorize a union to be their representative.  Hoping that other construction contractors can learn from the electrical contractor’s mistakes, I have included a brief overview of the case below.

Several years ago, a union representative met with the electrical contractor and insisted that the electrical contractor use union labor on one of its jobsites.  The electrical contractor agreed and signed up with the union.  The union presented the electrical contractor with several documents known as “Letters of Assent.”  By signing the letters, the electrical contractor agreed to be bound by the union’s Collective Bargaining Agreement (“CBA”).  Accordingly, the Letters of Assent constituted 8(f) pre-hire agreements under the applicable statute.

The union’s CBA required employers to contribute to workers’ pension benefits by making contributions into a fund designated by the union.  The electrical contractor claims that the union representative told him that the Letters of Assent only bound the electrical contractor to the CBA for its union employees and employees who worked on union jobsites.  Thus, the electrical contractor claimed that it was under the impression that it did not have to make contributions to the fund for its employees who were non-union members or who worked on non-union projects.

Thereafter, the electrical contractor sporadically used union labor and worked on union projects.  When it did, the electrical contractor made contributions to the fund as required by the CBA.  During this time, the electrical contractor also employed non-union workers who did not work on union jobsites.  The electrical contractor made no contributions to the union’s fund for these employees.

As the result of a compliance audit of the union’s fund, the union discovered that the electrical contractor owed $201,424.40 for delinquent pension contributions to the fund.  The delinquency was accounted for by the fact that the electrical contractor was not making contributions for its non-union workers who did not work on union jobsites.  The union took the position that per the CBA the electrical contractor was supposed to make contributions for such individuals.  The electrical contractor took the position that because the union never became the exclusive bargaining representative of all its employees, via the employees authorizing the union to serve as their 9(a) representative, the electrical contractor was not required to contribute to the fund for all of its employees.

Although the court found that the electrical contractor was correct in asserting that an 8(f) agreement could not convert into a 9(a) agreement, absent a majority election, it noted that an 8(f) pre-hire agreement binds and employer to a collective bargaining agreement in relatively the same manner as a 9(a) agreement.  According to the court, the only true difference between an 8(f) agreement and a 9(a) agreement is that a 9(a) agreement requires an employer to bargain with the union after the agreement expires, whereas when an 8(f) agreement expires, the employer can walk away.

Because the CBA clearly required the electrical contractor to make pension contributions for all of its employees working within the union’s jurisdiction, the court held that it must interpret and enforce the unambiguous terms of the agreement.  Specifically, the CBA required the employer to contribute funds for “each employee under the jurisdiction of the agreement.”  Accordingly, the electrical contractor could not escape the CBA’s plain meaning that it was required to make pension contributions to funds for all its employees performing work within the union’s trade and territory.

Lesson for Contractors:  When entering into Collective Bargaining Agreements read the terms carefully and do not rely upon any verbal assurances that conflict with the terms of the CBA.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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An Update for Employers on Employees’ Rights to Express Breast Milk at Work

by HDlawblog Posted: Tuesday, 12/4/2012

Not too long ago, the Patient Protection and Affordable Care Act (“PPACA”) amended the Fair Labor Standards Act (“FLSA”) to require employers to provide reasonable beak time for employees to express breast milk for nursing children and I immediately envisioned a slew of lawsuits related to this new requirement.  Under the PPACA, employers are required to provide employees with a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public.  For many employers this is easier said than done as many work environments present obvious challenges.  For example, where do employees pump when they are at construction sites, traveling in a car (particularly with a sales partner), or on a plane (think pilots and flight attendants)?

In Salz v. Casey’s Marketing Company, an employee working at a convenience store (a work environment not particularly conducive to pumping) returned from maternity leave and requested a private and secure place where she could express milk.   The employer allowed the employee to use a store office.  However, while expressing milk in the store office, the employee discovered that there was a functioning video camera in the room.  The employee alleged that she had never been told about the camera and she conveyed her discomfort about its presence.  According to the employee, the company failed to meaningfully respond to her complaint about the camera.  The company allegedly refused to disable the camera and simply told the employee to place a plastic bag over the video camera while she was pumping milk.

Thereafter, the employee was unable to relax with the camera in the office and experienced reduced milk production.  The employee alleged that when she complained, the company retaliated against her by reprimanding her for failing to fill an ice cream machine, failing to put hot dogs on the grill, and leaving dirty dishes.

Eventually the employee quit her job and filed a lawsuit in Iowa state court alleging that the company had denied her the right to express her milk in a secure and private place as required by PPCA’s amendment to the FLSA, that the company violated her common law right to privacy under Iowa law by installing and operating a camera in a room where the company knew she was expressing milk, and she asserted the company constructively discharged her in violation of the FLSA in retaliation for her complaints.  (Note: even though she quit, the law sometimes deems a company to have discharged an employee where it makes life for the employee so bad that the employee essentially has no other option but to quit).

The case was removed to federal court where the judge dismissed the employee’s claims for lactation rights on the basis that the PPACA did not create any private right of action against an employer that violates the requirement.  Rather, the PPACA gave the employee the right to file a complaint with the Labor Department, but not to initiate her own lawsuit.

However, the court held that the employee could pursue her claim for retaliation because the FLSA protected the employee from being retaliated against for complaining about the lack of an adequate place to express milk, noting that once an employer discriminates or discharges an employee in relation to an employee’s complaint about the employer’s express breast feeding policy, they have violated the FLSA.

Lesson for Employers:  Although the court said that an employee may not pursue a private right of action for being denied a secure and private place in which to express breast milk, Employers should take this issue seriously.  This includes instituting an express breast feeding policy, providing employees with a secure and private place in which to express milk, and taking seriously any complaints from employees about the adequacy of the designated space.

 

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