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.
