Employers still wondering about the effects of providing a private area for nursing mothers to express breast milk are getting a little more clarity on the enforcement scheme of that law under a recent decision from a federal court in Iowa.
We kept you updated on the new requirements under the Affordable Care Act (ACA) for employers with nursing mothers and provided more detail earlier this year when the federal Department of Labor started enforcing it. However, there are still many unanswered questions about this law—the DOL has not yet issued any regulations, and it's still not quite clear how these requirements will interact with existing wage and hour law. One example is enforcement—may aggrieved employees sue in court or must they follow a different process?
It was this last question that the Northern District of Iowa recently addressed. In Salz v. Casey's Marketing Co., the employer provided an office area to its employee who needed to express breast milk during the workday. The employee was told that the office was private and secure, but she later discovered that a video camera was in the room. She told her employer about the camera, stating that she was concerned about the lack of privacy. Her employer then told her to put plastic bag over the camera and refused to provide any other accommodations, including disabling the camera. Because the employee remained uncomfortable knowing that the camera was still in use, she was unable to express as much milk as before to meet her infant's nutritional needs. The employee quit, then sued her employer for its alleged violation of the recent requirements to provide a private area to express breast milk and constructive discharge in retaliation for her complaints about the violation.
The court dismissed her claim for the alleged violation of the ACA requirements. Because the ACA provided no enforcement mechanism for its nursing mother provisions, the plaintiff was limited to the remedies under the Fair Labor Standards Act. The FLSA allows employees to sue only for unpaid wages, and she lost no wages as a result of the violation. Instead, the court said that an aggrieved employee must notify the DOL, who may then bring a suit to require the employer to comply—but, no damages would be available to the employee as a result of the underlying violation.
However, lost wages can result from retaliation against an employee who complains of her employer's violation of the requirements for nursing mothers. The court allowed this claim to survive on that basis.
This decision highlights two issues for employers: first, that employees may still sue in court if employers retaliate against them for complaining about violations of the ACA requirements; and second, although employees cannot sue for ACA violations directly, the DOL has the ability to investigate any complaints and can file suit to enforce the law. As new developments emerge in this area, we will keep you in the loop.