In 2010, one provision of the Patient Protection and Affordable Care Act amended the Fair Labor Standards Act, to require employers to provide a nursing mother "reasonable break time" to express breast milk in the one year period after the birth of her child. Such break time need not be compensated. The amendment also requires that employers provide a private place (other than a bathroom) for an employee to express breast milk. An employer with fewer than 50 employees is not subject to these requirements if they would impose undue hardship, in the form of difficulty or expense for the employer, relative to the size, financial resources, nature or structure of the business.* 29 U.S.C. § 207(r). The amendment, however, did not expressly state what, if any, remedies are available to nursing mothers when their employers violate the amendment. This issue was addressed recently in Salz v. Casey's Marketing Co.**
In Casey's Marketing, a convenience store employee was allowed to use her supervisor's office for expressing breast milk. When a new company bought the store, it installed a video camera in the office without prior notice. The plaintiff first observed the camera while it was operating and her breast was exposed to the camera. The company's reaction - when the plaintiff complained - was to instruct her to put a plastic bag over the camera. It allegedly declined to disable the camera. The plaintiff claimed that, even with the plastic bag over the camera, she could not relax and her milk production was noticeably reduced. She quit after she received unjustified criticism for her job performance after she complained about the camera. She asserted she was constructively discharged in retaliation for making her complaint.
The Court in Casey's Marketing dismissed the plaintiff's claim for the employer's violation of 29 U.S.C. § 207(r), in part because the amendment provided no civil cause of action to individual victims of violations. The Court observed that the remedies generally available for violations of Section 207 are in the form of unpaid minimum wages, unpaid overtime compensation, and liquidated damages.*** However, because the breastfeeding amendment expressly provides that such breaks need not be compensated,**** "there does not appear to be a manner of enforcing the express breast milk provisions." Instead, the sole relief available for a violation of 29 U.S.C. § 207(r) is injunctive relief, in a lawsuit filed by the U.S. Department of Labor. This reading of the law has been supported by the DOL.
The plaintiff in Casey's Marketing was not denied entirely, however. Viewing her allegations of constructive discharge most favorably to her, the Court found the allegations sufficient to state a claim for retaliation under other provisions of the FLSA, 29 U.S.C. §§ 215(a)(3) & 216(b). Therefore, she was permitted to pursue relief in the form of reinstatement, lost wages, liquidated damages and attorney fees.
The Patient Protection and Affordable Care Act made clear that it does not preempt state laws that, in some instances, afford greater protection to nursing mothers. For example, in Colorado, employers are obligated to make reasonable accommodation for nursing mothers, including the use of break time for expressing breast milk, for a two year period following a child's birth.*****
*29 U.S.C. § 207(r)
** Salz v. Casey's Marketing Co., No. 11-CV-3055-DEO (N.D. Iowa July 19, 2012)
***29 U.S.C. § 216(b)
****29 U.S.C. § 207(r)(2)
***** Colo. Rev. Stat. § 8-13.5-104