As we discussed at the time of enactment, the FLSA was amended in 2010 to require that employers provide non-exempt employees with “a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public” to express breast milk.  In a new decision, a federal judge in Iowa (Judge Donald E. O’Brien) has ruled that any alleged interference with this new right must be addressed solely by filing a complaint with the Department of Labor, not through a private lawsuit. Salz v. Casey's Mktg. Co., N.D. Iowa, No. 11-cv-3055, 7/19/12. However, in the Court’s view, a private court action is available to employees who assert they were subject to retaliation for complaining about an employer’s practices under the provision, 29 U.S.C. § 207(r).

In Salz, convenience store plaintiff discovered a video camera had been placed in the space where she was expressing milk.  Plaintiff alleged she was unable to relax with the camera and experienced reduced milk production.  She further alleged that after complaining, she was retaliated against by her employer in the form of reprimands.

Judge O’Brien ruled that, because the DOL does not require an employer to pay for the time spent expressing milk, there were no unpaid wages at issue and the FLSA does not “provide a remedy for employee denied lactation rights.”  Judge O’Brien further observed that the DOL has “identified the remedy of affected employees . . . filing a complaint with the [Department].” However, the Judge ruled that the plaintiff’s complaints regarding the employers 07(r) compliance could constitute protected activity for purposes of supporting an FLSA retaliation claim under 29 U.S.C. § 215(a)(3).  Because the anti-retaliation provision is broader than the substantive rights under the FLSA and Section 16(b) (providing only for unpaid wages), the plaintiff’s retaliation claim survived.

Salz imposes a familiar employment law scenario in the context of the FLSA’s new breast feeding provision:  an employer’s initial action does not expose it to a court action. but its actions in response to an employee’s complaint regarding the initial employment action are deemed to be potentially retaliatory.  Employers must ensure compliance with federal and state breastfeeding requirements, and in all contexts must take reasonable measures to avoid providing employees with viable retaliation claims.