New Lactation Law May Provide Basis for Retaliation Claim

Eric Paltell
Eric Paltell

By Eric Paltell

One of the more obscure provisions of the Patient Protection and Affordable Care Act (a/k/a “Obamacare”) amends the Fair Labor Standards Act (“FLSA”) to require employers to provide break time and a private place for employees to express breast milk for nursing children.  Although the amendments did not expressly give employees a right to sue employers who do not comply with the law, a recent federal court decision holds that employees who are disciplined or discharged for complaining about a lactation policy may bring a claim for retaliation under the FLSA.   Salz v. Casey’s Marketing Co.,  No. 11-cv-3055-DEO(N.D. Iowa July 19, 2012).

Stepheni  Salz was a convenience store employee who had recently returned to work after leave for the birth of a child.  She had made arrangements to express breast milk in the store’s office, and became concerned when a video camera was placed in the office. She complained to management, but the store refused to remove or disable the camera.  Subsequently, Salz was disciplined for failure to fill an ice cream machine, failure to put hot dogs on the grill, and leaving dirty dishes.  Thereafter, she resigned and sued her employer for violations of Section 207(r) of the FLSA (the lactation rights provision), as well as Section 215(a)(3), which prohibits retaliation against persons who complain about alleged violations of the FLSA.

The United States District Court for the Northern District of Iowa dismissed the claims alleging a violation of Section 207(r),  holding that employees must pursue such claims directly with Department of Labor (who may then sue on the employee’s behalf).  However, the Court refused to dismiss the retaliation claim, finding that Section 215(a)(3) of the FLSA provides a separate cause of action when an employer takes adverse action against an employee who makes a complaint about an alleged FLSA violation. In short, this means that the Affordable Care Act has now given employees yet another basis to file private lawsuits against employers for alleged wrongdoing in the workplace.

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