Working mothers who breastfeed know all too well how stressful it can be to find the time and privacy necessary to breast pump at work. According to the White House Council on Women and Girls, “[o]ne of the most common reasons mothers cite for discontinuing breastfeeding is returning to work and not having break time or a private space to express milk.” However, many women do not know that the Patient Protection and Affordable Care Act, sometimes referred to as “Obamacare,” amended the Fair Labor Standards Act to mandate that employers must provide breastfeeding mothers both time and space to express breast milk at work.
Pursuant to 29 U.S.C. § 207(r), employers are now required to provide nursing mothers with: (1) break time to express milk for up to 1 year after birth of the child; and (2) a private place, other than a bathroom, to express milk. The private place must be shielded from view and free from intrusion by coworkers and the public. However, employers with less than 50 employees are not required to follow this law if it would impose an undue hardship. Further, no employer is required to pay an employee for the break time used to express breast milk. The law specifically states that it does not preempt any state laws that provide greater protections for nursing mothers so it is important for mothers to understand the breast pumping laws in their state, if any.
While the Patient Protection and Affordable Care Act expanded the rights of nursing mothers, it did not identify remedies available to an employee if their employer violates the new rules. Instead, the Department of Labor (“DOL”), the entity charged with administering and enforcing the FLSA, issued a notice addressing the remedies issue. See Reasonable Break Time for Nursing Mothers, 75 Fed.Reg. 80073, 80078 (Dec. 21, 2010). Under the DOL notice, an employee has the following remedies available:
(1) When denied rights under 29 U.S.C. §207(r), she may file a complaint with the DOL which may seek injunctive relief in federal district court;
(2) When discriminated against or discharged for exercising rights under 29 U.S.C. §207(r), the employee may file a complaint with the DOL who may seek injunctive relief including reinstatement and lost wages;
(3) When discriminated against or discharged for making a complaint regarding an employer’s violations of 29 U.S.C. §207(r), she may file a separate DOL complaint or bring a private cause of action for retaliation through which she can seek reinstatement, lost wages, and other appropriate remedies, pursuant to 29 U.S.C. 215(a)(3); and
(4) If an employer treats an employee who takes breaks to express breast milk differently than employees who take breaks for other personal reasons, she may have a claim for disparate treatment under Title VII of the Civil Rights Act of 1964.
Recently, a district court in Iowa examined this issue and agreed with the DOL, holding an employee may not bring a private cause of action for a direct violation of 29 U.S.C. §207(r); instead, the employee may only file a complaint with the DOL, which may then seek injunctive relief on the employee’s behalf. Salz v. Casey’s Marketing Co., 2012 WL 2952998 at *3 (N.D. Iowa July 19, 2012). However, the court held 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 not only Section 207(r) but also Section 215(a)(3).” Id. at 4. Therefore, when an employer discriminates against or discharges an employee because she made complaints about the employer’s breast feeding policy, the employee may bring a private cause of action for constructive discharge and/or retaliation. Id. Through this private cause of action, the employee may obtain relief including reinstatement, promotion, payment of wages lost, an additional equal amount as liquidated damages, and reasonable attorney’s fees. Id. at 3-4; 29 U.S.C. 215(a)(3); 29 U.S.C. 216(b).
Attorney Elizabeth A. Schmidt is an associate attorney with Alan C. Olson & Associates, S.C. If you have any questions about employment discrimination, please contact her at [email protected].