Court Tosses PPACA Lactation Rights Claim But Agrees FLSA Barred Employer Retaliation

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By Lawrence E. Dubé  

A federal district court in Iowa July 19 held that while the Patient Protection and Affordable Care Act amended the Fair Labor Standards Act to require employers to provide reasonable break time for employees to express breast milk for nursing children, PPACA did not create a private right of action against an employer that violates the requirements (Salz v. Casey's Mktg. Co., N.D. Iowa, No. 11-cv-3055, 7/19/12).

Dismissing former employee Stepheni Salz's claim that Casey's Marketing Co. failed to give her a secure and private place in which to express milk, Judge Donald E. O'Brien of the U.S. District Court for the Northern District of Iowa said PPACA gave Salz a right to file a complaint with the Labor Department, but not to initiate her own lawsuit.

But O'Brien refused to dismiss Salz's claim that she was constructively discharged for complaining about the employer's failure to accommodate her request. The FLSA prohibits employer retaliation against an employee who files a complaint under the wage and hour law, and O'Brien said the protection extends to complaints concerning the new lactation rights under the FLSA.

Dispute Over Nursing Mother's Privacy.

According to the decision and court records, Salz worked at a Garner, Iowa, convenience store for approximately five years before the store was acquired by Casey's, which operates a number of similar stores throughout Iowa.

Salz returned from maternity leave shortly before the store was acquired by Casey's. She requested a private and secure place where she could express milk, and she was allowed to use a store office.

But Salz alleged that in late July 2011, after the new operator took over the store, she discovered while expressing milk that a video camera was in place and functioning in the store office. Salz alleged she had never been informed about the camera, and she expressed discomfort about its presence.

According to Salz, a Casey's representative failed to respond to her complaint. Eventually, she alleged, the company refused to disable the camera, and told Salz to place a plastic bag over the device when she was expressing milk.

Salz alleged that she was unable to relax with the camera in the office, and experienced reduced milk production. When she complained, Salz said, she was reprimanded for failing to fill an ice cream machine, failing to put hot dogs on a grill, and leaving dirty dishes.

Lawsuit Claimed Violations of Federal Law.

Salz later quit her job and filed a lawsuit in state court alleging that Casey's denied her “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public,” as required by PPACA's amendment of the FLSA, 29 U.S.C. § 207(r).

Salz also alleged that Casey's violated her common law right to privacy under Iowa law by installing and operating the camera in a room where the company knew she was expressing milk, and she asserted that the company constructively discharged her in violation of the FLSA because she had complained about her treatment.

The employer removed the action to the Northern District of Iowa based on Salz's assertion of rights under federal law, and then filed a motion to dismiss the statutory claims. O'Brien granted the motion in part, and denied it in part.

Court Dismisses Claim Lactation Rights Denied.

O'Brien said that PPACA added Section 207(r) to FLSA, but the wage and hour law has its own provision for enforcement, 29 U.S.C. § 216(b). Section 216(b) provides that an employer violating Section 207 of the wage and hour law is liable to affected employees in the amount of “their unpaid minimum wages, or their unpaid overtime compensation, as the case may be,” as well as liquidated damages authorized by the statute.

But the court said the lactation rights added to FLSA by PPACA do not require an employer to pay for an employee's time spent expressing milk, so there are no “unpaid wages” at issue and Section 216(b) does not provide a remedy for an employee denied lactation rights.

Noting that DOL has identified the remedy of affected employees as filing a complaint with the agency (28 HRR 1380, 12/27/10), O'Brien said that to the extent Salz was seeking private enforcement of the statutory lactation provision, her complaint was dismissed.

FLSA Retaliation Claim Survives.

But O'Brien said the former employee's claim of constructive discharge should not be dismissed.

The FLSA's anti-retaliation provision, 29 U.S.C. § 215(a)(3), prohibits discriminating against an employee for filing a complaint or instituting a proceeding “under or related to this chapter,” the court observed, adding that the provision may protect informal as well as formal complaints.

Casey's argued that allowing Salz to pursue an FLSA retaliation claim related to alleged violations of the former employee's lactation rights under Section 207(r) would undermine Section 216(b), which limits a plaintiff to recovering unpaid wages. O'Brien disagreed.

“Though Section 216(b) clearly limits a plaintiff claiming a direct violation of Section 207(r) to unpaid wages, Section 215(a)(3) provides for a separate cause of action with separate remedies should an employer 'discharge or in any other manner discriminate against' the employee 'because such employee has filed any complaint . . . under or related to' the Fair Labor Standards Act, including the express breast feeding provision,” the court wrote.

Denying the employer's motion to dismiss the FLSA retaliation claim, O'Brien said “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).”

By Lawrence E. Dubé  

Text of the decision is available at

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