Employee Disciplined after Complaint about Workplace Lactation Policy has FLSA Retaliation Claim

  • July 24, 2012

The Patient Protection and Affordable Care Act amended the Fair Labor Standards Act to require employers to provide break time and a private place for employees to express breast milk for nursing children.  While it did not create a private right of action against an employer, according to a federal district court in Iowa, the PPACA amendments to the FLSA did extend the wage-and-hour law’s existing prohibition against employer retaliation for worker complaints about FLSA violations to complaints over the new lactation rights.  Salz v. Casey’s Mktg. Co., No. 11-cv-3055 (N.D. Iowa, July 19, 2012).  Thus, while the plaintiff’s PPACA non-compliance claim must be filed with the Department of Labor, rather than a court, she may sue the employer directly for retaliation and constructive discharge under the FLSA.


Stepheni Salz worked for a convenience store. On April 17, 2011, she returned to work after a leave of absence related to the birth of her child. She was a nursing mother at the time she returned to work. Salz’s supervisor assured her the store’s office was a secure and private place to express breast milk, and Salz believed the office to be a secure and private place for her to do so.

Two months later, Casey’s Marketing Company acquired the convenience store where Salz worked. A few weeks after that, Salz noticed an operating video camera in the office. The video camera had been installed in the office around the time of Casey’s Marketing’s acquisition of the store. Salz was not informed of its presence.

Salz told the store’s management the camera made her uncomfortable. She was advised by management to cover the camera with a plastic bag, rather than disable the camera. Management refused to provide any other accommodation. Still uncomfortable with the camera, Salz continued to complain to management. She claimed that because of the situation, she suffered decreased milk production, which affected her ability to feed her child. Salz subsequently was reprimanded for allegedly failing to fill an ice cream machine, failing to put hot dogs on a grill, and leaving dirty dishes. She later left her position.

Procedural History

Salz sued the employer in federal district court for a violation of the Patient Protection and Affordable Care Act. The PPACA amended the FLSA to require employers to provide reasonable break time to nonexempt employees to express milk for a nursing child for one year after the child’s birth.  An employer also must provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public to be used by its female employees to express milk.

Salz later amended her complaint to allege retaliation and constructive discharge under the FLSA.  She alleged the employer’s actions in response to her complaints constituted retaliation and constructive discharge in violation of 29 U.S.C. § 215(a)(3). The employer filed a motion to dismiss Salz’s complaint.

Lactation Claim

The District Court dismissed Salz’s PPACA claim, finding there was no private right of action.  Significantly, the Department of Labor, in regulations released in December 2010, stated that claims should be filed directly with the DOL, not the courts. In an enforcement action, the DOL then may seek injunctive relief in federal district court should it be unable to obtain voluntary compliance from the employer. See 75 Fed. Reg. 80073.  In addition, the court noted the PPACA does not require employers to compensate employees for time expressing breast milk, and that enforcement was limited to unpaid wages. See 29 U.S.C. §216(b).

Retaliation and Constructive Discharge Claims

The District Court found, however, that Salz’s retaliation and constructive discharge claims should not be dismissed. Section 215(a) (3) of the FLSA prohibits discrimination against an employee for filing a complaint or instituting a proceeding “under or related to this chapter.” While the PPACA allows a claim for unpaid wages only, § 215(a) (3) provides 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 FLSA, including a complaint under the breast feeding provision.
The court found that once an employer disciplines, discharges, or otherwise discriminates against an employee as a result of an employee’s complaint concerning an alleged violation of the PPACA, it has violated not only the PPACA, but also the anti-retaliation provision of the FLSA. 

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This decision clarifies that employers will not be subject to employees’ private lawsuits for failing to provide qualifying employees opportunities to express breast milk.  However, this decision also points out an expansion of the anti-retaliation protections of the FLSA to include the exercise of lactation rights provided by the PPACA and enforcement remedies previously unavailable.  Employers should review their breast feeding policies to ensure compliance with the law.  Jackson Lewis attorneys are available to answer questions about Salz and to review workplace policies.

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