If you’re not familiar with the phrase in our title, think “expressing breast milk” by a mother who wants to feed it to her child when she gets home from work. Much to many people’s surprise, the right to do so is protected by a provision of the Affordable Care Act—a provision that was recently tested in court, perhaps for the first time.
Security camera in break room. The case, from a federal district court in Iowa, is Salz v. Casey’s Marketing Co. (7/19/12). The plaintiff, Salz, worked at a convenience store owned by Kum & Go. Returning from a leave of absence to give birth on April 17, 2011, she asked for a private space in which to express breast milk while at work. Management assigned her to the store’s office, which she used for several months. But when Casey’s Marketing acquired the Kum & Go chain, it wasn’t long before Salz realized that a video camera had been installed in the store’s office, so that her lactation break was being broadcast elsewhere in the store(!).
She voiced her discomfort, which initially brought no response. At some point, managers told her to put a plastic bag over the camera when she used the office. But Salz had trouble relaxing sufficiently to express her milk, and she complained again. This time, management accused her of neglecting several of her duties in the store, and she resigned and sued.
The law under which she sued is an amendment to the Fair Labor Standards Act (FLSA) that was inserted into the healthcare reform act. And Salz’s suit may be the first time it has been taken to court.
Legal complications set in. The first problem Salz encountered is that the FLSA amendment doesn’t grant what’s known as a “private right of action”; that is, an individual can’t sue for violation of the amendment. Instead, she must file a complaint with the Department of Labor, which may then order the employer to change its practices—in this case, either to disable the camera or give Salz a different space to use. But since lactation breaks are designated in the amendment as unpaid, plaintiffs can’t normally ask for monetary compensation.
What still remains for Salz is the possibility that the federal court will charge Casey’s Marketing with retaliating against Salz and/or subjecting her to constructive discharge—assuming that she resigned because she couldn’t express enough milk to feed her child. Both of those charges can be brought by an individual, and the judge left room for them to proceed.
We asked Atlanta attorney John E. Thompson, a partner with labor and employment firm Fisher & Phillips, to share his comments about this case. First, he noted, he and his colleagues expect this FLSA amendment to be less frequently enforced than other parts of the law, specifically because lactation breaks are unpaid. Said Thompson, “FLSA is really all about recovering unpaid wages [think about class action suits for unpaid overtime], so the law is poorly constructed to cover unpaid breaks.”
In a follow-up article, Thompson will discusses how many states, as well as the FLSA, protect lactation breaks for mothers.