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Freedom of Expression: Employee Alleges Inadequate Privacy to Express Breast Milk

A federal district court in the Northern District of Iowa recently dismissed a convenience store worker’s claim that her employer violated a provision of the Patient Protection and Affordable Care Act (the PPACA) by not providing her with a private place to express her breast milk. However, she was allowed to go forward with her claims that she was retaliated against and constructively discharged for complaining about her employer’s breast milk expression policy. The case highlights the importance for employers to be aware of some of their lesser-known new responsibilities under the PPACA.

Background The plaintiff, Stepheni Salz, returned to work at a convenience store on April 17, 2011, following a maternity-related leave of absence. Salz was nursing her child during that time, and she informed her employer of her need for a private place at the store to express her breast milk. Her supervisor allowed her to use the store office, which she agreed was a secure and private place to use for that purpose. On July 28, 2011, Salz noticed an operating video camera in the office while she was expressing her breast milk. Salz later learned that the camera had been installed in the office around July 15, 2011, when new owners had acquired the convenience store.  After initially ignoring Salz’s requests for more privacy, the new owners told her to place a bag over the camera while she was using the room, but they refused any further accommodations. Salz complained about what she considered to be inadequate accommodations, and soon thereafter she was reprimanded for failure to perform several of her work duties at the convenience store. Salz then left her position and filed a suit against her employer claiming violation of the express milk provisions of the PPACA, constructive discharge  and retaliation.

New Express Milk Provisions in the PPACAThe PPACA express milk provisions state : (1) An employer shall provide—

(A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk; and

(B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

(2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose. An employer who violates the above express milk provisions “shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.”

The Court’s Ruling

The court stated that since: (1) employers are not required to pay employees for the break time used to express the breast milk; and (2) the only penalty for an employer’s violation is to pay unpaid wages, there is no manner of enforcing the express milk provisions in the statute. The court also noted that a recent notice from the Department of Labor limited an employee claiming violation of the express milk provisions to filing claims directly to the Department of Labor. The Department then may seek injunctive relief in federal court, but an individual has no right to seek relief in court.  Accordingly, the court dismissed the plaintiff’s PPACA claim. The court found, however, that a different section of the law provided for causes of action for discharge or any other discrimination as a result of filing any complaint under or related to the express breast feeding provision. As a result of this finding, the court allowed Salz’s constructive discharge and retaliation claims to proceed.

Lesson for Employers

The court’s decision clarifies the risks to employers whenever employees exercise rights provided under a multitude of statutes.  Even though the employer believed that it was accommodating the employee’s rights, adverse action taken at or about the time an employee asserted rights raised the risk of discrimination and retaliation claims.  Courts have increasingly issued rulings that protect employees who assert retaliation claims – and plaintiffs’  employment counsel consider this a growth area of business.  Consequently, prudent employers should consult with employment counsel when considering adverse action against any employee who asserts rights that are protected under the law.




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