A mother’s right to lactation breaks in the workplace was recently tested in court, perhaps for the first time. The woman sued under an amendment to the Fair Labor Standards Act (FLSA) that was included in the Affordable Care Act (ACA).

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 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.”

Thompson adds that one other remedy is available if a plaintiff complains to the Department of Labor (DOL) about an employer’s failure to follow the amendment: DOL can investigate and fine the offending employer up to $1,100 per violation. Thompson has heard that only 25 to 30 complaints about lactation breaks have been filed with DOL—among the 25,000 or more the Department receives each year.

That could be, he speculates, because many states have had laws on their books for some time that protect a mother’s right to express breast milk at work; Minnesota’s law was enacted in 1998, and many more states created such laws in 2000 or 2001—well before the matter became part of federal law. The movement began with states protecting the right of mothers to nurse their babies in public spaces, and the laws then began to extend to such private spaces as workplaces.

At some point after those laws became common (some 24 states have them), at least 22 states extended their laws to protect mothers’ rights to express breast milk in private workplaces. The FLSA amendment in the Affordable Care Act specifies that employers must 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.”

Most states that have laws use similar language, but some are more generous. For example, Colorado’s law permits milk expression for up to 2 years after the child’s birth and Vermont’s law permits for up to 3 years. Some states require employers to provide a refrigerator for milk storage.

Thompson notes that when DOL asked for comments on the FLSA amendment regarding lactation breaks, some respondents argued that such breaks, unlike other rest breaks of 20 minutes or less, should be compensated. Other rest breaks, he noted, are interpreted as being for the benefit of the employer—presumably because they refresh workers and help them stay productive.

But it’s tough to see time for the expression of breast milk as being either a rest break or of benefit to the employer, so Thompson expects such breaks to remain unpaid, especially since federal law states clearly that they are noncompensable. As for other provisions of the law, this is definitely an area of developing law, with Salz v. Casey’s being, so to speak, the opening salvo.