No Private Right to Enforce the New Breastfeeding Provision of the FLSA

Written by Robert G. Brody and Abby M. Warren on August 20, 2012

On July 19, 2012, a federal district court held in Salz v. Casey’s Marketing Company, that a claim for violation of an employee’s lactation rights had to be brought through a complaint with the Department of Labor (“DOL”) as opposed to the courts, but a constructive discharge and retaliation claim was properly brought in court. 

Plaintiff, a nursing mother, returned to her job at a convenience store after giving birth.  She was assured by her supervisor that the office in the store was a secure and private place to express breast milk.  Approximately three months later, Defendant acquired the store.  Shortly thereafter, Plaintiff noticed an operating video camera in the office while her breast was exposed and found out that Defendant had installed the device after acquisition. Plaintiff was uncomfortable and expressed this to Defendant, who told her to put a plastic bag over the camera, but Defendant would not allow her to disable the device and would not provide any other accommodation.  Plaintiff’s discomfort resulted in decreased milk production and when she complained, she was reprimanded for poor job performance; Plaintiff quit.

Plaintiff brought her claims in federal district court including a claim for violation of lactation rights and a constructive discharge and retaliation claim.  The Court dismissed the claim for violation of lactation rights brought under the Patient Protection and Affordable Care Act (the “Act”), Title 29 U.S.C. § 207(r), which amended Section 7 of the Fair Labor Standards Act (“FLSA”) of 1938 (29 U.S.C. § 207).  The provision requires employers to provide a reasonable break time for employees to express milk for infants up to one year old and to provide a place, other than a bathroom, that is private for the employee to express milk.  The Court held that this new provision does not create a private right of action and therefore claims must be brought through the DOL.  However, the constructive discharge and retaliation claims could properly be brought in court. 

This is an interesting clarification of the law, but its impact is limited.  Many states have their own laws protecting the rights of mothers to express milk at work.  In fact, some of these laws give nursing mothers additional rights, such as exempting nursing mothers from jury duty.  The bottom line is before taking any action against nursing mothers, make sure you understand all the laws protecting them – both state and federal.  Also, make sure all your policies are current and compliant with all the new laws.  While technicalities may save you, understanding the law up front is a much safer approach. 

Brody and Associates regularly advises management on complying with the latest state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More

Abby M. Warren is an Associate with Brody and Associates, LLC. She works on both Labor and Employment Law matters. Abby worked at the New Haven Superior Court. Learn More