To Pump or Not to Pump — Nursing Mothers and Breastfeeding Protection Laws

01 October 2012 Labor & Employment Law Perspectives Blog

There does not seem to be a manner of enforcing the express breast milk provisions of the Patient Protection and Affordable Care Act (the Act) through the court system. A federal court in Iowa made this finding in Salz v. Casey’s Marketing Co.. The Act provides protection to nursing mothers at their place of employment by requiring that employers provide a reasonable break time for an employee to express breast milk for her nursing child in a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public. The Act also provides that employers are not required to compensate an employee for the time spent expressing breast milk.In Salz, the employee filed a claim against her employer for violation of the Act because her employer failed to provide her with a private place to express breast milk. In her complaint, the employee alleged that when she returned to work at a convenience store after giving birth, she was told she could use the store’s office as a private place to express breast milk. While her breast was exposed, she noticed that there was an operating security camera in the office. After bringing the issue to her employer’s attention, the employer responded that she could place a plastic bag over the camera. The employer refused to provide any other accommodations, such as an alternative location to express breast milk or disabling the security camera. The employee also alleged that after she complained to her employer about the breastfeeding policy, she was retaliated against and had to quit her job.

With regard to enforcement mechanisms for violations of the Act, the Act provides that an employer who violates the express breast milk provisions shall be liable to the employee in the amount of her unpaid minimum wages or unpaid overtime compensation. However, as the Salz court recognized, since employers are not required to compensate employees for time spent expressing breast milk and the enforcement provision is limited to unpaid wages, there does not appear to be a manner of enforcing these provisions of the Act. The court therefore dismissed the nursing mother’s claim for violations of the Act. The court, however, refused to dismiss the employee’s retaliation and constructive discharge claims.

 The Department of Labor (DOL) also has recently recognized that nursing mothers are limited to filing claims for violations of the Act directly with the DOL, not the courts. After the DOL first investigates the complaint, it can then determine whether to seek injunctive relief or damages in federal court. Although the DOL has acknowledged that it will attempt to give priority to these complaints, nursing mothers may not be able to obtain injunctive relief fast enough. Instead, nursing mothers may be faced with the decision of whether to continue nursing or quit their jobs.

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