An Iowa federal court has dismissed a worker's claim which
alleged that her employer failed to comply with the federal Fair
Labor Standards Act's Section 7(r) requirement regarding
breaktime for the purpose of expressing breastmilk. Under
this 2010 FLSA amendment, employers are required among other things
to provide places for such breaks that are "shielded from view
and free from intrusion from coworkers and the public."
Private Enforcement of Section 7(r) Not Authorized . . .
In Salz v.
Casey's Marketing Company, the employee sued after she had
allegedly complained about the presence of a video camera in the
room in which she took these breaks, later received reprimands
about performance matters, and thereafter "left her
position." Senior Judge Donald E. O'Brien ruled that
the employee could not enforce Section 7(r) in her lawsuit.
The court reasoned that (i) the FLSA does not require
compensation for these breaks; and (ii) a worker's remedy for a
violation of FLSA Section 7 is limited to seeking unpaid
wages. According to the judge, the employee's only
redress under Section 7(r) itself was to complain to the U.S. Labor
Department.
. . . But There Are Other Remedies!
However, the court refused to dismiss her "constructive
discharge" and retaliation claims brought under FLSA Section
15(a)(3). This provision says in part that it is unlawful to
"discharge or in any other manner discriminate against any
employee because such employee has filed any complaint or
instituted or caused to be instituted any proceeding under or
related to" the FLSA. In the court's view, an
employer violates Section 15(a)(3) by taking adverse action against
an employee because she asserted her rights under Section 7(r).
There have been significant questions about the enforcement of
Section 7(r) since it was adopted as a part of the 2,700-page
Patient Protection and Affordable Care Act. Perhaps little or
no thought was given to these matters in the confused and frenetic
circumstances under which the PPACA was enacted.
Nevertheless, as we
said at the time, it seems clear that Section 7(r)
transgressions can subject an employer to a USDOL investigation, to
a USDOL lawsuit for court-ordered compliance (backed by
contempt-of-court remedies), and to USDOL civil penalties of up to
$1,100 for each willful or repeated violation. Furthermore,
as the Salz decision illustrates, an employer could face
substantial liability for retaliating against an employee who
invokes the requirements of Section 7(r).
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guide to the subject matter. Specialist advice should be sought
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Specific Questions relating to this article should be addressed directly to the author.
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