Nursing Mothers Do Not Have The Right to Bring A Private Cause Of Action Against Employers For Substantive Violations Of The Express Breast Milk Provision Of PPACA

Contributed by Allison Chaplick

In early 2010, the Patient Protection and Affordable Care Act (PPACA) amended the Fair Labor Standards Act, 29 U.S.C. 207, to include the “express breast milk provision.” Under 207(r), an employer is required to 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.

However, an employer does not have to compensate an employee for time spent expressing breast milk.  The enforcement provisions of PPACA, which are found at 29 U.S.C. §216(b), entitle an employee to unpaid minimum wage, overtime and liquidated damages for violations of §207.

On December 21, 2010, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued a Notice explaining that under PPACA’s enforcement provisions “[i]f an employer refuses to comply with the requirements of section 7(r), [. . .] the Department may seek injunctive relief in federal district court.”  

Relying Sections 207(r)(2) and 216(b) and the WHD’s Notice, a district court sitting in the Northern District of Iowa dismissed a plaintiff’s complaint alleging that her employer—a convenience store—substantively violated PPACA when it failed to provide her with a private place to express breast milk.  In Stepheni Salz v. Casey’s Marketing Co., plaintiff alleged that she took a leave of absence after the birth of her child and that when she returned to work she needed to express breast milk.  While the employer did allow her to use the convenience store’s office to express breast milk, after a few months, plaintiff noticed that the office had a working video camera.  Plaintiff complained about the presence of the video camera in the office and was subsequently reprimanded for poor performance.  Plaintiff ultimately quit.

The Salz court concluded that because §207(r)(2) did not require an employer to compensate an employee for time spend expressing breast milk, and §216(b) provides that enforcement of §207 is limited to unpaid wages, there was no private “manner of enforcing the express breast milk provision,” and dismissed her claim.  Notwithstanding the fact that the plaintiff did not have any recourse for the substantive violation claim, the district court did permit her retaliation and constructive discharge claim to proceed because §215(a)(3) of the FLSA makes it unlawful for a employer to discharge or discriminate against an employee for filing a complaint under §207.

With more and more mothers returning to work after maternity leave, it is important for employers to understand their obligations under PPACA, and Illinois’ equivalent the Nursing Mothers in the Workplace Act.  However, the enforcement provisions for substantive violations seem to be more “bark than bite” as they are limited to injunctive relief (i.e., requiring reasonable break times, private place to express breast milk).