In one of the first reported decisions testing the boundaries of the 2010 amendment to the federal Fair Labor Standards Act requiring reasonable break time and private areas to express breast milk, an Iowa district court held that nursing moms have no private right to sue their employers for inadequate facilities. Salz v. Casey’s Marketing Co. (N.D. Iowa 2012). Instead, nursing moms can bring complaints to the U.S. Department of Labor, who can investigate and take further action.
Casey’s reportedly offered Salz use of the store’s office. Salz was not comfortable with this because the office contained an active camera. Casey’s said that Salz could place a bag over the camera and did not offer other alternatives. Salz was disciplined for performance reasons shortly after complaining. Salz sued alleging that Casey’s failed to provide a private place for her to express breast milk and retaliated against her for complaining about the room.
The court examined the FLSA nursing break provision, which does not require employers to compensate employees for such breaks, along with the section saying that the remedy for FLSA violations is unpaid wages. As nursing breaks are unpaid, the court said the FLSA remedy is not available. And, because there is no remedy, employees cannot sue their employers under the FLSA for nursing break violations.
The court did, however, allow Salz’s retaliation claim to go forward. The FLSA’s anti-retaliation provisions are broad and Salz’s retaliation claim is not dependent upon the success of her nursing break claim to go forward.
Employers should take three things away from this case. One, although employees may not be able to sue under the FLSA for nursing break violations, the Department of Labor can. Two, state laws may offer greater remedies to nursing moms. Three, retaliation claims can succeed even where the underlying claim fails.