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Davis Brown Employment and Labor Law Blog

Breastfeeding: Private Action & Public Rights - August 23, 2012

The subject of breastfeeding in the workplace, in a restaurant, or at the Iowa State Fair can certainly generate a lot of emotional discourse about the rights of mothers, the needs of infants, as well as the needs of others who may be uncomfortable in the presence of a woman who is breastfeeding.

Many mothers are not comfortable feeding or expressing milk in public and yet the National Institutes of Health and childhood health organizations focus on the importance of breastfeeding for early childhood development. The Federal Government's response to this was part of the Patient Protection and Affordable Care Act which amended the Fair Labor Standards Act and specifically requires that an employer provide "a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers in the public" in which a mother may express breast milk for her infant. The Government does not ask the employer to subsidize the time spent expressing breast milk as such time would be unpaid under the current structure of the statute. The regulation and its implementation has caused a significant amount of confusion and emotional response by employers and others as they attempt to meet these requirements in the workplace.

A recent Federal Court case in Iowa, Salz v. Casey's Mktg, Co. N.D. Iowa (11-cv-3055) (7/19/12) addresses some of these issues.  Ms. Salz brought a claim of constructive discharge, retaliation, and common law invasion of privacy, regarding her breast pumping while working at a local convenience store.  Originally the store was owned by another company and Salz was allowed to pump milk in an office.  An office would normally meet the requirements of being shielded from view and intrusion from co-workers and the public. Subsequently, the convenience store was purchased by Casey's and a working video camera was installed in the office.  Presumably this video camera was for security in the office.  Salz complained and stated that she was uncomfortable with the video. It was suggested that she simply place an item such as a plastic bag over the video camera when expressing milk in order to avoid any potential concerns for her privacy. The presence of the video camera alone upset Salz and she alleged emotional distress, decreased milk production and a series of other issues. After continued complaints regarding this matter, Salz was subsequently disciplined for failing to fill an ice cream machine, among other items, eventually quitting and alleging constructive discharge.

Defendant Casey's moved to dismiss, and Judge O'Brien took a close look at the law, and determined in this instance, that it did not allow a private right of action for the assertion of a lactation right.  Judge O'Brien determined that if Salz wanted to bring a Complaint, she would have to file the Complaint with the Department of Labor regarding the breach of the regulation.  However, O'Brien did allow Salz's claim that she was retaliated against for bringing complaints pursuant to the law, and as such could move forward with her anti-retaliation claims. This portion of the claim, as well as the issues of common law privacy, has yet to be determined.

This is a sample of the issues that arise when what many consider inherently private acts become part of a public or workplace atmosphere.  How to set aside time, where to set aside spots and how to account for time and the vagaries of individual needs can be very complex. Many employers end up applying what is almost a reasonable accommodation standard to the time needed to express breast milk and where such milk can be expressed.  If you are a traveling employer such as home health nurse or over the road sales person it can be difficult to provide a "space" for such purposes. If you have a manufacturing line, the time spent "donning and doffing" can be complicated. Regardless of the issues that may be attached or difficulties of finding appropriate time and space, the employer must make this effort in order to be compliant with the law. This is a situation that will require a "reasonable interactive discussion," with appropriate strategies to minimize potential embarrassment.