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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Betty works for The Big Store as a non-exempt Accounts-Payable Clerk.  She is assigned to help with taking a merchandise inventory over one weekend, and she works a total of 60 hours in that workweek.

On the next payday, she is paid only straight-time wages for the 20 hours of overtime work.  She complains to the Accounting Manager that wage-hour law requires The Big Store to pay her overtime premium pay for this overtime work.  She adds that she is not going to let the matter go.  The Accounting Manager responds simply with a wide-eyed "Whoa!" and walks away.  Ten minutes later, The Vice President of Operations comes to Betty's office and angrily fires her for "not being a team player."

The federal Fair Labor Standards Act's Section 15(a)(3) 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.  Betty has not yet complained to the U.S. Labor Department or filed a lawsuit, so does this mean that she cannot make a claim for unlawful retaliation under the FLSA?

Bad News For The Big Store

The Fourth Circuit U.S. Court of Appeals (with jurisdiction over Maryland, North Carolina, South Carolina, Virginia, and West Virginia) recently joined the majority of other federal appellate courts to have considered the question to rule that even purely internal FLSA complaints by employees can support an FLSA retaliation claim.  In Minor v. Bostwick Laboratories, Inc., that court interpreted the words "filed any complaint" to require even "intracompany complaints to be considered protected activity within the meaning of [the FLSA's] antiretaliation provision."

The court emphasized that not every situation in which an employee "let[s] off steam" to an employer is protected under the FLSA.  Drawing upon the U.S. Supreme Court's 2011 ruling in Kasten v. Saint-Gobain Performance Plastics Corp. (about which we reported last March), the Fourth Circuit framed the question as being whether an employee's complaint is "sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection."  Do Betty's statements meet this standard?  Is this an argument that The Big Store wants to have?

It's Not The "Ordinary" FLSA Claim

Under the FLSA, the liability for unlawful retaliation can include more than just back-wages, liquidated damages, attorney's fees, and the other, more traditional remedies.  Instead, the exposure can also consist of awards of compensatory damages, reinstatement for a terminated employee or "front pay" in the alternative, and (in many jurisdictions) even punitive damages.

The Big Store is probably in for a rough ride.  Wiser employers will want to take a more considered approach in evaluating and responding to an employee's wage complaints.

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The U.S. Supreme Court ruled today that an employee's oral complaints about a violation of the federal Fair Labor Standards Act can trigger that law's prohibition against retaliation.  In Kasten v. Saint-Gobain Performance Plastics Corp., the Court said that this would be so when the complaint is "sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the [FLSA] and [as] a call for their protection."

Saint-Gobain had also argued that the FLSA's anti-retaliation provision applied only to complaints made to the U.S. Labor Department, rather than to those directed solely to the employer.  The Court said that it would "state no view" as to whether this argument had merit.  In dissent, Justice Scalia suggested that the Court's ruling made no sense without an unstated, underlying assumption that complaints directed only to employers are protected conduct.

For a full summary of today's ruling, read our Legal Alert.

Tough talk and other recent developments could reveal an increasingly adversarial, "gotcha" approach to FLSA enforcement by the U.S. Wage and Hour Division.  A prior post covered both the We Can Help initiative and other intensified U.S. Labor Department enforcement measures.

The Division also announced this week that, as part of a broader DOL policy, it will disclose quarterly investigative information on its website.  This will show wage-hour violations found in specific investigations, as well as back-wage amounts, numbers of employees involved, and any civil money penalties assessed. 

Then, on April 29, senior DOL officials said that they are developing "Plan, Prevent, Protect" rules to require employers (1) to create a plan for identifying and correcting non-compliance; (2) to implement the plan in concrete ways; and (3) to monitor the plan's effects.  A New York Times account indicates that an employer will be required to disclose some or all of the plan to the Labor Department and to employees.  DOL believes that these rules are warranted because "too many" companies "are playing a dangerous game of catch me if you can".  While it remains to be seen, we anticipate that failing to follow these Plan, Prevent, Protect requirements to the Division's satisfaction could lead to civil penalties and perhaps other sanctions.

The FLSA can seem simple in the abstract, but it is often difficult and complex to deal with in the real world.  Any worthwhile compliance plan necessitates knowing exactly how the FLSA applies in innumerable situations.  But at the same time DOL is adopting a take-no-prisoners enforcement posture as to a no-excuses law, the Division is offering little guidance on the endless FLSA gray-area questions that exist.

In the past, some employers have asked for the Division's official written explanation of how the law works in particular situations.  The Division's reply educated both the inquiring employer and the many others who read it.  Instead of continuing to leverage its efforts in this way, the Division has announced that it will respond to interpretation requests by sending generalized legal citations instead of specific answers.  It has also demonstrated its willingness to change or withdraw prior interpretations without warning, thereby adding to uncertainty and unpredictability in FLSA matters. 

The current atmosphere is likely to affect how the Division views investigations right now.  Employers should not wait for DOL compliance-plan rules to come out before systematically being sure that their pay policies and practices pass muster under the FLSA.

UPDATE 05/23/10:  Fisher & Phillips participated last week in a Washington, D.C. "Stakeholder Forum" conducted by the Division.  On multiple occasions, we urged the Division to reconsider its new position regarding opinion letters.  Among other things, we pointed out that these letters serve a far-broader educational purpose than the Division might realize, such that the "cost/benefit analysis" it referred to in taking its recent stance might well have ascribed too little weight to the positive impact its opinions have upon FLSA compliance.

The federal Fair Labor Standards Act now requires covered employers to grant breaktime to a worker for the purpose of expressing breastmilk for a nursing child. The employer must also provide a suitable location for her to do so. This obligation is contained in the new FLSA Section 7(r) that was buried in a little-noticed part of the Patient Protection and Affordable Care Act. So far as we can tell, the provision took effect immediately when the law was signed on March 23, 2010.

Employers need not pay for the break.  No minimum break length is specified, but the break must be a "reasonable" one.  Employers are required to provide places for the breaks that are "shielded from view and free from intrusion from coworkers and the public."  The location cannot be a bathroom.

The employee must be permitted to take a break each time she needs to express milk. The break requirement extends for one year after the child is born.

An employer of fewer than 50 workers would be excepted from the requirement if allowing the breaks would cause "undue hardship". This condition is met only if the employer will face significant difficulty or expense in light of the employer's size, financial resources, nature, or business structure.  We anticipate that this high standard will likely be a hard one to meet as a practical matter.

We assume that Section 7(r) does not apply to employees who are completely excluded from the FLSA's overtime section. For example, this would be the case as to those who qualify for one or more of the executive, administrative, professional, or "outside salesman" exemptions.  However, employers should approach this on an exemption-by-exemption basis, because some FLSA exceptions are more-limited in scope.

It is not clear what might be the full range of potential liabilities for failing to comply with this provision.  Presumably, an employer could at least face U.S. Labor Department civil penalties of up to $1,100 for each willful or repeated violation, and the Labor Department could seek a court injunction requiring compliance. Substantial liability could also flow from an employer's having retaliated against a worker who asserts her right to this break.

A number of states already require these kinds of breaks. Section 7(r) does not override any such laws that extend greater employee protections than it does.

UPDATE:  Some have suggested that this amendment conflicts with current U.S. Labor Department "regulations" stating that employers must treat brief breaks as worktime.  Certain Labor Department interpretative guidelines and opinions do say that short rest periods, coffee breaks, snacktimes, and smoking breaks count as compensable hours worked.  A number of courts have adopted most of these views.

Even so, and while a definitive answer must await future developments, it is difficult to see how these Labor Department statements could override the statute's directive that "[a]n employer shall not be required to compensate an employee receiving reasonable break time .  .  . for any work time spent for such purpose."  The Labor Department or the courts might eventually construe "reasonable break time" to mean some presumptive minimum number of minutes.  But interpretations issued decades ago seem insufficient in themselves to impose any requirement that breastmilk-expressing breaks be treated as compensable worktime when the statute itself says otherwise.  Whether pertinent state laws mean that these breaks are to be handled as hours worked is of course a different question.

FLSA Lactation Break Amendment.pdf (33.29 kb)