District Court: Affordable care act does not Provide Private Cause of Action to Employee Denied Private Space for Expression of Breast Milk

The Patient Protection and Affordable Care Act (i.e., the ACA or “Obamacare”) requires employers to provide their employees with comfortable opportunities to express breast milk while at work. Specifically, the ACA mandates that employers must provide employees with unpaid breaks during which to express breast milk as well as “a place, other than a bathroom, that is shielded from view and free from intrusion with coworkers and the public” in which to do so. 29 U.S.C. §207(r). A federal district court judge in Iowa ruled earlier this week, however, that an employee whose rights are violated under this provision may not sue her employer. Instead, she must file a claim directly with the Department of Labor, which is then charged with enforcing the rules.

The retail employee in the case, Salz v. Casey’s Marketing Company, No. 11-CV-3055 (N.D. Iowa July 19, 2012), requested a private space for expression of breast milk for her newborn child. She was directed to use the retail store’s office area. Believing the office to be private and secure, she used it several times for expression. She later discovered, however, that a surveillance camera was installed in the office. The employee asked about disabling the camera and was told that she would have to cover it with a plastic bag if she wanted privacy. The employee subsequently sued, alleging a violation of her rights under §207(r) of the ACA. The employer filed a motion to dismiss her claim, arguing that §207(r) does not provide employees with a private cause of action.

Judge Donald O’Brien of the Northern District of Iowa looked directly to the language of  the ACA, observing that the enforcement provision for §207 provides that an employer who violates any portion of §207 (including part (r)) “shall be liable to the employee" only "in the amount of their unpaid minimum wages.” 29 U.S.C. §216(b). Reading the two sections together, Judge O’Brien determined that Congress must not have intended for enforcement of the expression rules through a private cause of action: specifically, while §207(r) does not require employers to pay employees for time spent expressing their milk, the only available relief under §216(b) is recovery of unpaid wages (of which the employee would obviously have none). The ACA, the Judge, therefore, concluded, “limits an employee to filing claims directly with the Department of Labor,” which may then bring an action against the employer.

This issue raised by §207(r) is likely to result in further litigation, but this case of first impression suggests that employers will not be subject to employees’ private lawsuits for failure to provide opportunities for expression of breast milk. At the same time, a claim by the Department of Labor is costly and problematic, so employers should review their policies in order to ensure that they are meeting the standards of §207(r) of the ACA (i.e., providing employees with time and a secure space).