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“Obamacare” Amendments to FLSA Not Only Way To Protect Pregnant Workers

| Sep 17, 2013 | Gender Discrimination, pregnancy maternity rights |

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Among the many changes brought about by the Patient Protection and Affordable Care Act of 2010 (popularly known as “Obamacare”) is an amendment to the Fair Labor Standards Act of 1938 (FLSA), which requires employers to provide lactating mothers with time, and a place, to express milk.  See 29 U.S.C. § 207(r) .

Under the law, employers must provide nursing mothers with reasonable, unpaid break time to express breast milk for their nursing child for up to one year after the child’s birth. Additionally, the employer must set aside a private place for a nursing mother to express her milk. Notably, employers may not utilize a bathroom to meet the “private place” requirement. While this rule applies to all employers, small employers (generally those with less than 50 employees) are exempt if the requirements would “impose an undue hardship” by causing it “significant difficulty or expense.”

Unfortunately, because the law states that this break time is unpaid, a nursing mother whose rights are violated would be unable to claim that she lost wages as a result of the employer’s violation. In fact, the Department of Labor has recently determined that an employee whose rights have been violated is limited to filing a complaint with the department, who may or may not decide to seek injunctive relief against the employer.

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As a result, the law seems relatively toothless, right? The answer depends on how the employer responds to an employee’s request for time and a place to lactate.

As the employment law attorneys at the Spitz Law Firm know, even if the underlying claim is difficult to prevail on, the employer can still face substantial liability for retaliating against complaining employees. For example, in the recent case of Salz v. Casey’s Marketing Company , the court found that while a nursing mother could not individually enforce the lactation requirement against her employer (who tried to make her lactate in an office with a running video camera!), she could make out a claim for unlawful retaliation after the employer the retaliated against her for complaining about the camera.   Additionally, as we previously blogged, employers cannot discriminate in anyway against nursing mother Under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA).  Thus, the unpaid expressing mother would have a claim if the employer did not pay her, but chose to pay employees for smoking breaks.  Our employment discrimination attorneys would also be able to help nursing mother that now only face a hostile work envirnoment because they to lactate.

Pregnancy discrimination also violates Ohio and other federal laws. In Ohio, R.C. § 4112.02(A) makes it an unlawful discriminatory practice for any Ohio employers: “because of the … sex … of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.” Furthermore, R.C. § 4112.01(B) makes clear that: “For the purposes of divisions (A) to (F) of section 4112.02 of the Revised Code, the terms “because of sex” and “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, any illness arising out of and occurring during the course of a pregnancy, childbirth, or related medical conditions. Women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in division (B) of section 4111.17 of the Revised Code shall be interpreted to permit otherwise.”

If you are facing discrimination or harassment simply because you are pregnant, recently pregnant, or need to express milk, protect your legal rights — call the right attorney.  Employers cannot harass, fire, wrongfully terminate, discriminate against, demote, or wrongfully discipline a female employee just because she got pregnant. When you call the right attorney to schedule a free and confidential initial consultation at (216) 291-4744, you will meet with an attorney from The Spitz Law Firm to discuss wrongful discrimination claims and help you determine the best way to pursue your gender/sex discrimination claims.  Our pregnancy discrimination lawyers know your rights and will fight to protect them.

Disclaimer:

The materials available at this employment law website are for informational purposes only and not for the purpose of providing legal advice. Your best option is to contact an Ohio attorney to obtain advice with respect to pregnancy or lactation discrimination questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm or any individual attorney.