Health Reform Also Amended the FLSA
The FLSA is the federal law which establishes minimum wage and overtime requirements. The FLSA now is amended to require an employer to provide (1) a reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk; and (2) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.
Under this amendment, an employer is not required to compensate an employee for any time spent for such purpose. Additionally, an employer that employs fewer than 50 employees is exempt if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer’s business.
The amendment does not specify how long a “reasonable break time” is. The United States Department of Labor, which administers and enforces the FLSA, has not yet announced whether it intends to issue regulations addressing this and related issues, such as clarification of how an “undue hardship” exempting smaller employers is established, and whether employers are required to provide refrigeration.
This new provision requiring break time for nursing mothers is in a section of the FLSA which may be enforced either by complaining to the United States Department of Labor, or by private litigants filing suit in federal or state courts.
Another amendment to the FLSA protects employees reporting or otherwise opposing violations of the healthcare reform law. That amendment prohibits an employer from discharging or otherwise discriminating against an employee who:
(1) has received a premium tax credit or subsidy for a qualified health plan;
(2) provided information or is about to provide information to the employer, the federal government or the state attorney general about any violation of significant portions of the PPACA;
(3) testified or is about to testify in a proceeding concerning such a violation;
(4) has otherwise participated or is about to assist or participate in such a proceeding; or
(5) has objected to, or refused to participate in, any activity, policy, practice or task that the employee reasonably believes to be such a violation.
This amendment adopts the complaint procedures of the already existing whistleblower protection provision of the federal Consumer Product Safety Improvement Act. Under that existing provision, an employee who believes that he or she has been retaliated against may file a complaint with the United States Department of Labor.
The employee may also file suit in federal court within 90 days after receiving a written determination or if the Department of Labor has not issued a final decision within 210 days of the filing.
Some claims under this amendment would already be protected under the Michigan Whistleblowers’ Protection Act. Nonetheless, rights under this amendment are in some ways more expansive. For example, under the amendment, unlike the Michigan Act, alleged violations reported to the employer are protected.Moreover, the amendment places a high burden of proof on the employer, by “clear and convincing evidence,” that it would have taken the same unfavorable personnel action in the absence of the protected activity.
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Brandon Zuk is chairperson of the labor and employment law department of Fraser Trebilcock Davis & Dunlap, PC. Samantha A. Kopacz is an attorney with Fraser Trebilcock Davis & Dunlap, PC, and specializes in employment law, employee benefits and healthcare law. Kopacz can be reached at email@example.com and Zuk can be reached at firstname.lastname@example.org.