Section 7 of the Fair Labor Standards Act (“FLSA”) was amended by the Affordable Care Act to require employers to provide 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 the need to express the milk. This requirement became effective when the Affordable Care Act was signed into law on March 23, 2010.

Under this amendment employers are required to provide a place, other than a bathroom, that is both (1) shielded from the view and (2) free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.  Employers and employees can access the The Wage and Hour Fact Sheet #73 “Break Time for Nursing Mothers under the FLSA” to become familiar with basic information about the law.

The FLSA prohibits employers from discharging or discriminating against any employee because he or she has filed a complaint.  29 U.S.C. § 215(a)(3).  To establish a retaliation claim under the FLSA, an employee must show that (1) she engaged in statutorily protected activity; (2) she suffered adverse action by her employer; and (3) the adverse action occurred as a consequence of her protected activity.

The 11th Circuit was the first appellate court to interpret these new provisions.  In Miller v. Roche Surety & Cas. Co., Inc., No. 12-10259 (11th Cir. Dec. 26, 2012) the 11th Circuit held that an employee’s claim failed as a matter of law because her employer provided her with the necessary breaks and a private space in which to express breast milk.  The court also held that the employer did not retaliate against the employee for filing a complaint under the FLSA since the employee’s e-mail requesting a time and place to express breast milk did not constitute a complaint.  The court found that the circumstances surrounding the employee’s e-mail, would not have informed Roche that Miller was filing a complaint under the FLSA.

This decision offers some direction about these new FLSA provisions.  It informs us that employers must not only develop solutions that comply with these new FLSA, but should also review their current policies to ensure compliance.