Expert Article by Jaime Maurer
On March 23, 2010, the Patient Protection and Affordable Care Act (PPACA) took effect. Among other things, the PPACA amended Section 7 of the Fair Labor Standards Act (FLSA) so as to require Employers to provide (i) “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 (ii) “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.” On December 26, 2012, the Court of Appeals for the Eleventh Circuit in Miller v. Roche Surety and Casualty Co., Inc. (Case No. 12-10259) addressed whether a female employee had a viable FLSA retaliation claim when she was terminated after sending an email to her supervisor asking about locations to express milk at work. More specifically, Danielle Miller sent an email to the president of the company, Shannon Roche, wherein she inquired as to a location where she could use her breast pump while she was working at the bail office (not her normal work location). The email read:
Shannon, I’m scheduled tomorrow all day at the bail office, so therefore, I need to know where I can use my breast pump at and who will cover the office while I’m doing it. I’ll need to be able to do it at least twice while there. Please let me know. Thanks.
Shortly after sending this email, Miller was terminated. Affirming judgment as a matter of law for Roche, the Eleventh Circuit held that the email sent by Miller could not reasonably be construed as an FLSA complaint so as to form the basis of a retaliation claim. More specifically, relying heavily on the Supreme Court’s decision in Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011), this Court noted:
Although the filing of a complaint under Section 215(a)(3) need not be in the form of an official complaint, or even be in writing, some degree of formality is required in order that the employer has fair notice that an employee is lodging a grievance. This “notice requirement” is essential because ‘an employer who does not (or should not) know an employee made a complaint could not discriminate because of that complaint.’ In keeping with this idea, the complaint must be sufficiently clear and detailed so that a reasonable employer, considering the context and content, can understand that an employee is asserting rights provided by the FLSA and calling for the protection of those rights.
Neither the context nor content of Miller’s email put Roche on notice that she was lodging a grievance. Indeed, the circumstances surrounding the email would not have informed a reasonable employer that Miller was filing a complaint. Before sending the email, Miller had never asked for, or been denied, a time or place to express breast milk. She was given breaks at her leisure without question or criticism….
As such, the Eleventh Circuit held that Miller’s email would not have put a reasonable employer on notice that a complaint had been filed and, therefore, could not form the basis of an FLSA retaliation claim, particularly when Miller exercised her rights under the FLSA prior to sending this email without reprisal.