Reasonable Accommodation Offered to Breastfeeding Mother, Court Says

A female employee in need of a place to lactate met with resistance and strict company policy.

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Angela Ames vs Nationwide Mutual Insurance

Angela Ames, a former employee of Nationwide Mutual Insurance, was hired as a loss-mitigation specialist in October 2008. Ames gave birth to her second child in May 2010.

Before returning to work, Ames spoke with a company case manager and asked where she could express breast milk. She was informed she could use a designated lactation room, one of which was accessible on every floor.

When she returned to work and needed to use a lactation room, she was met with resistance. The company nurse informed Ames of Nationwide’s lactation policy, which gave badge access to the lactation rooms once an employee completed paperwork that had a three-day processing period. This policy was available to all employees on the company intranet, yet no one–not even the disability case manager–mentioned this policy to Ames.

When Ames mentioned that she needed a room immediately, the nurse asked the security desk to give Ames access ‘as soon as possible,’ then suggested she use a Wellness Room typically used by sick employees, but stated there wasn’t a functioning lock on the door and that she may expose her milk to illness. The room was occupied, so Ames was instructed to come back later.

While waiting for the wellness room, she met with her supervisor and was informed that none of her work had been done while she was on leave, and that she would be given only two weeks to catch up on eight weeks’ worth of work–requiring many hours of overtime–or be disciplined. Ames approached her department head for assistance. Noticing that Ames was upset, the supervisor handed Ames a piece of paper and a pen stating, “I think its best that you just go home and be with your babies” then dictated her resignation letter.

Ames filed suit against Nationwide on the basis of sex- and pregnancy-discrimination in violation of Title VII of the Civil Rights Act of 1964.

Courts Decided Employee ‘Jumped To Conclusions’

A lower court dismissed Ames’ case deciding that she could have sought other internal complaint procedures about her discriminatory treatment before writing her resignation letter and did not. They also found that the comment ‘go home and be with your babies’ was gender neutral because both genders can be parents.

On appeal, the Supreme Court upheld the lower courts judgment saying that she did not meet the ‘burden of proof’ needed to proceed with a claim of sex- or pregnancy-discrimination. The court found Nationwide made several attempts to accommodate Ames by suggesting temporary solutions. Even though these solutions may not have been immediately available or ideal, Ames resigned before Nationwide could thoroughly address her requests for accommodation. Additionally, the court cites that Ames should not have assumed the worst by thinking the interim solutions would not work and her only option was to resign.

Reasonable Accommodation Tips for Lactating Employees

Know your rights under the law. Ensure you are aware of any company policies around maternity leave and lactation accommodations.

Title VII of the Civil Rights Act of 1964

Title VII is a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. It generally applies to employers with 15 or more employees, including federal, state, and local governments.

Pregnancy Discrimination Act

The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964. This amendment states that women “affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees who are similar in their ability or inability to work.”

Under the PDA:

“If an employee is temporarily unable to perform her job because of her pregnancy, the employer must treat her the same as any other temporarily disabled employee. For example, if the employer allows temporarily disabled employees to modify tasks, perform alternative assignments, or take disability leave or leave without pay, the employer also must allow an employee who is temporarily disabled because of pregnancy to do the same.”

Fair Labor Standards Act (FLSA) – Section 7

This amendment to Section 7 of the FLSA, requires 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 need to express the milk. Employers are also required to provide 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.

What is Reasonable Accommodation?

Reasonable accommodation as defined by the U.S. Department of Justice is “any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions.”

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Hospitality, Retailers Voluntarily Increase Minimum Wage

Companies like Florida-based Westgate Resorts are voluntarily increasing their minimum wages ahead of a proposed $10.10 per hour federal government minimum wage.

Westgate announced that new employees earning less than $10 an hour will be receiving an increase up to that amount starting on January 1, 2015. CEO David Siegel said that it’s using the raise to “keep dedicated employees and to attract more hospitality workers.”

The company reports that approximately 1,000 employees working in hospitality and maintenance positions in Orlando will be eligible for the new minimum wage as will “several thousand” more throughout the nation.

Retailers More Likely to Raise Minimum Wage Voluntarily

Workers in the hospitality industry, like those at Westgate Resorts, are traditionally among the highest proportion of workers (19 percent) with hourly wages at or below the federal minimum wage according to the Bureau of Labor Statistics. However, the retail industry appears to be leading the charge when it comes to voluntarily paying a higher minimum wage:

Company Wage Industry (NAICS Category)
QuickTrip $19.23 Retail Convenience Stores
Zappos (Owned by Amazon) $16.00 Retail Electronic Shopping
Ben & Jerry’s $15.97 Food Services
C1 Bank $14.00 Finance and Insurance
Trader Joe’s $13.29 Retail Grocery Store
Costco $11.50 Retail Warehouse Club
Whole Foods $11.00 Retail Grocery Store
Recreational Equipment, Inc. (REI) $10.94 Retail Sporting Goods Store
Ikea $10.76 Retail Furniture Stores
Aldi $10.50 Retail Grocery Store
In-N-Out $10.50 Food Services
Gap $10.00 Retail Clothing Store
Westgate Resorts $10.00 Traveler Accommodation

Why Do Companies Pay More Than the Minimum Wage?

Gap spokeswoman Paula Conhain said of the minimum wage increase “It’s good for business, it’s helping the store attract and retain the best talent in retail, which is a real competitive advantage for us.”

Rob Olson, Ikea’s United States CEO and acting president, says “This stems back to Ikea’s decision to create a better everyday life for our people.” Ikea will base its minimum wage pay for each city in which the store is located by using the MIT Living Wage Calculator which takes housing, food, transportation and taxes into account.

Federal Minimum Wage Requirement

Under the Fair Labor Standards Act (FLSA), the federal minimum wage is $7.25 per hour. Several states also have their own minimum wage laws. In states where an employee is exposed to both state and federal minimum wage laws, the employee is allowed the higher minimum wage of the two.

Economists and business owners alike are noting that a rise in the federal minimum wage would be beneficial. They claim that it is good for business and the economy.

Companies that raise their wages are finding that they are attracting better applicants and retaining dedicated staff, while helping increase overall employment levels. In fact, research performed by economists at Goldman Sachs concluded that employment growth was higher in states where the minimum wage went up.

For more information on Minimum Wage, please see our other posts.

Unpaid Time in Security Checkpoint at Amazon Warehouse

The U.S. Supreme Court will determine whether off-duty employees should be paid for time spent waiting to pass through company security checkpoints.

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UPDATE: The Supreme Court decided that the employer does not have to pay workers for the time spent in security screening.

A former temporary worker at an Amazon warehouse in Las Vegas has become the poster child for the class action suit seeking back wages unpaid time. The worker, Jesse Busk, said that after completing 12-hour shifts, he and other workers waited upwards of 25 minutes – unpaid time – to pass through security screening meant to make sure they hadn’t stolen anything while on duty. Workers also lost at least 10 minutes of their half-hour lunch periods going through the screening process before they could enter the cafeteria.

The temporary agency Busk worked for, Integrity Staffing Solutions, did not pay the workers for the time spent waiting, even though it was required as a condition of employment.

What is a Compensable Workday?

In the case of Integrity Staffing Solutions, Inc. v. Busk, the Supreme Court will determine whether the time workers spend waiting at anti-theft checkpoints are part of a compensable workday. Busk’s case hinges on the argument that the anti-theft screening process was an “integral and indispensable” part of the warehouse employees’ workday that is meant to serve the benefit of the employer, not the employees.

Previously the U.S. Courts for the Ninth Circuit determined that Integrity Staffing Solutions, Inc. must compensate employees for time spent in security screenings conducted after their work shift. The workers, the court found, sufficiently alleged that the security screen process was “integral and indispensable” to their principal activities, and therefore is part of the compensable workday.

In other words, the circuit court ruled that the workers should be paid for their waiting time.

Now the Supreme Court will need to add clear direction around certain sections of the FLSA that seemingly compete with one another. For example, § 785.16 generally defines off duty as “periods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes.” Waiting in line at a security checkpoint before being free to leave the employment location may not qualify as being off duty. However under the “Portal-to-Portal Act” (29 U.S. Code § 254), workers are not entitled to compensation for time spent:

“(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and

(2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.”

Additionally, the FLSA notes that any time spent by employees “changing clothes or washing at the beginning or end of each workday” is excluded from paid time.

Why Do Companies Force Some Employees Through Security Checkpoints?

According to a brief filed in the case by the Retail Litigation Center, employees steal $16 billion in cash and goods from their workplaces each year in the retail industry alone. They argue that paying for screening would put an undue cost burden on employers that would force them to stop screening and thereby suffer further losses inflicted by thieving employees.

Federal Judge Rules U.S. Government Violated FLSA

Nobody’s perfect. Not even the federal government. Chief Judge Patricia Campbell-Smith ruled that the U.S. government violated the Fair Labor Standards Act (FLSA) when it did not pay federal employees who were required to report to work during the 16-day government shutdown last October.

“The FLSA requires—and the Supreme Court has recognized approvingly—that an employee receive on time payment for work performed. The court understands such timeliness to mean that an employer pays an employee on the regularly scheduled payday. It is the view of the court that the government’s payment to employees two weeks later than the scheduled paydays for work performed during the October 2013 budget impasse constituted an FLSA violation.”

The lawsuit filed with the United States Court of Federal Claims (Martin et al. v. United States of America, case number 1:13-cv-00834) alleges the employees worked without receiving regular pay until after the shutdown ended, which left many unable to pay bills and medical expenses.

The judge did not say whether the government owes damages to these employees, but rather that determination would be decided in another judgment or trial. The government will need to prove that it had ‘reasonable grounds’ for delaying the workers pay.

Anti Deficiency Act

The Anti Deficiency Act restricts payment for employees when congressionally allotted funds are not available. The Justice Department defends delaying the pay of federal workers stating that they acted within the law and any financial hardships incurred during this time by the employees were a result of ‘poor financial management decisions.’

Heidi Burakiewicz, a partner in the law firm representing the plaintiffs said this ruling is the ‘first step’ of providing relief to her clients.

“All federal employees – especially those being paid low wages – should get the compensation they need to help make up for hardships caused by the government’s own dysfunction and outright violation of the law.”

What Happens Next?

The Justice Department has until September 2 to dispute the plaintiffs’ claims and prove that they are not obligated to provide financial reimbursement.


New Breastfeeding in the Workplace Law for Hawaii

Hawaii Employers: Are you still compliant with the new labor laws?

Hawaii recently passed an amendment to the Employment Practices Law pertaining to workplace accommodation for breastfeeding.

Under this legislation, employers are required to provide reasonable time for breastfeeding employees as needed for up to one year after childbirth. Employers are also mandated to provide the employee with a private location (other than a restroom) that is shielded from view and free from intrusion from coworkers and the public for breastfeeding purposes.

Employers with fewer than 20 employees are exempt if that employer can show that the law would impose a significant expense or difficulty to their business.

A mandatory Breastfeeding in the Workplace poster is included with this law to explain the changes and notify employees.

Failure to comply with posting or enforcing the law results in a minimum $500 fine for each violation.

Hawaii’s state law takes precedence over the national Fair Labor Standards Act (FLSA) as it offers greater protection to employees. You can read more about the FLSA here.

GovDocs offers this new Breastfeeding in the Workplace posting as part of our Hawaii All-On-One poster. To make sure you never miss out on mandatory state or federal labor law changes, join our Update Program and stay compliant!

For more information about the Hawaii Breastfeeding in the Workplace Act, Click here.

Do Domestic Workers Have Employee Rights?

Domestic workers perform a variety of household services, including childcare, cooking, housekeeping, gardening, and even healthcare services for the aged and infirm. Rights for domestic workers vary wildly for the estimated 52.6 million domestic workers around the world. According to the International Labour Organization, only ten percent of all domestic workers are protected by legislated employee rights.

Worldwide, 83 per cent of domestic workers are women.

In the United States, some domestic workers are protected under the Federal Labor Standards Act. Congress extended FLSA coverage to domestic service workers in 1974, amending the law to apply to employees performing services of a household nature in or about a private home.

Which Domestic Workers are Covered by the FLSA?

  • Persons employed in domestic service in households are covered by the FLSA.
  • Nurses, certified nurse aides, home health care aides, and other individuals providing home health care services fall within the term “domestic service employment.”
  • Companions to the elderly who spend more than 20 percent of their time performing general household work.
  • Nannies who care for minor children, where the children are not physically or mentally infirm.

U.S. Home Healthcare Workers in the Spotlight

Recent legislation has focused on improving conditions for workers specifically employed in home healthcare. Healthcare workers who provide home health care services may be eligible for minimum wage and/or overtime premium pay depending upon the type of services they provide. For example, employees providing “companionship services” are not eligible for minimum wage or overtime pay.

Different Rights in Different States

New York enacted the Domestic Workers Bill of Rights in November of 2010. That Act contains more protections to domestic workers than the FLSA, including clarifications regarding rest periods and provisions for domestic workers who suffer sexual or racial harassment.

In California, however, Governor Jerry Brown vetoed similar legislation in October 2012. With 200,000 domestic workers in California, workers are considered especially vulnerable to inequitable treatment, because they are a largely immigrant and female work force.


Submitted by Chaunce Stanton

International Workers Day Born in Blood, Terror, and Bombs

Even scarier than an NLRB posting to employers of the nineteenth century.

Even scarier than an NLRB posting to employers of the nineteenth century.

May Day had long been celebrated throughout Europe in worship of spring and of new beginnings. Now, May Day signals a rally cry for international workers. It is a day steeped in blood, terror, and bombs.

How did a so-called “pagan fertility holiday” become linked to one of the most violent and controversial events in U.S. labor history?

It’s all about the Haymarket Massacre.

It began in Chicago, as things often do, when striking workers agitating for an eight-hour workday were confronted by police in May 1886.

A bomb exploded, cruder and smaller than the pressure-cookers used in the recent Boston Marathon bombing, but eerily reminiscent. It killed police officer Mathias Degan instantly and critically injured six other officers ,who later died from their wounds.

Chicago police opened fire from the center of the crowd, killing and wounding four strikers and injuring more than 70 others.

The aftermath of the Haymarket Massacre travels two paths.

On the one path, workers around the world mark the day to remember that workers’ rights have been hard-fought and hard-won.

The other path, however, launched a crackdown on U.S. on workers’ groups and suspected socialist agitators. Homes were searched without warrants. The terror Americans felt came from the anarchists, Germans, and Bohemians. The New York Times ran an article entitled “Anarchy’s Red Hand” in which it described the workers as being “led by two wiry, whiskered foreigners.”

Bearded foreigners. Bombs going off in public places.

This is a big story that we shouldn’t forget. It scarred labor-employer relations for decades.

No bomber was ever brought to trial, and that person’s identity is still a point for discussion for history buffs. More people died, however, just the same. The death of police officers was intolerable, so the newspapers and courts determined more men must pay with their lives.

Four defendants…were taken to the gallows in white robes and hoods. They sang the Marseillaise, then the anthem of the international revolutionary movement. Family members …who attempted to see them for the last time, were arrested and searched for bombs (none were found). According to witnesses, in the moments before the men were hanged, August Spies shouted, “The time will come when our silence will be more powerful than the voices you strangle today!” Witnesses reported that the condemned men did not die immediately when they dropped, but strangled to death slowly, a sight which left the spectators visibly shaken.

After the executions, many members of the international community were angered. They condemned the trials and executions as a reactionary move meant to calm the public – not meant to mete out justice.

The Second International declared May 1 as International Workers Day in 1889 to help continue labor’s quest for an eight-hour work day – eventually realized by American workers in 1937 as part of the Fair Labor Standards Act.