The U.S. Department of Labor (DOL) filed a lawsuit against a Texas employer in federal court after an investigation by the Wage and Hour Division of the DOL. The DOL found that the employer violated the nursing mother provision of the Federal Labor Standards Act (FLSA) when it denied the employee adequate time and space to express milk. The settlement was based upon the employer’s retaliation against the employee. The DOL argued that the employee’s resignation was a constructive discharge under the FLSA’s anti-retaliation provisions. This case has implications far beyond the world of nursing mothers.

As part of the settlement agreement, Allegiance Behavioral Health Center, which operates a counseling office in Texas, has agreed to pay $22,000 to a former employee who claimed that her employer made her working conditions intolerable when she complained that she had no suitable place to express breast milk. She was forced to pump while sitting in her car, in full view of the public and co-workers. Rather than continuing to tolerate to these conditions, she quit. Since these conditions were so intolerable that a reasonable person would have felt compelled to resign, the quit was considered a constructive discharge.

Employer Strikes Back as a Result of an Employee Complaint Violating FSLA Provisions

As many employees realize, life can get suddenly and precipitously worse for an employee who complains about working conditions. The employer’s reaction can become more severe when the complaint is made to outside enforcement agencies such as the Equal Employment Opportunity Commissions (EEOC) and the Texas Workforce Commission (TWC). Employee rights guaranteed by law are worthless if they cannot be enforced because people are afraid to speak. That is why the anti-retaliation provisions of the FLSA are so important.

Our Employment Lawyers Understand the FSLA and Texas Employment Laws and Can Help You Resolve an Employment Claim

If you believe you have experienced retaliation because you filed a complaint about your working conditions, overtime pay denial, or employee misclassification as an independent contractor, talk to an employment lawyer at Kilgore & Kilgore. Click the following link to learn more about our representation in employment retaliation cases. If you have questions about your rights under the federal FLSA statute or Texas employment laws, use this link to contact us through our website. Just click here Contact Kilgore & Kilgore, fill out the form on the website and send it in. We are happy to provide a free evaluation of the facts of your situation.

FLSA Protection Against Retaliation

Section 15 of the FLSA states that it is a violation for any person to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.”

The law protects complaints made to the Wage and Hour Division at the DOL and many types of internal complaints to an employer. The law also protects complaints made by employees to the TWC and the EEOC. In fact, when an employee takes the time to file official complaints with these public agencies, such documentation may support the employee’s case should the matter be argued in court.

But few employees know their basic employee rights. The first step in protecting employee rights under FLSA or Texas employment laws is to understand what they are. The employment lawyers at Kilgore & Kilgore can help you understand your employee rights under state and federal law and may be able to take action to file a lawsuit if necessary.

FLSA Protection for Nursing Moms

Since 2010, the FLSA has required employers to provide reasonable breaks for employees to express breast milk in a place that is shielded from view and free from intrusion by co-workers and the public. A bathroom stall is explicitly not a suitable accommodation.

Before then, conscientious working moms who wanted to take care of their babies in the best way while on the job by providing breast milk had to go to lengths that might involve:

• pumping in a bathroom stall;
• packing the milk container into a nondescript lunch bag
• putting the lunch bag in the breakroom refrigerator; and
• hoping that no one opened the wrong bag and compromised the breast milk.

Among mothers with children under age 3, the labor force participation rate of married mothers is roughly 60 percent and for unmarried mothers 67.2 percent. The law seeks to recognize this demographic. Practice, however, often lags behind.

Wider Guarantees for Employees Under FSLA

FLSA is about much more than protections for nursing mothers. First enacted in 1938, it protects a wide array of employment rights including wage rates and working conditions. The employment lawyers at Kilgore & Kilgore help clients protect their rights under these wage and hour laws. Several hot button issues seem to recur, as described below.

Employee misclassification as independent contractors. Only employees are protected by the FLSA and the provisions of Texas employment law. Employers who want flexible staffing options and low labor costs have plenty of motivation to hire independent contractors instead of employees. Sometimes, however, this employee misclassification is not warranted by the facts of the working relationship. Courts have developed tests for distinguishing between employees entitled to the protections of law, and contractors, who have protections only in the terms of their own contracts. The central issue, however, is the degree of control exerted by an employer. The most frequently litigated issues are minimum wage and overtime claims, although any or all the protections of law can be at issue. Examples of employee misclassification come up with, for example, drivers, sales representatives, and gig workers, among others. Kilgore & Kilgore employment attorneys represented employees in numerous such cases. If you believe that you and other coworkers have been misclassified and are owed overtime or other pay, please contact us.

Failure to pay for required breaks. Federal law guarantees paid break time in limited circumstances, including time for nursing mothers to express breast milk.

Undercounting of time. Sometimes described as “donning and doffing” lawsuits, for the time it takes employees who must wear protective gear to put it on and take it off, these lawsuits cover much more. Also, employers must count and pay for the relatively small amounts of time it takes employees to perform tasks that are necessary to their jobs, if not quite core functions. As with employee misclassification lawsuits, the litigated issues may actually appear as minimum wage and overtime underpayment.

Failure to pay minimum wage or overtime pay. Sometimes underpayment issues are more blatant, as when an employer hires employees who feel vulnerable and are unlikely to complain because of language barriers or immigration status. To be clear, the application of legal employment protections is not dependent on immigration status. These issues arise in the construction industry, home health care, and garment trades, as well as others.

Learn More about FSLA, Retaliation, Employee Misclassification, and Overtime Underpayment Lawsuits

If you have been denied your legal rights and then suffered from employer retaliation after making a complaint, if your paycheck was short, or you have learned that your overtime pay is the result of employee misclassification you may benefit from the experience and knowledge of the employment law attorneys at Kilgore & Kilgore. Contact us for a free review of the facts of your case by clicking here and sending us a contact request Contact Kilgore & Kilgore.