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Nursing Mothers in the Workplace

The Break Time for Nursing Mothers law requires that employers with 50 or more employees provide nursing workers with breaks and a location to express milk at work. It also issues guidance on what it considers a reasonable place to do so, explicitly rejecting bathrooms.

Nursing mothers who suffer discrimination associated with nursing may also find redress from other federal and state laws that penalize sex discrimination, pregnancy discrimination, and associated harassment and retaliation. In addition, similar to other discrimination laws, there are specific anti-retaliation remedies that apply to violations of the Break Time for Nursing Mothers law.

UntitledThe 2015 New York case of Lico v. TD Bank is the first court decision grounded on the Break Time for Nursing Mothers law. It held an employer accountable for not providing appropriate breaks and accommodations as required by the lactation law. In this case, Lico, a nursing mother, argued that she requested accommodations from her employer to pump breast milk at work and her supervisor referred her to express milk in the bathroom or the safe deposit room, and he denied other requests for breaks to pump milk. As a result, she opted to breastfeed at home in the morning, during lunch, and in the early afternoon. When her employer fired her for absenteeism, she sued. The court ruled for Lico, awarding her lost wages and holding that violations of the law are privately enforceable in cases where women have lost wages as a result of the employer’s failure to comply.

Applicable federal, state and local law

Section 7(r) of the Fair Labor Standards Act (FLSA), Break Time for Nursing Mothers, was introduced by the Patient Protection and Affordable Care Act (PPACA) and enacted in 2010. The law specifically requires covered employers to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” Covered 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.” The Department of Labor Wage and Hour Division (WHD) is in charge of enforcing the law.

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employment practices that discriminate against any individual because of such individual’s sex, among other factors. The Pregnancy Discrimination Act (PDA) amended Title VII to also forbid employee discrimination based on pregnancy when it comes to any aspect of employment. Under the PDA, an employer (or covered entity under the PDA) must treat a female employee unable to perform her job due to a medical condition arising from pregnancy or childbirth in the same way as it treats any other temporarily disabled employee. The Equal Employment Opportunity Commission (EEOC) is the federal agency overseeing federal laws addressing pregnancy discrimination. (See the Employment Discrimination on the Basis of Pregnancy, Sex Discrimination in the Workplace, and Sexual Harassment in the Workplace blog articles for additional information.)

There is no Florida law counterpart to the federal Break Time for Nursing Mothers law. Although it provides for no workplace lactation rights, pregnancy accommodation, or pregnancy-related disability protections, Florida law provides that a mother “may breastfeed her baby in any location, public or private, where the mother is otherwise authorized to be, irrespective of whether the nipple of the mother’s breast is uncovered during or incidental to the breastfeeding.” However, this law does not impose a requirement on an employer to provide for time to pump or express milk in the workplace. This state law also lacks an enforcement provision.

For situations where a nursing mother may experience sex discrimination or discrimination on the basis of pregnancy, the Florida Civil Human Rights Act (FCRA) makes it illegal for an employer to discriminate on the basis of gender, among other factors. The Florida Supreme Court has ruled that FCRA’s ban on discrimination based on gender can also cover claims of pregnancy discrimination. (Delva v. The Continental Group, Inc., No. SC12-231, Fla. Apr. 14, 2014). For this type of discrimination, the statute covers employers with 15 or more employees. The Florida Commission on Human Relations (FCHR) is the state agency overseeing discrimination in Florida.

Local ordinances may also impose anti-discrimination requirements on employers within the locality. For example, the City of Orlando’s anti-discrimination ordinance applies to employers with 5 or more employees working more than 30 hours per week, or more than 10 employees, irrespective of the number of hours worked per week. It makes it illegal to discriminate against an individual based on pregnancy, childbirth, or related medical conditions, among other factors. The City of Orlando’s Human Relations Review Board is responsible for evaluating complaints.

Covered employers

The Break Time for Nursing Mothers law applies to employers with 50 or more employees. Employers with fewer than 50 employees may apply for an “undue hardship exemption” and must prove that complying would cause “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.” This exemption is challenging to obtain due to inexpensive solutions now available to nursing women to facilitate expressing milk in the workplace.

Covered employees – Frequency of Breaks – Compensation

The lactation law only covers employees who are “not exempt” from section 7 of the FLSA, which includes the FLSA’s overtime pay requirements. Covered employees may take as many breaks as needed. The law recognizes that the amount of time it takes to express breast milk is different for every mother. An acceptable practice is to allow 30 minutes, but this is not established as a limit.

Although breaks may be allowed as reasonably needed, workers may not be compensated for all the breaks taken. An employer is not required to compensate nursing mothers for breaks taken to express milk, except when the employer already provides compensated breaks to other employees. In this case, it must also compensate the employees who use their break to express milk.

Retaliation

The FLSA contains an anti-retaliation provision that penalizes any person who retaliates via discharge (or in any other manner) against an employee because he or she has (or intends to): file a complaint, instituted any proceeding under or related to the law, testified in any proceeding, or served in an industry committee.

Claim filing and potential remedies

If the employer refuses to comply with the law, the employee may file a complaint with the Wage and Hour Division (WHD) of the Department of Labor (DOL), or may file a private lawsuit.

The DOL first attempts to resolve most compliance issues administratively, but it may also litigate on behalf of a claimant. The WHD recognizes that a mother’s milk supply can quickly drop if she does not express milk regularly, so they will prioritize violations of the Break Time for Nursing Mothers law whenever possible. The DOL has the legal authority to seek the recovery of back wages and liquidated damages (payable to employees), and to assess civil money penalties (payable to the government), in instances of other violations.

It is important to note that employees suing under the lactation law can only receive lost wages. They cannot receive damages for claims of embarrassment, pain or discomfort caused by not being able to take a nursing break. This redress may be available through other laws, depending on the situation. However, in cases of retaliation, remedies may include, but are not limited to, employment reinstatement, lost wages, and an additional equal amount as liquidated damages.

Statute of Limitations

The FLSA has a two-year statute of limitations (three-years for willful violations). It is important that a complaint be filed as soon as possible to allow for a full investigation by the Department of Labor’s WHD as well as to optimize the time to file a lawsuit, if needed.

For additional information on processing and managing claims for other discrimination actions that may accompany a violation of the Break Time for Nursing Mothers law, see the Processing Claims with the EEOC and Processing Claims with the FCHR blog articles.

Employers and employees can benefit from consulting with an attorney to learn their rights and responsibilities under the Break Time for Nursing Mothers law. Employers must avoid becoming vulnerable to administrative, individual, or collective action by not having a company-wide lactation policy, and must know how to properly manage compliance and a defense for alleged violations. Nursing workers should understand their legal rights and learn how to request accommodations and respond to violations.

Whether you are an employer or employee, the Orlando employment law attorneys of Burruezo & Burruezo can assist you in assessing a lactation law compliance situation and offer legal representation, if necessary. Click here to contact an attorney now.

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