As part of the passage of the Affordable Care Act, the Fair Labor Standards Act (FLSA) was amended in March of 2010 to require most employers to provide nonexempt employees nursing mothers a “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.”
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.”
As a result, nursing mothers have legal protections that allow them to express breast milk in the workplace. Employers must comply or face potential consequences which may include liability under Title VII of the Civil Rights Act of 1964 as demonstrated by a recent jury verdict in Delaware.
Autumn Lampkins, an assistant manager at a KFC franchise in Camden Delaware needed to express breast milk following the birth of her son. Lampkins’ employer initially required her to pump in the single-stall bathroom at the restaurant, but ultimately moved her and required her to pump in the manager’s office because she was tying up the restroom. The manager’s office was equipped with camera and not private because it was accessible to her coworkers who often came into the office while she was pumping.
Lampkins alleged that her supervisor only permitted her to pump once in her 10-hour shift, even though she requested pumping breaks every two hours. After Lampkins’ coworkers complained about her pumping breaks, Lampkins’ employer demoted her and transferred her to another store. Lampkins alleged that in the restaurant she was transferred to, she was forced to pump in an office with a camera and a window where other employees could observe her pumping. Lampkins then alleged that her supervisor cut her hours so that she could have more time to pump. She further alleged that her coworkers and her supervisor complained about her need to pump. Lampkins resigned after hearing that her employer was going to fire her because of an allegation that she had stolen a customer’s jacket.
Lampkins brought a lawsuit in the U.S. District court for the District of Delaware for gender discrimination and hostile work environment under Title VII as well as failure to provide accommodations and opportunities to express breast milk in violation of the FLSA. At trial, the jury found in favor of Lampkins awarding her $25,000.00 in compensatory damages and $1,500,000.00 in punitive damages.
Be prepared. Make plans now on how your company would meet the requirements. If you don’t have an employee who is a nursing mother now, it is likely you will in the future.
FSLA covered employers are required to:
- Make arrangements for a private location to pump preferably prior to the employee returning to work. The location cannot be a bathroom. The location must be functional as a space for expressing breast milk and must be available when needed for the nursing mother’s use to express breast milk. It must be shielded from view and free from any intrusion from co-workers and the public.
- Provide appropriate break time. Employers are required to provide a “reasonable “amount of break time to express milk as frequently by the nursing mother. The frequency of these breaks to express milk and the duration of each break will likely vary.
- It is important that you educate employees on the company’s commitment to complying with the law regarding lactation breaks, including the prohibition against retaliatory behavior when employees take lactation breaks. Remember, employers are required to provide these breaks to nursing mothers, it is not optional.
- Ensure supervisors are aware of not only the requirements but their responsibilities and nursing mothers’ rights.
While the FLSA sets minimum standards for pumping accommodations, states and municipalities can provide greater protections, and many have enacted laws covering lactation accommodations, including:
- California (and San Francisco)
- Washington D.C.
- New Jersey
- New York (and New York City)
- Rhode Island
- South Carolina
Employers in these states and municipalities should educate themselves on their additional responsibilities in order to be compliant with all laws affecting them.