This post was authored by Lisa S. Charbonneau.

A recent jury decision from the federal trial court in Arizona shows how expensive it can be to ignore a federal law that requires employers to provide mothers with nursing children accommodations to express breast milk.

In 2010, Congress added section 7(r) to the Fair Labor Standards Act (FLSA) to require that employers provide break time for nursing mothers to express breast milk.  This amendment  requires 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 the need to express the milk.”  In addition, employers must 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 breaks need not be paid.  However, if an employer provides paid rest breaks and an employee uses that time to express breast milk, the employee must be compensated for that break time.  The Department of Labor fact sheet on this law can be found here.

Although this FLSA provision may not be well known, a recent $3.8 million dollar jury verdict against the City of Tucson underscores the importance of ensuring compliance with the FLSA’s nursing break requirements.  In that case, Clark v. City of Tucson, paramedic Carrie Clark alleged that, after her first child was born, she was assigned to fire stations that lacked adequate space for her to express milk in violation of the FLSA, which was discrimination in violation of Title VII of the 1964 Civil Rights Act.  In addition, Clark alleged that, after she raised the issue, she was retaliated against in violation of  FLSA.  On April 12, 2019, the jury found in favor of Clark on all counts, including that she was discriminated against on the basis of pregnancy or pregnancy-related condition (breastfeeding) when she was assigned to fire stations that did not have FLSA-compliant space to express breast milk.  The jury even awarded her $50,000 in compensatory damages for the City’s failure to provide her with FLSA-compliant space to express breast milk.  (Since a plaintiff’s damages under section 7(r) are limited to lost wages, this award may well be reduced if not eliminated altogether on appeal or other post-trial review.)  As for the FLSA retaliation claim, the jury found that Clark was retaliated against after she opposed the City’s failure to provide a space for her to express breast milk and awarded her $1,850,000 due to the retaliation, which included requiring her to take leave to avoid having to express breast milk in locations without appropriate nursing rooms and counseling her for “not being in harmony with others.”  More about the facts of the case and the parties’ allegations can be found here.

The lesson here is clear: employers must ensure compliance with all applicable laws when it comes to the rights of mothers to express breast milk, even laws buried in the FLSA.  Failure to do is illegal and may be extremely costly.

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Photo of Lisa S. Charbonneau Lisa S. Charbonneau

Lisa represents public agencies throughout the state as a negotiator, litigator, and trusted advisor in all matters pertaining to labor and employment law.  She has extensive experience in Fair Labor Standards Act (FLSA) and wage and hour compliance, labor relations, collective bargaining, MOU…

Lisa represents public agencies throughout the state as a negotiator, litigator, and trusted advisor in all matters pertaining to labor and employment law.  She has extensive experience in Fair Labor Standards Act (FLSA) and wage and hour compliance, labor relations, collective bargaining, MOU audits, PERB practice, and public employee disciplinary matters.  She also represents independent schools and non-profits in wage and hour matters.

Lisa has served as lead negotiator for small and large public agencies in labor negotiations with public safety unions and numerous other employee associations and organizations, including Teamsters, SEIU, AFSCME, police/deputy sheriffs associations, and the International Association of Firefighters.  Lisa takes a hands-on approach to bargaining and strives to be highly responsive to the unique needs of each client and their governing body.

Lisa also has an extensive litigation background in federal and state court, and has achieved successful results for clients in matters ranging from wage and hour to First Amendment retaliation.  As one of the firm’s FLSA litigators, Lisa has represented numerous cities, counties, and special districts in FLSA collective actions throughout the state.  She has also represented clients in arbitrations and fact-finding hearings, as well as before the Public Employee Relations Board, the California Labor Commissioner, the U.S. Department of Labor, the California Department of Fair Employment and Housing, and the Equal Employment Opportunity Commission.

A significant part of Lisa’s practice involves counseling clients on the meet and confer process and FLSA issues.  She also conducts FLSA audits for clients, which range in scope from reviewing employer compliance with discrete wage and hour laws to assisting with payroll system upgrades and modifications to achieve compliance with wage and hour laws.  Her practice also includes training on such subjects as ethics, discrimination and harassment, FLSA compliance, the collective bargaining process, and the Brown Act.

Lisa serves on the Executive Committee of the firm’s Wage and Hour Practice Group and has taught LCW’s FLSA Academy since its inception.

Lisa received her JD from U.C. Hastings College of the Law in 2006 and was admitted to the California State Bar in December of that year.  While at Hastings, Lisa served as an Equal Justice America fellow and received a grant to work on community economic development issues for the City of Detroit.  Lisa earned her Bachelor of Arts with Honors in Government from Wesleyan University in Middletown, Connecticut, and soon after that worked at a bi-weekly political magazine in Washington, D.C. until she began to pursue her law degree.