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.