Employee May Pursue Claims Under FLSA For No Lactation Breaks

In Lico v. TD Bank et al., a federal court in the Eastern District of New York upheld an employee’s right to bring claims under the Fair Labor Standards Act (FLSA) against her employer, TD Bank (“the Bank”), for failure to provide adequate facilities and time for lactation breaks. The FLSA requires employers covered by the FLSA to provide employees (1) reasonable unpaid time at work to express breast milk for up to one year following childbirth and (2) a place, other than a restroom, that is not visible and is free from intrusion to do so.

Facts and Analysis

The plaintiff, Aida Lico, a bank teller and customer service representative, claimed that her employer, TD Bank, failed to provide her a time and place to perform lactation following her return from maternity leave. She also alleged that TD Bank terminated her employment for exercising her rights to take lactation breaks. The plaintiff filed a putative class action to represent herself and similarly-situated employees.

The Bank first offered the plaintiff the ability to take lactation breaks twice a day in the restroom. When the plaintiff objected to using the restroom, her manager offered her the mailroom to use. She also objected to the mailroom, and, in response, the manager offered her the safety deposit room to use. The plaintiff also claims she was not given ample time for lactation breaks and, therefore, took time out from her shift to do so. The Bank later terminated her employment for attendance deficiencies.

The Bank made a motion to dismiss the claims related to the lactation breaks – citing an Idaho Federal District Court decision – by arguing that the FLSA does not provide for a private cause of action deprivation of lactation breaks. The Court disagreed and denied the Bank’s motion to dismiss. As to the plaintiff’s potential damages, the Court ruled that the FLSA authorized the plaintiff to recover the wages she lost for having to nurse her child at home as well as liquidated damages (double damages) and attorneys’ fees, as authorized by the FLSA, but, could not recover damages for discomfort or embarrassment.

Practical Considerations

It is important for employers to provide in their written policies and to train managers on compliance with the FLSA provisions related to lactation breaks – just as an employer maintains policies and conducts training on wage and hour matters. Where an employee does not have her own private office, or the offices in which the employee works do not contain a separate place to conduct lactation, the employer should explore options that include both modifications to the facility and/or schedule changes that might accommodate the employee. It should also be noted that the FLSA permits an employer with less than 50 employees, when responding to a request for a space to conduct lactation, to claim “undue hardship” when the construction of a space is too difficult or significantly expensive. However, if an employer does not explore alternatives, or if it has financial means to modify its space to accommodate the employee but rejects the employee’s request for an adequate space, it could incur liability under the FLSA. Finally, employers should be aware that some courts have adopted the position advanced by the Equal Employment Opportunity Commission that terminating an employee because she is lactating or expressing milk constitutes pregnancy discrimination under federal law.

Gibbons Employment & Labor Law Department attorneys regularly advise on compliance with employment statutes, including the FLSA, and handle related litigation.

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