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First court rules on FLSA/Obamacare nursing mothers requirement


By Patrick Ogilvy

In the first decision by a federal court of appeals concerning the provision of the Fair Labor Standards Act (FLSA), as amended by the Patient Protection and Affordable Care Act (popularly known as Obamacare), requiring employers to provide accommodations to nursing mothers to express breast milk, the U.S. Court of Appeals for the Eleventh Circuit found an employer provided proper accommodations and did not retaliate against an employee for requesting time and a place to express milk.

A place to express
An employee for a surety and bail bond company had a child and needed a place at work to express breast milk twice a day.  As a matter of regular policy, all employees for the company were free to take breaks as needed, breaks were not counted or timed, and the employee was never criticized for taking breaks.  She was also given a one-hour lunch break.  The employee admitted she received the necessary breaks to express breast milk.  

The company had several vacant offices available to the employee as private places for her to express breast milk, but she chose to do so in her own office, with folders taped to the window for privacy.  She did not inform the company she would be using her own office, nor did she ask for a different location.  On one occasion, before she was scheduled to work at a different office, the employee sent her supervisor an email stating:

I’m scheduled tomorrow all day at the bail office, so therefore, I need to know where I can use my breast pump at and who will cover the office while I’m doing it.  I’ll need to be able to do it at least twice while there.  Please let me know.  Thanks.

Other than this email, the employee never advised the surety and bail bond company of her need to express breast milk at work nor did she complain she was being denied the right to do so.  However, the employee then sued the surety and bail bond company for violation of the FLSA, claiming she was not given a time and place to express breast milk and was terminated for asking to do so.

No violation
First, the court found the employee presented no evidence she was denied the right to express breast milk in violation of the FLSA.  She had private places in which to do so, and never claimed using her own office, which she chose to do, was not adequate.  Second, the court found no evidence the employee ever complained she was not being given adequate accommodations for expressing breast milk.  The only email she sent was a simple request for a place to express breast milk and did not contain any indication she believed she was not being provided a proper place.  Before sending the email, she had not otherwise asked for, or been denied, a time or place to express breast milk.  The employee had adequate breaks and she chose to use her own office to express breast milk without informing her supervisors.  Although the employee claimed she had also sent a complaining email to a friend and the surety and bail bond company monitored her email, she never showed the email to anyone at the company or otherwise complained about a FLSA violation.  Therefore, the appellate court found the email to her friend would not have effectively notified the company of a grievance.

The result in this case is encouraging to employers because it indicates the obligation is on the employee to make an affirmative request for a time and place to express breast milk and absolves the employer of liability where the employee makes no attempt to do so.  While employers who become aware of employees using office space to express milk should certainly take steps to ensure the employee is being appropriately accommodated with sufficient time and a private place, the employer need not establish a designated place for expressing breast milk where no requests for accommodation have been made.  However, though this case would suggest no such obligation exists, best practices may dictate the employer should consider establishing a standard policy of accommodation for employees who have the need to express breast milk.

Read the case here.

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