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In August 2012, we wrote that the U.S. District Court for the Northern District of Iowa held that there is no private cause of action to enforce the breast feeding provision of the Fair Labor Standards Act (“FLSA) in Salz v. Casey’s Manufacturing Co.  That may no longer be true.  Recently, the Honorable Joseph F. Bianco for the United States District Court for the Eastern District of New York held that there is in fact a private right of action in Lico v. TD Bank, et. al.

The FLSA, section 207( r ), requires that employers provide:

1. 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 a need to express breast milk; and

2. A place, other than a bathroom that is shielded from view and free from coworkers and the public, which may be used by an employee to express breast milk.

In Lico, the plaintiff, Aido Lico, is a former bank teller and customer service representative at TD Bank.  She alleges that TD Bank failed to provide her with an adequate space to express breast milk and did not permit her to take necessary lactation breaks during her work day.

TD Bank and its co-defendants filed a motion to dismiss arguing in part that §207(r) is not privately enforceable in light of the holding in Salz v. Casey’s Manufacturing Co.  New York federal Judge Bianco disagreed.  He found that Salz did not apply because in that cause, the plaintiff did not claim any lost wages. However, in Lico, Ms. Lico alleges that she missed time at work because she had to travel home in order to express milk.  Judge Bianco noted that this is the type of lost wages specifically recoverable pursuant to 29 U.S.C. § 216(b), the FLSA remedies provision. Therefore, Ms. Lico stated a plausible claim of compensable damages pursuant to §216(b) and could pursue a private right of action.  Which Judge is right; only time will tell.

To protect themselves, employers should include a written policy regarding lactation breaks and provide training to managers on compliance with these FLSA breast feeding provisions.  When an employee does not have her own private office, or when the location in which the employee works does not contain a separate place to conduct lactation, the employer should consider altering the facility or schedule changes to accommodate the employee.

However, it should also be noted that many states and localities, including Connecticut and New York City, have state and local laws requiring reasonable accommodations for pregnant and postpartum employees. Additionally, some courts have adopted the position, as well as the EEOC, that terminating an employee because she is lactating or expressing milk constitutes pregnancy discrimination under federal law.  Therefore, be sure your policy complies with all these laws, if they apply to your operation.

Brody & Associates regularly advises management on complying with local, state, and federal employment laws including discrimination laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.