Issue: June 2019

Recent Trends in Lactation Accommodation Laws

By: Yoojin DeNiro*

Introduction

A Delaware jury recently awarded over $1.5 million to an ex-KFC worker with a newborn son. Her claim? That her supervisors discriminated against her for pumping breast milk at work and created a hostile work environment so severe that her milk supply dried up. The jury ultimately awarded the mother $1.5 million in punitive damages for sex discrimination and harassment. The jury verdict is in line with the recent trend among states and municipalities expanding lactation accommodation protections for employees. Below is a summary of some of these laws.

Federal Threshold: FLSA Break Time and Location Requirement

In 2010, Congress amended Section 7 of the Fair Labor Standards Act (FLSA) to require employers with 50 or more employees to provide: (1) a “reasonable break time” to pump breast milk at work; and (2) a private place, other than a bathroom, where employees can pump free from intrusion of co-workers and the public. Known as the “Break Time for Nursing Mothers” law, these requirements apply only to non-exempt employees (i.e., hourly employees eligible for minimum wages and overtime pay under the FLSA) and for up to one year following the birth of the employee’s child. Employers do not have to compensate the employee for nursing breaks.

The U.S. Department of Labor (DOL) later issued further guidance that same year on the frequency and compensation of lactation breaks. While it did not define what a “reasonable” break time was, it explained that employers must provide a reasonable amount of break time to pump milk “as frequently as needed by the nursing mother.” Additionally, employers do not have to pay nursing employees for these breaks unless the employer pays for other kinds of breaks and an employee uses that break time to pump milk.

According to the DOL’s guidance, the federal break time and location requirements do not preempt state laws that provide greater protections to employees. So states are free to adopt more protective laws that, for instance, provide paid break time, break time for all employees (not just non-exempt ones), or break time for more than one year after the child’s birth.

States and Municipalities Expand Employers’ Obligations

Fast forward to 2019: currently 29 states have adopted lactation laws similar to the federal requirement. What is noteworthy is that states and even municipalities are increasingly expanding employers’ obligations to accommodate nursing employees.

New Jersey is among the most recent states to pass such a law. Effective January 8, 2019, New Jersey employers of all sizes must provide a reasonable break time and a suitable room for nursing employees to pump breast milk. New Jersey has also added breastfeeding as a protected category under its anti-discrimination law and expressly prohibits discrimination and retaliation against employees who pump breast milk in the workplace.

Other states have adopted additional requirements: Massachusetts, for instance, has imposed notice requirements on employers. As of April 1, 2018, employers must provide written notice to all new hires of their right to reasonable lactation accommodation in a handbook or pamphlet. Employers must also give notice to employees who notify them of a pregnancy or related condition within ten days.

NYC Lactation Accommodation Law

Some local lactation accommodation requirements are even more exacting and stringent. New York City’s lactation accommodation law is a good example. Effective March 18, 2019, New York City employers must: (1) provide a private lactation room to nursing employees, and (2) implement a written lactation room policy that must be distributed to all employees upon hire. While employers were previously required only to make “reasonable efforts” to provide a private location to pump breast milk, the new law imposes an affirmative obligation on employers to provide a lactation room to accommodate nursing employees.

To comply with the new law, employers must now provide a lactation room that is a sanitary place—other than a bathroom—shielded from view and free from intrusion. The room must have nearby access to running water and include an electrical outlet, a chair, and a surface to place a breast pump and other personal items. Employers must also provide a refrigerator suitable for storing breast milk, and both the refrigerator and the lactation room must be reasonably close to the nursing employee’s work area. New York City employers must also have a written lactation room policy that includes a statement that employees have a right to request a lactation room.

“Failure to Accommodate” as Discrimination

Notably, the only remedies available for violation of the FLSA lactation accommodation requirement are unpaid minimum wages and unpaid overtime pay, which do not cover any lost wages. Since the law does not require employers to pay for nursing breaks, some may think there is no meaningful way for an employee to recover when the employer violates the FLSA lactation accommodation requirement. But the recent case against KFC (Lampkins v. Mitra QSR, LLC, No. 16-647 (D. Del. Nov. 28, 2018)) illustrates that employers who do not properly comply with the FLSA requirement could still face stiff penalties under other statutes, such as Title VII of the Civil Rights Act.

Autumn Lampkins was a manager-trainee and a new mom working at the fourth largest KFC franchisee in the country. When Ms. Lampkins requested to pump breast milk during work, her supervisors initially made her pump in the bathroom. They then made Ms. Lampkins pump in a non-private office with a surveillance camera that could not be turned off and a window that coworkers could—and actually did—see through while she pumped. Several times while she pumped, a male employee entered the office using his keys. In addition, Ms. Lampkins was only allowed to pump once during her ten-hour shift, even though she was supposed to pump every two hours.

When Ms. Lampkins’ co-workers complained that Ms. Lampkins was taking breaks from work to pump, she was demoted to a lesser paying position and transferred to another location where she worked fewer hours. At the new location, Ms. Lampkins again had to pump in a non-private office with a camera and a window. Because her supervisors denied her adequate breaks or provided limited breaks to pump, Ms. Lampkins’ breast milk eventually dried up, preventing her from breastfeeding her son.

On motion for summary judgment, the court ruled that all of these facts were relevant to support Ms. Lampkins’ sex discrimination claim under Title VII, namely that she suffered a hostile work environment because of her sex and was constructively discharged because her working conditions were so intolerable that she was compelled to resign. As for her FLSA claim that she was entitled to lost wages, attorneys’ fees, and costs, however, the court ruled in the employer’s favor, finding that the statute affords only unpaid minimum or overtime wages, not lost wages. After trial, the jury ultimately awarded Ms. Lampkins $25,000 in compensatory damages and $1.5 million in punitive damages, finding that Ms. Lampkins’ demotion, transfer, and pay cut were all tied to her status as a nursing employee.

Conclusion

Although litigation in this area is still rare, a $1.5 million jury award shows that failure to comply with lactation accommodation laws can result in large damage awards to the employee. Accordingly, businesses should give careful consideration to lactation accommodation requests and be sensitive to nursing employees with lactation accommodation needs.

*Yoojin DeNiro is a labor & employment counsel at Advance Publications, a media company whose subsidiaries include Condé Nast (whose portfolio of brands include Vogue, Vanity Fair, GQ, and The New Yorker), among others. The opinions expressed are those of the author and do not necessarily reflect the views of the company, its clients, or any of its or their respective affiliates.