Employer Wins Challenge to Federal Nursing Mother Statute But Interesting Notice Issues are Raised

By Rudman Winchell Attorney

By Anne-Marie L. Storey

Under the Fair Labor Standards Act, an employer must provide a reasonable break time and a private place, other than a bathroom, for a covered employee to express breast milk. 29 U.S.C. § 207(r)(1).  Maine has a similar state law which states that an employer shall provide an employee with “adequate unpaid break time or permit an employee to use paid break time or meal time each day to express breast milk for her nursing child for up to 3 years following childbirth.”  It further states that “the employer shall make reasonable efforts to provide a clean room or other location, other than a bathroom, where an employee may express breast milk in privacy. An employer may not discriminate in any way against an employee who chooses to express breast milk in the workplace.”

A decision interpreting the federal version was issued in late December.  In the case, an employee was provided with breaks to allow her time to express breast milk.   She took the breaks in her office by her own choice; she did not ask for a different space to do this.    The time she took for these breaks was not recorded or counted against her and she was permitted to take her full one-hour lunch break regardless of the nursing break time.    On one occasion when she was scheduled to work outside of the office, she emailed her employer saying that she needed to know where she could use the breast pump and who would provide coverage for her while she did so. She was terminated shortly thereafter.

The employee sued, alleging that her employer violated the FLSA by failing to provide her a time and place to express breast milk and that it retaliated against her by terminating her after she asked for a time and place to do so.  The trial court granted the employer’s request for judgment as a matter of law and the employee appealed.  The appeal failed on the basis that the evidence was that she was given breaks necessary to express breast milk and had access to a private location in which to express milk, even though she chose to use her own office.   

One important aspect to the case was that of notice.  The employee claimed she gave notice of a grievance or complaint about not being provided adequate time/place by sending the email noted above.  The court rejected this claim, saying that neither “the context nor content” of the email was sufficient to put the employer on notice of a grievance or complaint, particularly because she had never asked for, or been denied, a time or place to express breast milk.   The employee also argued that because the employer reserved the right to monitor employee emails, her complaints to family members through those emails also constituted notice.  Although an interesting twist, the court rejected this argument as well.  Thus, the court found that her retaliation claim failed because she did not make any complaint to the employer.    

This case is a good reminder of an employer’s obligations under state and federal law to provide a private place for the purpose of expressing breast milk and to act appropriately if a complaint is filed.  It also raises the interesting issue about notice when an employer is monitoring emails; it is likely this is not the last we will see of this twist. 

If you have questions please e mail Anne-Marie at Astorey@rudmanwinchell.com



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