The first appellate court to interpret the new break time rules for nursing moms has been issued by our very own United States Court of Appeals for the Eleventh Circuit (which governs Florida).
What the Law Provides
The Patient Protection and Affordable Care Act (“Affordable Care Act” also known as “Obamacare”) amended the Fair Labor Standards Act (“FLSA”) to provide the following:
• Employers are required to provide reasonable break time for a non-exempt employee to express breast milk for her nursing child for one year after the child’s birth.
• Such break times do not need to be compensated unless other employees are compensated for break times.
• Employers are also required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk
• The break time requirement became effective when the Affordable Care Act was signed into law on March 23, 2010.
The Miller v. Roche Case
Danielle Miller, the plaintiff in the Miller v. Roche case, was free to take breaks as needed to express breast milk. Ms. Miller’s breaks were not counted, timed or criticized and she also received a one-hour lunch break.
Ms. Miller also had access to a private place to express her milk in that she utilized her office for that purpose. She made the space private by taping folders to her office window for privacy. Ms. Miller undertook the privacy efforts on her own, without discussing the matter with her employer and further did not request a different location.
At some point during her employment at Roche, Ms. Miller was scheduled to be at a different office so she emailed her employer and requested guidance on where she could pump breast milk and who would cover for her during those breaks. Also during her employment, Ms. Miller sent email communications to family and friends from her work email account in which she voiced complaints regarding her employer.
After Ms. Miller was terminated from her employment at Roche, she brought a lawsuit alleging violations of the FLSA breast feeding break rules and claiming that she was terminated in retaliation for filing a complaint under FLSA.
Based on the facts set forth above, the Court found that Roche had fully satisfied the FLSA requirement to provide Ms. Miller with breaks and a private space in which to express milk.
Moreover, the Court rejected Ms. Miller’s claim that emails from her to her family and friends from her work email account could be counted as a complaint (because her email could have been monitored by Roche) since she never shared her emails with anyone at Roche. Additionally, the Court also rejected Ms. Miller’s argument that her email to her employer requesting space and time to express milk in advance of traveling to different work location was a complaint. Rather the Court found that her email request would not have alerted a reasonable employer that a complaint had been filed.
Even though the Miller v. Roche case was resolved in favor of the employer, litigation is always expensive and employers would be better served in taking proactive steps in order to comply with the breast feeding break rules. Human Resources, supervisors and/or managers should engage non-exempt moms returning to the work force to make arrangements for coordinating breaks, coverage for breaks, and a private (non-bathroom) location for new mothers to express milk.
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Dori K. Stibolt is a senior associate with the law firm of Fox Rothschild LLP. Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims. You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.