The feelings of apprehension associated with going back to work after a maternity leave are akin to the first day of kindergarten or being the new kid in the cafeteria. This is especially true if you are planning to express breast milk (a/k/a pump) at work, which comes with its own set of logistical and legal issues to navigate in addition to everything else.
If you intend to pump at work, prior to heading back, it's important to know your rights and to make a plan. When it comes to the plan, we suggest checking out this Survival Guide on Mom Loves Best for tips on making this transition go more smoothly.
Know Your Rights: Federal Law
The “Break Time for Nursing Mothers Law” is a 2010 Affordable Care Act amendment to the Fair Labor Standards Act (“FLSA”). It requires covered employers to provide break time to nursing mothers (who are full time hourly employees) to express breast milk (for up to one year in a private, non-bathroom location). Not all employees are covered – only those who are “nonexempt” from overtime requirements (that means you DO get overtime). “Exempt” employees – those who are not entitled to overtime – are not protected. Breaks do not have to be paid, but if other employees received paid breaks, then nursing mothers have to be treated the same way. The amount of time you get for a break needs to be “reasonable” which, in a legal sense, usually means it depends on the circumstances.
Small employers (less than 50 employees) may be able to establish that providing such break time would pose an undue hardship. The FLSA also protects employees from retaliation for making complaints. FAQs and Fact Sheets on the FLSA's nursing mothers' protections can be found here.
What if your employer violates your rights? The FLSA includes what's called a “private right of action” – meaning the right to file a lawsuit – for retaliation claims. Retaliation is when you have made a complaint that your rights are being violated and then your employer fires you or takes some other adverse action (usually resulting in loss of pay) because of that complaint. Courts have held that there is NOT a private right of action if you are simply denied your right to express breastmilk without the retaliation component (primarily because there is no financial loss flowing from that). In that instance, you can consider reporting your employer to Human Resources or to the Department of Labor Wage and Hour Division. These types of complaints are protected from retaliation and, in the event you are fired or otherwise treated adversely, you may then have cause to file a lawsuit.
Know Your Rights: State Law (New York)
If you are not protected by the FLSA you may be protected under your state's law.
For example, New York Labor Law Section 206-c requires employers to give a nursing mother (whose child is up to three years of age) unpaid breaks in order to express breast milk. The employer must provide the employee with written notice of this right and make “reasonable efforts” to provide the employee with a private place to express breast milk (not a restroom or toilet stall) in close (i.e., walking distance) proximity to her work area. An employer may not discriminate against a female employee for choosing to express breast milk in the workplace.
State law has also been interpreted as not allowing a lawsuit based on solely a violation of the break time requirement. However, the Labor Law also includes anti-retaliation provisions that may apply if you make a complaint and are then fired or otherwise retaliated against.
Know Your Rights: Pregnancy Discrimination Laws
The Pregnancy Discrimination Act (which amended Title VII of the Civil Rights Act) (“PDA”) is the federal law that protects women who are pregnant and those “affected by pregnancy” from discrimination. It does not specifically speak to breastfeeding, but federal courts have started to apply the PDA in this context.
In 2017, the 11th Circuit just joined the 5th Circuit in holding that breastfeeding is a protected medical condition under the PDA. (The 5th Circuit decision in EEOC v. Houston Funding, can be found here. This was a big win for women's workplace rights. The Court also held that, while an employer does not have to give a “special” accommodation for breastfeeding, it must provide accommodations on an equal basis to other employees – meaning, it must treat breastfeeding workers the same as other employees similar in their ability or inability to work. This is basically a reiteration of the standard in the famous UPS Supreme Court case which applied this standard to women who need pregnancy-related accommodations like lifting restrictions. You can read more on the UPS case here. But the 11th Circuit decision is significant because it applies this standard to breastfeeding mothers, not only pregnant women.
The 11th Circuit case, Hicks v. Tuscaloosa and which can be read here, involved a police officer who asked for alternative duty because breastfeeding and the necessity for breaks made it difficult for her to be on patrol duty and wear a restrictive vest. The Court found that this was not a request for a “special” accommodation because it was really no different than accommodations other workers similar in their inability to work would request.
Unlike the PDA, New York law does explicitly require reasonable accommodations for pregnancy related conditions without requiring an analysis of how other workers are restricted and treated. While breastfeeding is not explicitly included in the definition of a pregnancy related condition, New York law tends to be interpreted as being more protective than federal law and, in light of the analysis in the 5th and 11th Circuit decisions, there is a strong argument to be made.
What Should I Do if My Rights Have Been Violated?
If your employer has not allowed you to take breaks to which you believe you are entitled, or has interfered with your ability to do so, you should consider going to HR, a superior, or to the Department of Labor. You should also consider making a complaint if you are being harassed or otherwise treated adversely because of a pregnancy, maternity leave, or for breastfeeding.
If you have been fired after a complaint, for exercising your rights, for asking for an accommodation related to breastfeeding, or soon after a pregnancy or maternity leave, you should consult an attorney as soon as possible. There are strict time deadlines in all employment cases that may be shorter than you think. The Pregnancy Discrimination Act – as well as any sex-based discrimination claim under Title VII – requires filing a charge with the EEOC as a prerequisite to a lawsuit. Cases against municipalities and school districts may have even shorter deadlines. For example, in New York, notice of claim requirements apply to state law cases against counties, towns, and school districts.
This article is not intended to constitute legal advice or to substitute legal advice particular to your situation. All cases are different and depend on their own specific facts and circumstances. If you feel you have been the victim of discrimination or deprived of your rights as a breastfeeding mother, feel free to give us a call. We are happy to see if we can help.