In 2010, the Affordable Care Act (“ACA”) changed the workplace landscape for certain lactating women by mandating that employers provide “reasonable break time for an employee to express breast milk” as well as “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public” in order to do so. These requirements were tied to Section 7 of the Fair Labor Standards Act (“FLSA”) (29 U.S.C. § 207), which pertains to maximum hours in a given workweek and overtime compensation and, consequently, only apply to employees classified as “non-exempt.” Further, the penalty for violating this provision is based on the unpaid minimum wages and overtime compensation. As employers are not required to compensate employees for lactation-related breaks, employees arguably do not suffer lost wages and therefore cannot sue their employers to enforce the lactation provisions.
However, a recent case from the U.S. Court for the Eastern District of Pennsylvania opens the door for potential claims even where the employee has not lost wages. In Newsome v. City of Philadelphia, Civil Action No. 19-5590, the Plaintiff, a Philadelphia Police Department (“PPD”) officer, alleged that the PPD significantly frustrated her efforts to express breastmilk, including directing her to pump at the same time with another colleague, directing her to use co-workers’ offices only to have the co-workers refuse, and even instructing her to pump in the building’s lunchroom during lunch hour. Numerous times, Officer Newsome took sick leave in order to pump at home. After she filed an EEOC complaint, she was frequently sent home from work without pay and had to use her accrued personal time to supplement her reduced hours.
Officer Newsome’s eight-count Complaint alleged violations of the FLSA (including retaliation), Title VII, Section 1983, and the First Amendment. While the Court rejected many of these claims, Plaintiff’s claim for violations of the FLSA’s provisions for nursing mothers survived. The Court found that the alleged facts “allow[ed] for the inference” that the PPD did not provide a place “free from intrusion,” in that Officer Newsome experienced “frequent intrusions,” a “hostile attitude” from her co-workers whose spaces she was directed to use, and was directed to pump at the same time with a co-worker.
Crucially, the Court also found that Officer Newsome “plausibly” alleged a compensable injury. Although the PPD pointed out that she did not lose wages, the Court noted that, “The lack of a pumping space caused Plaintiff to take time off work to pump, and hours of leave have been held to be financial assets.” While skirting the ultimate issue of whether an employee can sue for violations of the ACA’s lactation provisions, this finding is in line with rulings from district courts in New York and Arizona recognizing that unpaid wages may include more than just hourly wages.
Newsome cautions employers to be mindful that arrangements offered to lactating women are “free from intrusion,” both in terms of location as well as work responsibilities. Otherwise, businesses face an increasing likelihood that the ACA’s lactation provisions will be judicially enforced by their individual employees.
Kristin A. Zech is an employment lawyer with Berenzweig Leonard. She can be reached at 703-940-3788 or [email protected].