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How 'Useless' FLSA Nursing Break Provision Could Get Fixed

Law360 - Daniela Porat

As U.S. senators prepare to mark up a bill on Tuesday that would provide protections to nursing mothers in the workplace, Law360 explores how it could correct the lactation break provisions under the FLSA that have been described by judges and attorneys as toothless and illogical.

The Providing Urgent Maternal Protections for Nursing Mothers Act, which was introduced with bipartisan support in both the House and Senate this month, will close those loopholes and help women re-enter and remain in the workforce, attorneys said.

The 2010 Break Time for Nursing Mothers law afforded workers unpaid lactation breaks and a private space to express milk, but its placement in the overtime section of the Fair Labor Standards Act meant only nonexempt employees are covered. If employers deny workers breaks anyway, those employees are left without meaningful recourse because the only remedy for missed breaks is unpaid wages, making this law "virtually useless in almost all practical application" in the words of then-U.S. Magistrate Judge T. Michael Putnam in Hicks v. City of Tuscaloosa.

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How We Got Here

When speaking about the weakness of the FLSA in protecting a nursing mother's right to lactation breaks, attorneys often point to Judge Putnam's 2015 decision Hicks v. City of Tuscaloosa.

A patrol officer sued the city of Tuscaloosa after, among other claims, she was forced to express milk in an unsanitary city locker room where she was often walked in on by colleagues or members of the public, according to court records.

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While nursing employees could potentially seek relief through a retaliation claim, attorneys said it's a problem to rely on such an approach because the employee would have to know to lodge a complaint and show they were retaliated against for complaining.

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PUMP Act Fixes for FLSA

The PUMP Act untethers the nursing break provisions from the overtime section of the FLSA, expanding coverage to 9 million workers who are currently not entitled to these breaks.

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Menaka Fernando, a partner at worker-side firm Outten & Golden LLP, said even the right to breaks is important for nonhourly workers because of the pressure many employees feel to be constantly working.

While many women might choose to work through their lactation breaks, that should not be a requirement, Fernando said.

"The space is absolutely critical too, but I think that those two things go hand in hand, even for exempt employees," she said.

The other essential fix is giving nursing mothers the recourse for their claims to hold up in court by providing workers with the same remedies outlined under the FLSA anti-retaliation provision.

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While Fernando doesn't predict a flood of lawsuits on this issue once the act passes and nursing women can seek relief for denied breaks, she said the idea is if rights are violated, women have the ability to enforce them.

Still Falling Short

The PUMP Act is just a floor, attorneys said, and there is room for laws at each level to go further.

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Fernando said she understands the balance it takes for smaller employers who might not be able to provide paid breaks to nursing mothers.

But, she said, "if you can afford it, you should pay your employees."

Overall, if passed, the PUMP Act will empower and protect nursing parents, attorneys said.

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