Workplace breast-pumping is a protected activity

In February 2019, a jury awarded a former employee of a Kentucky Fried Chicken franchise in Delaware more than $1.5 million in damages for gender-based discrimination and harassment after the company demoted her for pumping breast milk while at work. According to the lawsuit, when the employee was hired as an assistant manager she was told that it would not affect her need to pump her breast milk every two hours, as her doctor recommended. However, immediately after starting the position, she was forced to work 10-hour training sessions with just one break during the shift. Additionally, the space she was allotted for breast pumping was the manager’s office which had windows and a surveillance camera that she was told could not be turned off.

When the employee concluded her training, she was transferred to a different location where she dealt with complaints from co-workers who asserted that she was allowed too many “breaks” to pump. She was ultimately demoted.

The jury looked at several laws in making their decision, but one was of important note in this case. When the Patient Protection and Affordable Care Act (also known as the “Affordable Care Act,” or ACA) was enacted in 2010, it effectively amended the Fair Labor Standards Act to require all employers covered by the FLSA to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has the need to express the milk.”

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.” This law covers nonexempt (hourly) employees. The time spent pumping breast milk need not be compensated unless the employer provides compensated breaks to the employee and if the employee uses that break time to express milk.

Although the provision covers all employers covered by the FLSA, there is a U.S. Department of Labor exemption for employers with fewer than 50 employees if the employer can demonstrate that compliance with the provision would impose an undue hardship.

It is important to know that some states have more expansive laws covering this topic. If you have questions regarding how this affects your business, please contact the specialists at BCN Services at 1-800-891-9911.

Alicia Freeman, Operations Manager