In 2010, the FLSA was amended to require covered employers to provide a time and place for nursing mothers who are non-exempt employees to express breast milk. In the first appellate decision interpreting the provision (29 U.S.C. § 207(r)(1)), the Court of Appeals for the Eleventh Circuit has ruled that an employee who was afforded both time and an appropriate place for this activity could not bring a claim as a matter of law. Miller v. Roche Sur. & Cas. Co., 2012 U.S. App. LEXIS 26364 (11th Cir. 2012).

In Miller, Plaintiff testified that “she received the necessary breaks to express breast milk” and, further, did not dispute that vacant offices at her employer’s place of business were made available as a private location in which to do so. However, Plaintiff “preferred to use her office” for this purpose and taped folders over her office windows, without notifying her employer that she would be doing so.  Because the separate facility and the necessary time undisputedly were made available to Plaintiff, the Court held that she could not bring a claim under the FLSA’s breastfeeding provision. Because Plaintiff did not expressly request permission to use her own office beforehand, the Court did not specifically address whether the law would require that she be permitted to do so, though such a requirement would run contrary to the requirement as set forth in the statute, namely that the space afforded be one “other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public.”

The Court also rejected Miller’s claim under the FLSA’s anti-retaliation provision, which was based on her assertion that she “filed a complaint within the meaning of [that provision] when she emailed her supervisor to ask for a time and place to express breast milk,” because simply doing so did not provide the employer “fair notice that an employee is lodging a grievance.”

“This decision provides helpful guidance to Florida employers,” observes Jacksonville-based Jackson Lewis partner Benjamin Sharkey. “Of course, employers dialoguing with employees who are nursing mothers must be mindful of their EEO obligations, as well as their obligations under applicable state laws, as well.”

Employers should regularly review their policies and practices in regard to nursing mothers to ensure compliance with federal and applicable state law, as well as to balance human resources considerations.