Passage of lactation laws is a national trend among states and municipalities. In general, the laws provide that employers will provide a reasonable amount of break time to accommodate a female employee’s need to express breast milk for the employee’s infant child up to a certain age. Many of these laws require that the employer provide a private area which is not a bathroom for this use.  New York City’s ordinance even requires that the room be furnished in a certain way, including a chair and surface to rest objects.

This law is difficult for some employers to obey. In February 2019, in the U.S. Court for the District of Delaware, a jury found that a restaurant franchisee had violated Delaware’s version of this law. The lawsuit claimed that co-workers and supervisors at KFC/Taco Bell restaurants made it so difficult for the employee to pump breast milk during her shifts that her supply dried up. She pumped in a single-stall customer bathroom before she was asked to instead pump in the manager’s office, where there was a surveillance camera that she was told could not be turned off, and other employees would frequently enter the room, she claimed. Once she finished training, she was demoted to shift supervisor from assistant manager and involuntarily transferred to another KFC/Taco Bell in a different city where she struggled with insubordination from co-workers complaining that she got “breaks” to pump, she stated.  She alleged that her manager told her explicitly that she was demoted because of the pumping breaks. The jury awarded the employee $1.5 million in punitive damages for the employer’s willful violation of the law plus $25,000 in compensatory damages. (The verdict was reduced from $1.5 million in punitive damages to $300,000 because the law caps this type of damages at $300,000. The jury wasn’t told this.)

What’s the moral of the story? At least to some juries, this will be a sympathetic plaintiff. Check your local and state law requirements. If there is such a law, provide an appropriate place, and don’t retaliate against the employee (as in this case, with failure to deal with insubordination, a transfer and demotion). Employers may require that at least some of the break time to pump be taken concurrently with break periods already provided. Second, employers should make every effort to find a private place to pump and allow the frequent breaks required. Ask the employee, but generally experts recommend a break every two to three hours. In this case, perhaps the restaurant could have covered or turned off the camera while the woman pumped and put a “Do Not Disturb” sign on the manager’s office door.

For more information about this topic or any other labor and employment issue, please contact Katherine W. Fry at kwitherspoonfry@offitkurman.com or 267.338.1319

ABOUT KATHERINE R. WITHERSPOON

kwitherspoonfry@offitkurman.com | 302.351.0902

Ms. Fry has 22 years of litigation experience in every Delaware court, the U.S. Court for the District of Delaware, and the U.S. Court of Appeals for the Third Circuit. She has also represented clients in proceedings before the Delaware Department of Labor, the Equal Employment Opportunity Commission, the Merit Employee Relations Board, and the Delaware State Board of Education. Her employment practice focuses on discrimination; employment termination; unemployment compensation appeals; Fair Labor Standards Act issues; creation and review of employee handbooks and policies; severance agreements; and labor relations.

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