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Employer Decides to Deny Employee Lactation Breaks? Think Again


Lico v. TD Bank - United States District Court Eastern District of New York


Facts:  Aida Lico ("Lico") worked at TD Bank ("TD") from September 2008 to May 2012. After giving birth, Lico returned to work in March 2012 from maternity leave.  At the time, Lico was nursing and needed to take lactation breaks while at work.  Her Branch Assistant Manager told her she was permitted to take only two daily lactation breaks and was required to use the restroom to do so.  When Lico objected to the bathroom on the grounds it was unsanitary, the Manager told her to use the mailroom.  Lico objected to the mailroom as a lactation room and claimed that since it had no lock, it did not afford her any privacy.  The Manager then instructed Lico to use the safe-deposit room for lactation breaks. 

Lico also alleged that almost every time she asked her Manager permission to take a lactation break, she was denied the request and given additional assignments.  Lico subsequently began arriving late to work, traveling home during the work day, and leaving early so she could nurse her child and lactate at home.  As a result of missing this work time, TD terminated Lico for "attendance issues."

Lico subsequently brought a Fair Labor Standards Act ("FLSA") claim against TD.  TD  moved for the Court to dismiss Lico's claims.

Holding:  The United States District Court denied TD's motion to dismiss on the grounds that the FLSA provides employees the right to lactation breaks while at work.  Specifically, 29 U.S.C. § 207(r) provides:

  • (1) An employer shall provide --
    • (A) a reasonable break time for an employee to express milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk; and
    • (B) 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.

As a result of the facts alleged by Lico, and the claims she brought under the FLSA, the Court held that she had alleged a "legally cognizable injury" under 29 U.S.C. § 207(r).  Therefore, TD's motion to dismiss was denied.

Judgment:  The United States District Court denied TD's motion to dismiss, as Lico had raised valid claims for violations of the FLSA as a result of her employer's decision to deny her lactation breaks while at work, as she had validly requested in accordance with the law.

The Takeaway:  At the outset, it is important to note that the Court did not rule either way on whether an employer allowing an employee to use a safe-deposit room for lactation breaks was suitable under the FLSA.  Instead, the Court only considered the facts as alleged by Lico and held that she had raised legitimate claims under the FLSA, sufficient to deny TD's motion to dismiss.

Employers would be wise to use this case as a reminder to train (or re-train) their managers/supervisors that lactation breaks are required, if requested by an employee.  While the employer is not required to pay these employees for these breaks, each time a nursing employee requests a lactation break, the employer is required to comply.  And do not forget:  the employer needs to provide a place, other than a bathroom, which shields the employee from view and free from intrusion from coworkers and the public!  But you readers already know that, since I laid out a portion of the relevant law above, right?

Majority Opinion Judge:  Judge Bianco

Date:  June 1, 2015

Opinion:  www.babc-employmentlawinsights.com/wp-content/uploads/sites/375/2015/06/Lico-v-TD-Bank-Memorandum-Order.pdf

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