Court Allows Collective Action Over Lactation Breaks To Proceed



By: Karen L. Piper


A federal district court in New York denied a bank’s request to dismiss an employee’s individual and collective action claims over alleged lactation break violations. Lico v TD Bank, No. 14-4729 (ED NY June 1, 2015).  The employee asserted “on behalf of herself and similarly situated nursing mothers employed by [the] Bank” that she was denied the time and an appropriate place needed to express breast milk.

In March 2010, the Affordable Care Act (ACA) amended the Fair Labor Standards Act (FLSA) to require employers having 50 or more employees to allow non-exempt, nursing mothers break time to express breast milk.  The law specifically requires employers to allow a nursing mother as many unpaid breaks as needed, for up to one year after childbirth, plus a place, other than a bathroom, in which to express breast milk, that is shielded from view and free of intrusion.

A teller/customer service representative employed by a large bank asked for lactation breaks when she returned to work following childbirth.  The Branch Assistant Manager told the employee that it was Bank policy to allow only two breaks per day.  The employee was told to use the bathroom to express milk.  She objected that it was unsanitary.  She then was directed to use the mail room.  The mail room did not have a lock so the employee either had to stand with her back to the door or sit on a small stool propped up against the door to prevent others from entering the room while she was expressing breast milk.  After the employee objected to using the mail room, she was told to use the safe-deposit room to express milk.  During the time that the employee was expressing milk in the safe-deposit room, customers were told that they could not have access to their safe-deposit boxes because the employee, whom the bank identified by name, was using it to express milk.  The employee could hear customers grumble and complain about being denied access.  The employee complained to her supervisor that the safe-deposit room also was not sanitary.  As a result of these and other issues, including delay in allowing the employee to take breaks, the employee suffered breast engorgement and infection, and often leaked milk through her clothing at work.  The employee began arriving late to work, going home during work hours, and leaving work early, to express breast milk.  She was discharged for “attendance issues.”  The employee sued the bank for violating the lactation break requirement.  Her lawsuit alleged that the bank’s break time policy adversely affected other similarly situated nursing mothers among its estimated 26,000 employees.

The bank initially sought dismissal of the employee’s individual claim, asserting that she could not prove damages.  The bank correctly asserted that the FLSA only allows damages in the form of “lost wages.”  The bank argued that the employee could not have suffered lost wages because lactation breaks are not required to be paid.  The court denied the bank’s request.  It agreed that FLSA damages are “limited to lost wages” and that “an employer is not required to compensate nursing mothers for lactation breaks.”  It observed that “it will often be the case that a violation … will not be enforceable, because it does not cause lost wages.”  However, in this case, the employee specifically alleged that she lost wages when she missed work time due to late arrivals and early departures and when she was late returning from breaks after going home to express milk.  The court denied the bank’s request for dismissal.  It also ruled there was “no basis for dismissing the putative collective action.”

Six weeks later, the bank sought to dismiss the employee’s claims on behalf of “similarly situated nursing mothers.”  The bank argued that the court had already observed that alleged lactation break violations often would be unenforceable because of FLSA’s limitation on damages to lost wages.  It argued further that each employee’s case would involve a “highly individualized set of circumstances” so that the named plaintiff could not suitably represent a class of nursing mothers allegedly denied lactation breaks.  The court issued a one-line order denying the bank’s request for reasons stated on the record, allowing the collective action to proceed. (November 15, 2015).

This case serves as a reminder of an employer’s obligation to provide lactation breaks to nursing mothers.  As was the case here, for many employers, the biggest challenge will be identifying a suitable private place for the employee to express milk.  For questions about meeting this obligation, contact the author or other experienced employment counsel.

This article was written by Karen L. Piper, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and a Member of the law firm of Bodman PLC, located in its Troy MI office.  She can be reached at (248) 743-6025 or

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. January 2016.