Dive Brief:

• The Tucson Fire Department may be going to trial to defend allegations that it failed to provide an employee appropriate accommodations for expressing breast milk (Clark v. City of Tucson, No. 14-02543-TUC (D. Ariz., April 25, 2018)).
• Carrie Ferrara Clark alleged in a lawsuit that, upon returning from maternity leave, her rotating fire station assignments did not comply with the Fair Labor Standards Act's (FLSA) requirements, in part because some of the locations didn't have a private area with a locking door. The employer, defending the claims, argued that the FLSA only requires that the space be "free from intrusion" and "shielded from view."
• Clark also alleged, however, that the employer retaliated against her for complaining to the department's equal opportunity division about the potential FLSA violations by assigning her to an undesirable station. When she complained about the assignment, an assistant chief allegedly told her "well, that’s what happens when you file a complaint with EEO." The court denied the employer's request for summary judgment on those claims, potentially setting the case up for a jury trial.

Dive Insight:

Breaks and spaces for nursing mothers are a relatively new requirement, added to the FLSA by the Affordable Care Act in 2010. Early research indicates that compliance has been lacking, but litigation around that alleged noncompliance is just beginning to make its way through the courts — Clark's maternity leave occurred in 2013.

Generally speaking, the law requires that employers provide workers suitable space and time to express breast milk for one year after the birth of a child. And as the court noted in Clark, U.S. Department of Labor guidance on the issue makes clear that there are a number of ways to comply with that mandate, including options that don't require a lock.​

Additionally, this case illustrates why an employer must refrain from retaliation, even if it believes an employee's complaints are off-base. Employees who believe they are exercising a protected right (or opposing unlawful activity) can be protected from retaliation under various employment laws. Instead, experts say managers should be trained to thank employees for voicing their concerns and escalate the complaint to the appropriate place, which often will be HR.

As employers begin to see the creation of lactation break case law, some have been touting their decision to go above and beyond what the FLSA requires, hoping to boost morale and retention. Hotel chain Hyatt, for example, recently told HR Dive via email that it included five lactation rooms in the redevelopment of its corporate headquarters. Based on feedback from employees, the company decided to include sinks, locker storage, supplies, private keycard access, Wi-Fi and more. It also maintains a calendar booking systems for employees to reserve the rooms and employees who are using the room receive mini-fridges at their desks.

In addition to watching how the courts interpret the law — and what the competition is offering — employers also may need to keep an eye out for state and local laws that provide more generous coverage that their federal counterpart.