• No FLSA Claim Where Employer Provided Nursing Mother Time and Place to Express Milk
  • January 8, 2013 | Author: Benjamin D. Sharkey
  • Law Firm: Jackson Lewis LLP - Jacksonville Office
  • In the first appellate case interpreting the nursing mother provisions of the federal Fair Labor Standards Act, the federal Court of Appeals in Atlanta has held that an employee’s claim failed as a matter of law because her employer provided her with breaks and a private space in which to express breast milk. Miller v. Roche Surety & Cas. Co., Inc., No. 12-10259 (11th Cir. Dec. 26, 2012) (unpublished). The Court further ruled that the employer did not retaliate against the employee for filing a complaint under the FLSA because the employee’s e-mail requested a time and a place to express breast milk did not constitute a complaint.


    Danielle Miller worked for Roche Surety & Casualty Co., Inc. and Roche Bail Bonds, Inc. (collectively, “Roche”). Following her pregnancy, Miller needed to express breast milk while at work, and Roche provided Miller with breaks to allow her to do so. Her breaks were neither counted nor timed, and she was never criticized for taking a break. Miller also was given a one-hour lunch break. Miller chose to express breast milk in her office and taped folders to her office windows for privacy. She did this without informing anyone at Roche that she would be expressing breast milk in her office and she did not ask for a different location, although other vacant offices were available.

    Once, Miller sent an e-mail to Roche regarding her need to express breast milk that stated, “Shannon, I’m scheduled tomorrow all day at the bail office, so therefore, I need to know where I can use my breast pump at and who will cover the office while I’m doing it. I’ll need to be able to do it at least twice while there. Please let me know. Thanks.” Sometime thereafter, Roche terminated Miller’s employment. Miller subsequently sued Roche for violation of the FLSA, alleging that Roche failed to provide her a time and place to express breast milk and that it retaliated against her by terminating her after she asked for a time and place to do so. Following a trial before a jury, the trial court granted Roche’s request for judgment as a matter of law. Miller appealed.

    Applicable Law

    The FLSA requires employers to provide a reasonable break time and a private place, other than a bathroom, for a covered employee to express breast milk. 29 U.S.C. § 207(r)(1). (For a detailed discussion regarding the FLSA’s requirements, please see our article, Health Care Reform Act Requires Employers to Provide Breaks for Breastfeeding.)

    The FLSA also prohibits employers from discharging or discriminating against any employee because he or she has filed any complaint. 29 U.S.C. § 215(a)(3). To establish a retaliation claim under the FLSA, an employee must show that (1) she engaged in statutorily protected activity; (2) she suffered adverse action by her employer; and (3) this adverse action occurred as a consequence of her protected activity. Wolf v. Coca-Cola Co., 200 F.3d 1337, 1342-43 (11th Cir. 2000). Filing a complaint is statutorily protected activity. Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011).

    Appeal Rejected

    Miller argued that Roche failed to provide her with a time and place to express breast milk while at work. The appeals court rejected this claim based on her testimony that she received breaks necessary to express breast milk and had access to a private location in which to express milk, even though she chose to use her own office. Because Miller did not request permission to use her office, the Court did not address whether the FLSA required that she be permitted to do so.

    Miller next argued that when she e-mailed her supervisor about a time and place for expressing breast milk when she was at the bail office, it was equivalent to filing a complaint. The Court rejected Miller’s contention. The Court found that neither “the context nor content of Miller’s e-mail put Roche on notice that she was lodging a grievance.” To the contrary, the circumstances surrounding the e-mail, the Court ruled, would not have informed Roche that Miller was filing a complaint. Miller had never asked for, or been denied, a time or place to express breast milk. Accordingly, the Court concluded that Miller’s retaliation claim failed because she did not make any complaint to Roche.


    This decision provides guidance to employers addressing the needs of nursing mothers in the workplace. Employers should work with their employees to develop solutions that comply with the FLSA and state law and that balance other human resources considerations. Employers should regularly review their policies and practices regarding nursing mothers to ensure compliance with applicable law.