By Mark F. Kluger and William H. Healey
Four of the serenading servers at Manhattan’s famous Ellen’s Stardust Diner are not singing a happy tune, according to a lawsuit they filed in late April alleging violations of their rights as breastfeeding employees. Specifically, the singing servers contend that they were forced to wait long periods of time to express breastmilk, were frequently interrupted, and relegated to a bathroom for handicapped patrons. If true, just about every one of the Stardust Diner employees’ allegations would violate both federal and New York State laws.
Many employers remain unaware that federal and state laws require employers to provide breastfeeding employees break time and other accommodations to express breast milk during work time. In 2010, the Affordable Care Act (“ACA”) amended the federal Fair Labor Standards Act (“FLSA”) to require employers to provide “reasonable” break time for an employee to express milk for her nursing child, whenever she needs to do so, for up to 1 year after birth. Employers are also required to provide a private place for the employee to pump, shielded from view and intrusion by co-workers and the public. The space cannot be a bathroom (or the boss’s office). Compensation for the breaks is not required unless the employer pays for other kinds of breaks. So employers who pay employees to stand outside and inhale toxic fumes must also pay employees to provide nourishment for their newborn babies. This FLSA amendment applies to all employers. However, those with fewer than 50 employees can opt out but only if they can demonstrate that compliance would be an economic or practical hardship.
While laws in 49 states protect a woman’s right to breastfeed in public and private, another 28 states (but not New Jersey) have laws that specifically address the workplace. Most unfortunately for Ellen’s Stardust, New York State has several applicable laws, including a Breastfeeding Mothers Bill of Rights. So good luck Ellen.
In addition, the New York State Nursing Mothers in the Workplace Act, on the books since 2007, guarantees a nursing mother breaks to pump at work no matter the number of employees employed and provides even more:
- Employers must inform returning mothers of their rights under the law;
- Breaks can be for up to 20 minutes every 3 hours;
- A private space with a chair and small table must be provided;
- Employees must be allowed to make up time missed while pumping;
- These rights are guaranteed for up to 3 years from the date of birth.
Under the FLSA amendment, employees are entitled to whatever combination of federal and state law provisions grant them the best of all possible available benefits. So in the case of the singing servers, New York State employees are entitled to notice of their rights, breaks of no less than 20 minutes (whenever necessary), and in a private, non-lavatory location with a chair and small table for up to 3 years. It sure sounds like Ellen’s Stardust may soon be singing a different tune. But, even if the serenading servers were Jersey employees, it is likely that the alleged violations at issue would be covered by the FLSA amendment.
In regard to the continued viability of a nursing mother’s rights under federal law, as of now, there has been no clear indication as to whether the possible repeal of the ACA will impact the FLSA amendment. Stay tuned for more on that issue.