In Lico v. TD Bank, 2015 WL 3467159 (EDNY June 1, 2015), the Eastern District of New York held that the plaintiff successfully alleged a violation of Fair Labor Standards Act (FLSA) § 207(r). That statute, titled “Reasonable break time for nuring mothers”, provides, in pertinent part:
(A) a reasonable break time for an employee to express breast 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.
In this case, plaintiff worked for TD bank. After returning from maternity leave, she needed to use a breast pump at work to express milk. Her employer limited the number of times per day she was allowed to take lactation breaks, and permitted her to do so in places that she claimed were unsanitary, not private, and not adequate spaces for lactation breaks. Plaintiff also alleged that
almost every time she asked her manager for permission to take a nursing break, she was denied permission and instructed to perform additional assignments. At times, plaintiff was forced to wait as a long as five or six hours to express milk. The inability to take nursing breaks caused painful breast engorgement, and on several occasions, plaintiff’s breast milk leaked out through her clothing in front of customers and coworkers. At some point, plaintiff began arriving late to work, traveling home during work, and leaving work early, so that she could nurse her child at home, instead of pumping breast milk at work. This caused her to miss work time. On May 23, 2012, the bank terminated plaintiff for “attendance issues.”
Judge Bianco rejected outright defendants’ argument that § 207(r) is not privately enforceable, noting that the FLSA’s “penalty provision [29 U.S.C. § 216(b)] explicitly provides a private right of action for all violations of [FLSA] Section Seven, which obviously includes § 207(r).”
However, “§ 216(b) limits the remedies available for violations of § 207(r), in that it only permits recovery of lost wages and overtime, liquidated damages, attorneys’ fees, and costs.” In addition: “[R]ecovery under the statute is limited to lost wages, but an employer is not required to compensate nursing mothers for lactation breaks. As a result, it will often be the case that a violation of § 207(r) will not be enforceable, because it does not cause lost wages.” This “highlights a practical enforcement problem, and not a categorical bar to bringing suit.”
Summarizing and clarifying, the court continued:
[D]amages in a private suit under § 207(r) are limited to wages lost as a result of the employer’s failure to provide an adequate space for lactation. The statute does not provide a private remedy for any other type of damages. For example, claims of discomfort or embarrassment caused by the inability to take a required nursing break are not compensable under the statute. Additionally, the statute does not permit injunctive relief. However, if an employee needed to take longer breaks in order to travel to appropriate areas to take a nursing break, and was docked pay as a result, those lost wages would be compensable in a private lawsuit.
Turning to the merits, the court held that plaintiff plausibly alleged legally cognizable damages:
In several sections of the Amended Complaint, plaintiff alleges that she missed time at work because she needed to travel home in order to express milk. At oral argument, plaintiff elaborated upon these allegations, and provided the Court with a copy of the plaintiff’s initial disclosures, which specifically seek compensation for 40.35 hours of wages lost “specifically because of Defendants’ failure to comply with 29 U.S.C. 207(r) and discriminatory practices.” Based upon the allegations in the amended complaint, the Court concludes that plaintiff has plausibly alleged a claim of compensable damages, consistent with the remedies permitted under § 216(b). Although some of the allegations of damages in the Amended Complaint may not ultimately be compensable, it is not the Court’s role, in deciding a motion to dismiss, to make specific rulings with respect to the scope of damages available to the plaintiff. It is sufficient, for present purposes, that plaintiff has plausibly alleged a legally cognizable injury under § 207(r).