Making Room for Moms: Restaurants Face Lawsuits from Breastfeeding Mothers

Employees at fast food chains McDonald’s and Wendy’s are taking advantage of new protections under the Urgent Maternal Protection for Breastfeeding Mothers Act of 2022 (PUMP Act) by filing class action lawsuits in Ohio and Illinois. The PUMP Act requires employers to provide “reasonable break time” to nearly all exempt and non-exempt employees to express breast milk in a private space that is not a bathroom.

The law also requires that these spaces be “protected from view,” “safe from intrusion by co-workers and the public,” and “available whenever” an employee needs to pump. In the lawsuits, the plaintiffs claim that their respective franchisees failed to provide adequate breaks and appropriate spaces for pumping, as required by the law. These cases highlight the potential liability of retail fast-food operators who hide in stores that may not be prepared to comply with the new law.

The key nuggets

On February 1, plaintiff Amanda Bazzett filed a lawsuit on behalf of Wendy’s employees who have been denied breaks and proper space to pump breast milk since the PUMP Act went into effect in December 2022. Bazzett claims she was forced to pump in an open “crew room” in the back of the restaurant, typically used by employees to rest and eat meals and store their personal belongings. Bazzett further alleges that while she was pumping in the room, other employees frequently came and went, and she was not afforded a private and secure space as required by law. Most recently, on June 12, Bazzett agreed to dismiss her individual claims, but the agreement left the door open for other class members to bring similar claims against Wendy’s and its franchisees.

On February 14, represented by the same firm as Bazzett, plaintiffs Kathleen R. Faber and Lexis Mays filed suit on behalf of McDonald’s employees who they say were also denied proper breaks and private spaces to pump. Faber claimed, among other things, that the general manager of her Kansas McDonald’s forced her to pump in a warehouse during some shifts and, when male employees worked with her, in the restaurant’s restroom. She also claimed that she was not given adequate time to pump and that she was given “no breaks at all” during half of her shifts. Mays claims that she was forced to pump in an office in her New York store, with no doors, that female employees frequented during Mays’s pumping breaks. Faber and Mays also claimed there were shifts during which they did not get a break to pump milk. McDonald’s has asked to have the case dismissed, but the court is unlikely to rule before the end of the year.

In both cases, the plaintiffs allege that the defendants could have easily provided private spaces using temporary pod-style units at relatively little cost, in what appears to be an attempt to preempt an “undue burden” argument potentially available to franchisees under the law. The complaints seek injunctive relief, equitable and punitive damages, and attorneys’ fees against the fast food chains and their franchisees.

Take away food

While these two class actions have not been entirely successful to date, the facts alleged in the twin complaints demonstrate the challenges that restaurant operators face in adapting the physical spaces of their stores to the Act. Compliance need not be a headache, however, as it generally requires only two types of accommodations for breastfeeding employees: time and space.

First, the law requires employers to provide “reasonable break time” whenever an employee is required to pump. What is reasonable will depend on the needs of each pumping employee, and managers should be wary of imposing a strict “nursing schedule”—even if the employee has agreed to it—because needs may vary throughout the breastfeeding period. The law does not require that this break time be paid, but PUMP breaks must be paid in the same manner as other short breaks given to employees who are not pumping.

Second, the law requires employers to provide a private space, other than a bathroom, that is private and free from intrusion. A private space can take many forms and can be an office, a storage room, or even a partitioned area, as long as it provides privacy for the pumping employee. A room that can be locked or an area with a sign warning other employees not to enter may suffice. The space must also be “functional,” which according to the Department of Labor guidelines means there must be a place for the breastfeeding employee to sit and a flat surface, other than the floor, to place a breast pump. And while the pump does not have to be located in the same room, employees must have a way to store pumped milk while they are at work, such as an insulated cooler or employee refrigerator.

These cases also have a unique aspect: allegations that franchisors and franchisees are jointly liable because of the requirements of Wendy’s and McDonald’s franchise agreements and guidelines. The complaints assert that because corporate franchisors can dictate the layout of restaurants, they therefore dictate the terms of employment of nurses who are deprived of spaces to pump milk. In Faber/Mays, McDonald’s begins its dismissal case by arguing that the company is not a “direct employer,” an argument that does not apply to franchisees. Similar theories have failed because courts have held that the corporate franchisor does not exercise sufficient control, but the recent push by federal agencies to expand the definition of “joint employer” looms in the background.

For now, franchisees should ensure that store managers are aware of the PUMP Act requirements. Before receiving an application, store operators should also assess whether their stores can accommodate the Act’s private space requirements or whether a space modification will be necessary. Longer term, franchisors and their franchisees should review their franchise agreements to determine the elements of control over their stores’ physical spaces. At a minimum, the provisions in each agreement should allow for space modifications, whether temporary or not, to accommodate nursing employees.

Amber M. Rogers is a partner at Hunton Andrews Kurth LLP with experience in complex labor and employment law litigation and counsel. Scott W. Burton is a partner at Hunton Andrews Kurth LLP, where he advises national clients on the full range of labor and employment law compliance matters.