Breastfeeding Workers Target Fast Food, Retailers Under New Law

Fast food companies like McDonald’s USA LLC and retailers like Dollar General Corp. are among the first businesses being accused of not complying with new federal protections for nursing parents.

About a dozen employers have been hit with federal lawsuits under a law enacted in December 2022 that gave workers the right to sue their employers for monetary damages if they don’t give them enough time or private conditions to express breast milk.

Although safeguards for lactating workers have existed for more than a decade, the lawsuits expose compliance challenges across industries, particularly for restaurant and retail businesses that often have limited space.

The Providing Urgent Maternal Protections for Nursing Mothers Act closed a loophole that had left millions of workers, such as teachers and registered nurses, unprotected by a 2010 amendment to the Fair Labor Standards Act that guaranteed rights for employees who needed to pump at work.

The Pump Act is a “gamer changer,” said Lisa Considine, a partner at Siri & Glimstad LLP who is representing a worker suing a McDonald’s franchise in Haysville, Kan.

“Employees are really struggling with where to go to and are often being told ‘just go pump in your car’ or ‘go pump in the employee break room,’ and are being forced to live with the fact of a complete lack of privacy while pumping,” Considine said.

Previous Labor Department enforcement of the law was hampered in part by weak remedies, legal observers said. Under the Pump Act, workers can recover lost wages, liquidated damages, and punitive damages, among other remedies.

“The Wage and Hour Division was able to enforce the law previously, but without any meaningful financial consequences for a violating employer,” said Liz Morris, deputy director of the Center for WorkLife Law at the University of California Law San Francisco. “A right without a remedy is close to a meaningless right.”

Now we’re seeing that people are able to seek justice in court, and they are because their rights are still being violated,” she added.

Varying Needs, Solutions

Kathleen Farber started a job as night manager of the Haysville McDonald’s in January 2023. She immediately told her new boss that she would need time and a place to pump breast milk for her baby at home.

She was told she could use the corner of a stock room, to avoid security cameras, or the bathroom, according to her lawsuit.

Faber was only able to take a break to pump in about half of her shifts, and the lack of a consistent schedule caused her pain and a reduction in her milk supply, which she needed to supplement with baby formula. Anxious and stressed, she told her bosses the situation was unsustainable, but they offered no solution. She quit in May, according to her complaint.

Nursing parents should have “reasonable” break times as many times as needed to express breast milk for up to one year after a child’s birth, according to the new law. Employers must provide a private space, other than the bathroom, that is “free from intrusion from coworkers and the public,” it says.

The baby’s feeding schedule is the driving factor behind how much time or frequency an employee will need, which changes as the infant gets older, Morris said. For example, a parent of a newborn may need breaks every two hours, but an employee with a 20-month-old may only need one break during an entire eight-hour shift, she said.

“Sometimes we hear of managers saying ‘can’t the person just hold it?’” Morris said.

According to Considine, the lack of pumping accommodations is widespread, particularly for women who aren’t in white-collar professions.

Considine is also representing workers in cases against Wendy’s Co. and large retail chains Ulta Beauty Inc., and Advance Auto Parts Inc., as well as elevator manufacturer Otis Worldwide Corp. and the US Postal Service.

Complying With the Law

Some employers have an easier path to accommodate workers’ lactation needs compared to others in more challenging businesses, said Christine Bestor Townsend, a management-side attorney at Ogletree Deakins.

“Certain industries have unique challenges: retail, restaurants, hospitality, construction,” she said. “I’m currently in a building with a lot of offices with doors that it’s relatively easy for us to comply with.”

Workers in some of the pending lawsuits are asking their employers to rent or buy “lactation pods"—a portable private space that comes with a seat, a small table, and an outlet to plug in the breastfeeding pump. They’re also requesting use of a manager’s locked office.

But the bar could be lower for businesses to comply with Pump Act accommodations, according to US Labor Department guidance .

Employers in the restaurant and retail industries, for example, can “create temporary space for pumping by providing dividers and signs in a portion of a storage room, allowing the employee to block or turn off cameras to ensure the space is shielded from view and free from intrusion, and providing a chair and a table for the employee,” the agency said.

After the Pump Act’s passage, employers should anticipate litigation if they aren’t complying with the law, and should look for creative solutions, Townsend said.

“There’s going to continue to be working moms in the workplace who are going to need to pump and employers would do well to try start thinking of those issues in advance of them becoming an issue,” she said.

Joint Liability

Workers in the McDonald’s and Wendy’s lawsuits are also trying to hold the corporations liable as joint employers with the franchisees.

The franchise industry has long rejected the notion that franchisers control employment decisions of workers at franchise locations. They’re currently battling a National Labor Relations Board rule that would make it easier to find a joint employment relationship for labor organizing and collective bargaining purposes.

But the workers in these lawsuits are attempting to prove joint employment through an unusual route. They allege that the companies assert some control over the restaurants’ building layout, which could affect whether workers have an appropriate space to pump.

The workers allege McDonald’s “controlled its franchisees’ operations,” citing a portion of the franchise agreement that says operators must adhere to the standards and policies of McDonald’s restaurants, including “the use of only prescribed equipment and building layout and designs.”

In the Wendy’s case, plaintiffs cite a portion of the company’s 2022 annual report that states “in the case of franchisees, field visits are made by Wendy’s personnel who review operations . . . and make recommendations to assist in compliance with Wendy’s specifications.”

“Those franchise agreements often include terms that govern the physical space that the franchisee must comply with,” Considine said. “And where corporate does not allow the franchisee to build a space to provide lactation accommodations, it is our position that they are exerting a certain amount of control over the conditions of employment that would allow for a joint employer finding.”

The two cases are proposed nationwide collective actions that, if approved by a court, would cover lactating workers at any McDonald’s or Wendy’s restaurant who weren’t given adequate conditions for pumping.

Neither McDonald’s nor Wendy’s responded to requests for comment on the lawsuits. Attorneys representing the businesses as well as the franchisees also didn’t respond to comment requests.

Fast-food giants typically avoid mentioning any terms and conditions of work for employees in their agreements to avoid a joint employment claim, said Marshall Steinbaum, an assistant professor of economics at the University of Utah.

But they do generally get to decide whether a building satisfies the franchise agreement, said Steinbaum, who reviews franchise agreements for his research.

The workers are arguing “the Pump Act makes it that the layout of the store is about the terms and conditions of work—that’s what’s interesting about these lawsuits,” he said. “It kind of crosses the border from terms and conditions of work to other elements of the franchise relationship that the franchiser definitely does control.”