On December 26, 2012, the Eleventh Circuit, which has jurisdiction over Florida, issued a decision in Miller v. Roche Surety and Casualty Co., Inc. The plaintiff, Danielle Miller, sued her former employer claiming that it violated the Fair Labor Standards Act (“FLSA ) by failing to give her a time and place to express breast milk and then by terminating her in retaliation for her complaints.

As you may recall, the Patient Protection and Affordable Care Act of 2010 amended the FLSA to require employers of 50 or more employees to provide reasonable break time for a nonexempt employee to express milk for her nursing child for one year after the child’s birth and a location, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, where the employee may express breast milk. The law creates, but does not define, an undue hardship defense for the employer.

The plaintiff in Miller admitted that the employer gave her the necessary breaks to express breast milk. The employer also made a private place, other than a restroom, available to the plaintiff for expressing her breast milk. The plaintiff unilaterally decided to use her own office for expressing her breast milk. The court concluded that the employer satisfied its obligations under the law – it provided the plaintiff with the necessary time and private location to express her breast milk.

The plaintiff’s retaliation claim also failed. She never complained to her employer about lack of access or time to express her breast milk and she never asked for a location other than her office to express. On one occasion, when the plaintiff was scheduled to work in another location, she emailed her employer to inquire where she should express her breast milk in the other office. The court concluded that the email was not a complaint that the employer had violated the law. Because the plaintiff made no complaint, there could be no retaliation for complaining.

The facts of plaintiff’s case were incredibly weak. As a result, the 11th Circuit’s decision leaves unresolved some of the more intriguing questions under the FLSA’s breaktime provisions for nursing mothers, such as what is reasonable break time, what is an undue hardship, and what if the employee prefers a space other than the private, non-bathroom location the employer has offered for expressing milk.