From Employee Benefit News – Do you know what you need to do?

‘Nursing mother’ break requirement spurs

By John Thompson
March 8, 2013

An obscure part of the Patient Protection and Affordable Care Act obligates employers covered by the federal Fair Labor Standards Act to allow a worker to take unpaid break time to express breastmilk for her nursing child. The requirement extends for a year after the child is born, and the worker’s employer must:

  • Make available a suitable location (other than a bathroom) that is shielded from view and is free from intrusion by co-workers or the public,
  • Permit a “reasonable” break time under the circumstances, and
  • Let the worker take such a break each time she “has need” to express milk.

This all seems straightforward until one begins to ponder such things as how many daily breaks are required, how much time is “reasonable,” and so on.  Many of the answers necessitate individualized evaluations based on a particular employee’s (and child’s) circumstances.

For example, the number and frequency of breaks can depend on a variety of things such as the number of feedings/nursings in a baby’s normal daily schedule, the impact of a baby’s age upon his or her feeding needs and whether the baby is eating solid food. The U.S. Department of Labor suggests that the number of breaks called for in an eight hour shift would “typically” be two or three. However, more might be required during longer shifts.

The duration of a “reasonable” break is also subject to situation-specific factors. Relevant considerations would include, for instance, how long it takes the worker to walk to and from the break location, how much time she must spend expressing the milk (the Labor Department thinks that this would normally be around 15 to 20 minutes), and the amount of time she must devote to setting up for, cleaning up after and adequately storing the milk produced.

There are also many other areas of uncertainty. As illustrations, what must an employer do with respect to employees who do not work at any fixed location, or as to those who work at a client’s or a customer’s premises? The Labor Department has asked for public comment on these questions, but to date it has offered little guidance.

Although the law plainly says that “[a]n employer shall not be required to compensate an employee” for the reasonable break time taken, even here matters are less than clear. The Labor Department has said that the break could nevertheless count as compensable work time in some situations, including when the employee has not been “completely relieved from duty” during the break.  Labor Department interpretations also take the view that an employer must pay the employee the same way it does others if she takes paid break times to express breast milk.

The requirement does not apply to employees who are excluded from the FLSA’s overtime provision, including those who fall with that law’s executive, administrative, professional or “outside salesman” exemption. There also is an exception for an employer of fewer than a total of 50 workers if “undue hardship” will result from providing the breaks, but this is a high standard that will likely be difficult to prove.

Enforcement efforts appear so far mainly to have involved the Labor Department.  The most recent statistics released reveal that the agency found one or more violations of the break requirement in two-thirds of the 54 investigations it conducted. About 80% of the compliance problems grew out of the obligation to provide an adequate space, while a smaller percentage apparently arose from not providing break time. Employers found to be in violation reportedly agreed to observe the requirement in the future and to make employees whole for any losses resulting from unlawful conduct.

There also have already been at least some employee lawsuits. In one of them, a lower federal court found that only the Labor Department could enforce the requirement to provide a suitable break location. However, the court allowed the former employee to move forward with her allegation that management retaliated against her when she asserted her rights. The potential remedies for such a claim could include more than just lost wages; the FLSA allows for “such legal or equitable relief as may be appropriate,” which might encompass additional things like compensatory damages and reinstatement to one’s job.

Management should develop a policy for dealing with the break obligation before a worker comes forward with her request. Planning points will include, among others, who will take the lead in evaluating each worker’s request, what location(s) will be provided, how management will go about arriving at the appropriate length and number of breaks and whether there are any unusual or atypical factors to be evaluated ahead of time.

Employers should also note that a number of state laws require these kinds of breaks. Some of those laws provide more rights to a covered employee than the federal one does. When different break requirements apply to a particular worker, generally the employer must comply with whichever is more favorable to the individual. Management must also take this possibility into account as it formulates a policy.

John Thompson is partner with Fisher & Phillips. He can be reached at jthompson@laborlawyers.com or 404-240-4257.

This alert is intended for general information and should not be taken as specific legal advice.

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