The publication Corporate Compliance Insights (which focuses upon matters of interest regarding compliance, governance, and risk in the business community) recently published an article we authored regarding the federal Fair Labor Standards Act's requirement that covered employers provide breaktime to a worker for the purpose of expressing breast milk for her nursing child.

The item summarizes the break requirements, raises some planning considerations, gives examples of unanswered questions, and highlights selected enforcement developments.  The piece is entitled, "Are You Ready To Accommodate Nursing Mothers?", and it can be accessed at this link.

◊   Have a comment or something else to add?  Please use our comment feature below.

The U.S. Labor Department recently responded to our July 2012 Freedom of Information Act request for documents relating to its enforcement of the federal Fair Labor Standards Act's Section 7(r).  This provision requires covered employers to grant breaktime to an employee for the purpose of expressing breastmilk for her nursing child.  We have been following developments regarding this provision since employers first found out that it was included in 2010's Patient Protection and Affordable Care Act.

USDOL sent no documents, but it did provide a summary of enforcement data and related information.

Dozens Of Investigations And Violations

The information covers the period from Section 7(r)'s effective date of March 23, 2010 through June 11, 2012, which USDOL says is the most recent available.  During that time, the Wage and Hour Division concluded 54 Section 7(r) investigations.  The Division found one or more violations in 36 of them.

The Division classified 29 of the violations as involving a "failure to provide space" for the break.  The response did not disclose how many of these instances involved an employer's providing no space, as opposed to its having provided space that was inadequate or inappropriate in some way.

Five violations were said to consist of a "failure to provide break time."  USDOL gave no further information about these scenarios.

In all 36 cases in which the Division found violations, the employers reportedly "remedied the problem" in unspecified ways and agreed to comply with Section 7(r) in the future.  USDOL also said, "In three cases the employer provided back wages to compensate the employee for compensation lost when her hours were cut or when she quit her job due to the failure to provide the break time."  Presumably, these situations involved allegations of retaliation or claims that the worker quit but was constructively discharged as a result of the violation claimed; USDOL did not expand upon its statements.

In one case, USDOL reports, "the employee was reinstated."  This might refer to the situation it mentioned in which the employee "quit her job".  In any event, presumably the reinstated worker was terminated (constructively or otherwise) supposedly due to an assertion of her Section 7(r) rights.

Points Of Emphasis

The overwhelming proportion of alleged violations arose from an employer's failure to provide any space, adequate space, and/or appropriate space for a break.  Section 7(r) itself requires that the space be shielded from view, free from intrusion from co-workers and the public, usable for expressing breastmilk, and something other than a bathroom.

USDOL's 2010 "Preliminary Interpretations" elaborate upon this, saying among other things that:

♦   Employers are required to make a suitable room available for use (at least temporarily) "where practicable";

♦   If this is not "practicable", the employer must "create a space with partitions or curtains" that is otherwise appropriate; and

♦   The obligation to provide suitable space also applies to employees who work offsite.

See 75 Fed.Reg. 80073, 80075-77 (December 21, 2010).  USDOL adds that:

♦   The space may not be so far from the employee that it is "impractical" for her to take the breaks; and

♦   The arrangement is inadequate if the number of employees needing to use the space effectively "prevents" an employee from taking breaks or "necessitates a prolonged waiting time."

Id.

The enforcement information underscores more generally that employers must ensure that they:

♦   Know, understand, and comply with all of their Section 7(r) obligations; and

♦   Take no adverse action against an employee who seeks to or does exercise her rights under Section 7(r).

◊ Have a comment or something else to add? Please use our comment feature below.

An Iowa federal court has dismissed a worker's claim which alleged that her employer failed to comply with the federal Fair Labor Standards Act's Section 7(r) requirement regarding breaktime for the purpose of expressing breastmilk.  Under this 2010 FLSA amendment, employers are required among other things to provide places for such breaks that are "shielded from view and free from intrusion from coworkers and the public."

Private Enforcement of Section 7(r) Not Authorized . . .

In Salz v. Casey's Marketing Company, the employee sued after she had allegedly complained about the presence of a video camera in the room in which she took these breaks, later received reprimands about performance matters, and thereafter "left her position."  Senior Judge Donald E. O'Brien ruled that the employee could not enforce Section 7(r) in her lawsuit.

The court reasoned that (i) the FLSA does not require compensation for these breaks; and (ii) a worker's remedy for a violation of FLSA Section 7 is limited to seeking unpaid wages.  According to the judge, the employee's only redress under Section 7(r) itself was to complain to the U.S. Labor Department.

. . . But There Are Other Remedies!

However, the court refused to dismiss her "constructive discharge" and retaliation claims brought under FLSA Section 15(a)(3).  This provision says in part that it is unlawful to "discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to" the FLSA.  In the court's view, an employer violates Section 15(a)(3) by taking adverse action against an employee because she asserted her rights under Section 7(r).

There have been significant questions about the enforcement of Section 7(r) since it was adopted as a part of the 2,700-page Patient Protection and Affordable Care Act.  Perhaps little or no thought was given to these matters in the confused and frenetic circumstances under which the PPACA was enacted.

Nevertheless, as we said at the time, it seems clear that Section 7(r) transgressions can subject an employer to a USDOL investigation, to a USDOL lawsuit for court-ordered compliance (backed by contempt-of-court remedies), and to USDOL civil penalties of up to $1,100 for each willful or repeated violation.  Furthermore, as the Salz decision illustrates, an employer could face substantial liability for retaliating against an employee who invokes the requirements of Section 7(r).

◊   Have a comment or something else to add?  Please use our comment feature below.

The period has now closed for submitting information and comments relating to the U.S. Labor Department's "preliminary interpretations" of the 2010 federal Fair Labor Standards Act lactation-break amendment.  We highlighted these preliminary interpretations in a December post.  If DOL adopts even a portion of the positions put forth by many commenters, employers will be faced with yet another legal minefield.

Does The FLSA Sometimes Require Paid Lactation Breaks?

Several commenters continue to suggest or insinuate that lactation breaks of 20 minutes' duration or less must be treated as worktime under the FLSA.  Their positions overgeneralize an already loosely-worded DOL interpretation from 1940 that "[r]est periods of short duration, running from 5 minutes to about 20 minutes," must be counted as worktime.  See 29 C.F.R. § 785.18.  The rationale for this view was that such breaks "promote the efficiency of the employee" so as to inure mainly to the employer's benefit.  Lactation breaks serve laudable purposes for many reasons, but they are not "rest breaks" and are in no meaningful sense principally for the employer's benefit.

More importantly, any attempt to graft the rest-break interpretation onto the lactation-break amendment runs afoul of the plain words of the amendment:  "An employer shall not be required to compensate an employee receiving reasonable break time .  .  . for any work time spent for such purpose."  Policy preferences cannot override the words of the statute itself.

Some comments suggest that the time an employee spends retrieving pumping supplies and in other, unspecified "travel time" should not be considered a part of the break itself.  There is no basis for such a carve-out, especially in light of the amendment's use of the phrase "any work time".

Many push for a DOL statement that lactating employees using paid break time for that purpose must be paid in the same way that other employees are for the break time.  They further advocate statements that employers ought to allow an employee to use paid break time to express breastmilk but could not "force" her to do so.  Most seem to concede implicitly that the FLSA amendment itself has nothing to do with such things, because for support they refer to federal and state discrimination laws and to laws in some states dealing with lactation breaks.  It might well be that employers should maintain the proposed policies for a variety of legal and non-legal reasons, but there is no basis for any DOL pronouncements predicated upon laws it does not enforce and as to which it has no particular expertise.

Submissions Contain An "Interpretation" Wish-List

Various commenters also pressed for other provisions too numerous to summarize here.  Among the additional proposed pronouncements are that:

♦   Employers "should" permit lactating employees to extend workdays or to modify meal periods in order to avoid losing compensable worktime, but employers could not require them to do so.

♦   Employers and their customers or clients at whose premises lactating employees work can be "joint employers" with equal responsibility and liability under the lactation-break amendment.

♦   Adoptive mothers, or mothers who used surrogates, who choose to breastfeed with the assistance of lactation drugs are covered by the requirement.

♦   Employers would be required to provide a specific notice of amendment-related rights above and beyond any statement of rights included in a DOL poster.

♦   Employers must deal on an individualized basis with how often a particular employee "has need" to express breastmilk but would not be permitted to require an employee to provide any related justification or documentation for what she says.

Even if DOL issues no further interpretative material incorporating these or other provisions urged, employers should expect many of the commenters' views to be incorporated into DOL's enforcement posture and to show up in lawsuits by individual employees.

◊   Have a comment or something else to add?  Please use our comment feature below.

The U.S. Labor Department has now published what it calls its "preliminary interpretations" and a request for information regarding the federal Fair Labor Standards Act lactation-break amendment we wrote about in April and July.  The deadline for submitting information and comments is February 22, 2011.  Employers should give serious consideration to weighing-in on these "preliminary interpretations".

The material says that the "reasonable break time" required should be evaluated according to individualized considerations of both the time spent expressing milk and "steps reasonably necessary" to that activity.  In DOL's view, the length of a required break will depend upon a variety of things, like:

•   How much time it takes to express the milk (DOL anticipates 15 to 20 minutes),

•   Time spent walking to and from the break location, and any time waiting to use the space,

•   Time spent retrieving, unpacking, and setting-up a pump and related supplies,

•   The efficiency of the pump,

•   Time spent in washing, in cleaning the pump and attachments, and in any related steps, taking into account whether there is a sink with running water nearby, and

•   Time spent storing the milk in a safe manner.

As for the frequency and number of breaks, DOL will consider factors such as:

•   The baby's age as this relates to the child's feeding needs,

•   The number of feedings in the baby's normal daily schedule,

•   Whether the baby is eating solid food, and

•   How often the baby usually nurses.

DOL anticipates that the number of necessary breaks will "typically" be two or three during an eight-hour shift (and possibly more for longer shifts).  Apparently, then, DOL would not consider total breaktime of, say, 45 to 90 minutes each workday to be out of the ordinary.  DOL also says that these breaks might not track the employee's regular break times or meal periods.

According to DOL, employers are required to make a suitable room available for use "where practicable" (although this room need not necessarily be a permanent space dedicated to that purpose).  If it is not "practicable" to do so, the employer must "create a space with partitions or curtains" that is also otherwise appropriate under the amendment.  DOL says that employers are not complying with the break requirement if the space is so far from the employee that it is "impractical" for her to take the breaks, or if the number of employees needing to use the space means that this "prevents" an employee from taking breaks or "necessitates a prolonged waiting time".

DOL continues to "interpret" the amendment to mean that:

♦   An employer allowing paid breaks must compensate a nursing employee in the same way it does others if she uses such a break in order to express breastmilk; and

♦   The break must be treated as worktime if the employee is not "completely relieved from duty" (apparently ascribing this to a non-existent "general requirement" in the FLSA itself).

For a variety of reasons, both the correctness of these positions under the FLSA and DOL's authority to propound them are subject to serious question.  Nonetheless, DOL clearly intends to impose them.

These "preliminary interpretations" touch upon and seek input with respect to other subjects also, such as:

•   Whether and under what circumstances managers' offices, locker rooms, utility closets, storage spaces, or anterooms or lounges associated with bathrooms might be adequate break spaces,

•   What approaches there might be to situations in which employees (such as drivers) do not perform their jobs at a fixed place of work,

•   How to comply with the requirement when an employee works at a client's or customer's place of business,

•   How the employer is to be notified about the employee's intention to take lactation breaks (including whether a "simple conversation" should suffice), and

•   How the under-50-employee "undue hardship" exemption will apply (indications are that DOL intends to construe it very restrictively).

Although this latest release is couched as a request for public comment for DOL's use in "formulating further guidance", there is some hint that instead it might actually be DOL's last pronouncement on the subject for the foreseeable future.  Moreover, DOL states that it does not intend to issue regulations "[a]t this time" (it is not apparent by what authority DOL would do so in the absence of any empowering language in the amendment itself).  Even so, employers ought to study these materials carefully and should submit their reactions and any suggestions or objections.  For one thing, a muted response risks a later argument that the "regulated community" tacitly embraced DOL's views in their entirety.

◊   Have a comment or something else to add?  Please use our comment feature below.

The U.S. Labor Department has released its general views about the meaning of the federal Fair Labor Standards Act's new lactation-break requirement that was the subject of our April 1, 2010 post.  You will recall that FLSA-covered employers must now grant breaktime to a worker for the purpose of expressing breastmilk for her nursing child.

Fact Sheet #73 specifically confirms some of our original analyses, including that:

•   This FLSA amendment took effect when the Patient Protection and Affordable Care Act was signed into law on March 23; and

•   The provision does not apply to employees who are completely exempt from the FLSA's overtime requirement.

DOL has not specified any minimum number of, frequency of, or duration for these breaks.  It says only that the amount of time must be "reasonable", and that the breaks must be permitted "as frequently as needed" by the employee.

Echoing the amendment, the Fact Sheet states that an employer must provide a place other than a bathroom (even a private one) as a location for the break.  The location need not be reserved exclusively for a nursing employee's use.  Furthermore, it may be a place that is temporarily created or converted for this purpose or that is made available when needed.  However, DOL emphasizes that the location must be:

•   Functional as a space for expressing breastmilk;

•   Shielded from view; and

•   Free from any intrusion by co-workers or the public.

DOL acknowledges the amendment's clear statement that employers are not obligated to treat these breaks as compensable worktime.  However, in a continuation of DOL's recent "interpretative" actions, the Fact Sheet declares that:

•   An employer allowing paid breaks must compensate a nursing employee in the same way it does others if she uses such a break in order to express breastmilk; and

•   The lactation break must be treated as time worked if the employee is not "completely relieved from duty" during the break.

Whether these two pronouncements are permissible or even entirely correct under the FLSA is subject to debate, as is the effect of DOL's having announced them in an informal "Fact Sheet".  Even so, legal uncertainty, the possible impact of laws other than the FLSA, human-resources considerations, and prudence suggest that employers would be wise to follow them pending further developments under the amendment.

The Fact Sheet also clarifies how the "fewer than 50 employees" threshold must be determined in the exception for small employers who are prepared to prove that complying with the requirement causes undue hardship.  DOL says that all employees who work for the covered employer must be counted – not just those who work at a particular worksite.  That is, employers whose total number of employees is 50 or more are precluded from even trying to invoke this exception.

◊   Have a comment or something else to add?  Please use our comment feature below.

The federal Fair Labor Standards Act now requires covered employers to grant breaktime to a worker for the purpose of expressing breastmilk for a nursing child. The employer must also provide a suitable location for her to do so. This obligation is contained in the new FLSA Section 7(r) that was buried in a little-noticed part of the Patient Protection and Affordable Care Act. So far as we can tell, the provision took effect immediately when the law was signed on March 23, 2010.

Employers need not pay for the break.  No minimum break length is specified, but the break must be a "reasonable" one.  Employers are required to provide places for the breaks that are "shielded from view and free from intrusion from coworkers and the public."  The location cannot be a bathroom.

The employee must be permitted to take a break each time she needs to express milk. The break requirement extends for one year after the child is born.

An employer of fewer than 50 workers would be excepted from the requirement if allowing the breaks would cause "undue hardship". This condition is met only if the employer will face significant difficulty or expense in light of the employer's size, financial resources, nature, or business structure.  We anticipate that this high standard will likely be a hard one to meet as a practical matter.

We assume that Section 7(r) does not apply to employees who are completely excluded from the FLSA's overtime section. For example, this would be the case as to those who qualify for one or more of the executive, administrative, professional, or "outside salesman" exemptions.  However, employers should approach this on an exemption-by-exemption basis, because some FLSA exceptions are more-limited in scope.

It is not clear what might be the full range of potential liabilities for failing to comply with this provision.  Presumably, an employer could at least face U.S. Labor Department civil penalties of up to $1,100 for each willful or repeated violation, and the Labor Department could seek a court injunction requiring compliance. Substantial liability could also flow from an employer's having retaliated against a worker who asserts her right to this break.

A number of states already require these kinds of breaks. Section 7(r) does not override any such laws that extend greater employee protections than it does.

UPDATE:  Some have suggested that this amendment conflicts with current U.S. Labor Department "regulations" stating that employers must treat brief breaks as worktime.  Certain Labor Department interpretative guidelines and opinions do say that short rest periods, coffee breaks, snacktimes, and smoking breaks count as compensable hours worked.  A number of courts have adopted most of these views.

Even so, and while a definitive answer must await future developments, it is difficult to see how these Labor Department statements could override the statute's directive that "[a]n employer shall not be required to compensate an employee receiving reasonable break time .  .  . for any work time spent for such purpose."  The Labor Department or the courts might eventually construe "reasonable break time" to mean some presumptive minimum number of minutes.  But interpretations issued decades ago seem insufficient in themselves to impose any requirement that breastmilk-expressing breaks be treated as compensable worktime when the statute itself says otherwise.  Whether pertinent state laws mean that these breaks are to be handled as hours worked is of course a different question.

FLSA Lactation Break Amendment.pdf (33.29 kb)