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.

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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).

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Earlier this week, the U.S. Labor Department's Wage and Hour Division published a "Final Rule" entitled, "Updating Regulations Issued Under the Fair Labor Standards Act."  This document (which affects not only "regulations" but also interpretative provisions of lesser status), addresses a number of subjects.  These topics include (among others) fluctuating-workweek pay plans, the impact of previous changes in the minimum wage, the tip credit available for tipped employees, and the exemption status of certain employees in automobile dealerships.  The "Final Rule" is effective on May 5, 2011.

This action is ostensibly the continuation of an initiative begun in 2008.  At that time, the Wage and Hour Division proposed to clarify and correct certain FLSA principles and to take into account FLSA amendments that had occurred over a timeframe of more than three decades.  The current administration has now transformed this undertaking into a plaintiff's-lawyer "wish list" consisting mostly of background commentary rather than the procedurally-sound adoption of actual administrative interpretations or regulations.  Employers must now be prepared to explain to the courts why substantial portions of this publication should be rejected.

We are continuing to evaluate the details and will be posting additional comments and analysis.

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.

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