A decision from the Seventh Circuit U.S. Court of Appeals (with jurisdiction over Illinois, Indiana, and Wisconsin) offers an important reminder to employers about the potential for successor liability under the federal Fair Labor Standards Act.

In Teed v. Thomas & Betts Power Solutions LLC, a company that acquired another business's assets at a receiver's auction was held to be responsible for paying a $500,000 settlement reached in an FLSA lawsuit between the predecessor business and its employees.  The acquiring company knew about the FLSA lawsuit prior to the asset acquisition and specifically disclaimed liability for the lawsuit as a condition of the asset-transfer agreement.

Contractually Disclaiming Liability Was Not Enough

The court first said that a multi-factor federal analysis trumps state law in FLSA cases involving possible successor liability.  It also saw the "default rule" as being that a predecessor's FLSA liability should normally be imposed upon the successor, unless there are good reasons not to do this.

And in what is perhaps one of the most-instructive aspects of the decision for other employers, the court ruled that an explicit contractual disclaimer of the FLSA liability was not a good enough reason standing alone to avoid the default rule.  The court concluded among other things that, if an acquiring employer could contractually disclaim liability in this fashion, the "statutory goals" of the FLSA would be frustrated, and "a violator of the Act could escape liability or at least make relief much more difficult to obtain."  The court also rejected a variety of other arguments to the effect that finding successor liability would be inequitable or economically unwise.

Due-Diligence Prior to Acquiring Assets

This case demonstrates that employers should carefully analyze any potential FLSA successor liability in evaluating whether and upon what terms to acquire another company.  While the decision might at first appear to discourage due-diligence on this score – the court referred to the acquirer's knowledge of the pending FLSA lawsuit as favoring successor liability – this would not be the wisest approach.  For one thing, the opinion addressed some circumstances under which a court might decide not to impose successor liability even if the acquirer had such knowledge.

The more prudent course would instead seem to be to determine early on whether potential FLSA liability exists, and then to consider the prospects for successor liability under the specific facts presented, what might be done to decrease the chances that successor liability would be found, and whether the acquisition might be structured in such a way as to provide a financial cushion if successor liability is imposed.  The employer can then give these matters informed consideration in evaluating the overall risks and benefits of proceeding with the transaction.

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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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Now that the election is behind us, employers should consider what they might anticipate in the field of wage-hour law, which is already one of the largest sources of employment-law claims.  While the nature and number of the possible developments are practically unlimited, some of the foreseeable ones include these:

♦   The push to increase the minimum wage under the federal Fair Labor Standards Act, which was at fever-pitch before going dormant as the election season approached, will now re-emerge.  There will be similar efforts under many analogous state and local laws and ordinances.

This will probably include proposals to increase the FLSA's cash-wage requirement for tipped employees for whom employers take that law's tip-credit.  The public-relations approach will be that this increases "the minimum wage for tipped workers", despite the fact that the FLSA minimum wage for tipped employees is already the same as it is for everyone else.

 ♦   Analogous moves might well seek to increase the salary amount required for some of the FLSA's exemptions from minimum-wage and overtime, as well as to impose paid-leave requirements.  Recall the March bill introduced by Iowa Senator Tom Harkin which proposed both, including requiring most employers of at least 15 employees to accrue an hour of paid "sick time" for every 30 hours an employee works, up to at least 56 hours each calendar year.

Another possible measure might involve an attempt to raise the FLSA overtime-pay multiple from its current 1.5 times the regular rate to 2.0 times that rate.  This might be joined with reducing the threshold number of hours for FLSA overtime from 40 hours in a workweek to, say, 35 hours.  Similar FLSA amendments were proposed in the late 70s and early 80s, during another period of high unemployment and persistent economic stagnation.  A further impetus this time around might be the already-burgeoning rates of part-time employment, taken in conjunction with what could be a further trend toward part-time work driven by looming Affordable Care Act requirements.

 ♦   Aggressive government enforcement at federal and state levels is likely to expand.  There will be an even-more-intensified focus upon whether workers treated as independent contractors should instead be viewed as employees.  Employers should expect further national or regional enforcement initiatives undertaken with respect to entire industries.  These initiatives will include (among others) those directed at what the U.S. Labor Department has called "low wage" sectors, such as hospitality businesses and food retailing, retailing in general, some healthcare segments, landscaping, some construction segments, temporary-help agencies, daycare/homecare, agriculture, janitorial services, garment manufacturing, and guard services.

 ♦   Following a noisy notice-and-comment period that ended in March, proposals that would essentially spell the end of the FLSA exemptions for companions and live-in domestic-service workers suddenly dropped from view as the election season commenced.  These provisions will probably be released in their final form in the not-too-distant future.

Another distinct possibility is the revival of the so-called "Right to Know" regulations, which USDOL said would require "notification of workers' status as employees or some other status such as independent contractors, and whether that worker is entitled to the protections of the FLSA."  USDOL further said that the proposal would "also explore requiring employers to provide a wage statement each pay period to their employees," apparently so as to convey to employees "how their pay is computed."  The reach of these provisions would likely be even broader than USDOL has so far disclosed.

 ♦   The "wage theft" movement toward increasingly-draconian penalties and punishments will move forward with renewed energy, especially at the state and local levels.  For proponents of these measures, wage-law violations are unrelated to the multi-jurisdiction, patchwork nature of differing, obscure, sometimes-conflicting, ambiguous and ill-defined, rapidly-changing requirements that are proliferating across the nation.  No, as this publication [Editor's Note:  Link Apparently Taken Down] illustrates, in their eyes employers are instead "dishonest", unscrupulous scofflaws who are "stealing" money from workers.  Employers who remain disengaged on this front and who acquiesce in these pejorative campaigns do so at their peril.

It has never been more important for employers to remain vigilant, informed, and assertive about all of these matters.  It is also essential that each employer ensure right now that it is in compliance with all applicable wage-hour requirements.

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Readers will recall that, in 2010, the U.S. Labor Department announced that it would pay particular attention to multi-party business arrangements that it sees as obscuring or diluting responsibility for complying with the federal Fair Labor Standards Act.  USDOL's "fissured industry" enforcement effort seeks to tie together all of the participants, including subcontractors, vendors, suppliers, and the like.

Recent developments underscore that the Wage and Hour Division is indeed looking for opportunities to assert that different entities are sufficiently integrated with one another to make each participating business a joint-employer.  The Division is also making good on its warning that it would "bring pressure to bear" upon brand owners to induce them to insist upon and monitor FLSA compliance by others with whom they share a business relationship.

Joint-Employment Allegations

USDOL recently sued DirecTV, one of DirecTV's service contractors, and the contractor's owner for alleged FLSA violations.  The lawsuit contends that installers compensated on a piece-rate basis received less than the minimum wage, were not paid overtime premium, and were not paid the FLSA-required wages for all hours worked.  USDOL asks for back-wages, an equal amount as liquidated damages, and a court injunction requiring future compliance.

The Wage and Hour Division also claims that these alleged violations were "willful".  It intends to assess civil money penalties (which can be as much as $1,100 for each violation) against the defendants.  A Division official stated that, "[The defendants] were found to be responsible, as joint employers, for underpaying these employees.  The bottom line is that subcontracting labor does not absolve an employer from responsibility for compliance . . .."

Pressure To Oversee Compliance

A different approach is exemplified in connection with USDOL's having recovered more than $200,000 in FLSA back wages for the employees of five vendors and staffing agencies working at Gaylord Hotels' Texan Resort and Convention Center.  While there is no indication that the Wage and Hour Division asserted an FLSA joint-employment as to Gaylord, the Division nevertheless prevailed upon the company to agree to:

♦    Require vendors and suppliers to enter into FLSA compliance agreements,

♦    Provide compliance information to vendors and suppliers, and

♦    Maintain a toll-free complaint hotline.

The Division has earlier expressed its willingness to engage in adverse publicity and to work in conjunction with advocacy or consumer groups if it feels that this is warranted.  Reports do not indicate whether these prospects played a role here.

As these scenarios demonstrate, an employer could find itself embroiled in USDOL enforcement efforts initially undertaken against another participant in a collaborative business activity.  This is especially possible in targeted areas like construction; retailing, services, and manufacturing arrangements involving a variety of contractors or subcontractors; food retailing; and the hospitality industry.

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The scope of potential punishments in federal Fair Labor Standards Act lawsuits brought by the U.S. Labor Department apparently is being limited only by the imaginations of its lawyers.  A recent consent judgment against an operator of residential-care facilities for developmentally disabled adults suggests that employers should not be surprised by unorthodox USDOL settlement demands.

The court order agreed to in Solis v. Jasmine Hall Care Homes contained terms requiring the defendants to pay $850,000, to comply with the FLSA in the future, to accept particular interpretations of relevant FLSA principles, and to produce upon demand whatever documents USDOL decides to "request".  These provisions are within the reasonable parameters of FLSA enforcement.

Beyond The Pale

However, a provision entitled, "Surrender of License Upon Adjudicated Violation" obligates Jasmine Hall and its owners to "surrender their care home operating license if any of them or any entity they own or control is adjudicated in a final, enforceable judgment to be in violation of any state or federal minimum wage or overtime law . . . in any proceeding before a state or federal court or any state or federal administrative tribunal . . .."  Moreover, the provision says that "[USDOL] may intervene and participate in any proceeding in which Defendants' licensing status is at issue . . . so that it may raise any wage and hour concerns or objections that it may have."

This is remarkable for a number of reasons, including that:

♦   Nothing in the FLSA calls for or so much as even contemplates compelling an employer essentially to go out of business as a remedial measure;

♦   A triggering violation will not be limited to one involving the FLSA but could instead arise under a state law as to which USDOL has no enforcement authority whatsoever;

♦   Presumably, license surrender will be necessary no matter how trivial, arcane, isolated, or unintentional a violation might be; and

♦   USDOL is prepared to insert itself into future state- or local-level license proceedings to "raise" unspecified varieties of "wage and hour concerns or objections" without any express limitation to those involving laws USDOL enforces, or indeed to any particular laws at all.

Of course, the defendants need not have agreed to this provision.  They could have chosen instead to litigate into the indefinite future to an uncertain conclusion against an opponent with essentially unlimited resources.

What Might The Future Hold?

If USDOL settlement demands are to be unconstrained by the remedies provided for in the FLSA, then any number of interesting conditions could be in the offing.  For instance, might another ultimatum require:

♦   An employer to seat a USDOL-specified representative on its Board of Directors?

♦   A resignation from or the termination of one or more management members?

♦   The forced divestiture of an individual's ownership interest in a business?

At some point, USDOL's proposed terms could become so harsh, oppressive, and disconnected from the FLSA that simply letting the lawsuit move forward to an expeditious ruling on the merits might be a preferable alternative.

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For at least three years now, the U.S. Labor Department and the U.S. Internal Revenue Service (along with a host of analogous state and local agencies) have been on the alert for instances in which workers are erroneously considered to be independent contractors rather than employees.  The popular euphemism for these situations is "misclassification" (although this term is also used to describe the different problem of incorrectly treating employees as being exempt from minimum-wage and/or overtime requirements).

What's The Big Deal?

In significant part, this increased attention began with a straightforward motivation:  Government revenue collections have steadily declined in the sluggish economy, so officials at all levels are keenly interested in plugging any leaks.  As USDOL recently put it in a press release, "misclassification generates substantial losses to the U.S. Treasury and the Social Security and Medicare funds, as well as to state Unemployment Insurance and workers' compensation funds."

For its own part, USDOL has been hard at work ferreting-out "misclassification" under the Fair Labor Standards Act and the similar federal wage laws it enforces.  In just the last few weeks, for example, it has announced:

♦   A $105,000 overtime assessment against a Texas employer that had considered workers to be independent contractors for their first 90 days with the company; and

♦   A $101,000 demand against a Virginia employer that had considered individuals performing work on a government-funded construction contract to be independent contractors or to be subcontractors.

Numerous other USDOL "misclassification" investigations, and many private FLSA lawsuits challenging independent-contractor status, are underway across the country.

As we have also highlighted, some states have joined forces with USDOL.  And while North Carolina has not yet signed-on as far as we know, Gov. Beverly Perdue's August 22 Executive Order creating a "Task Force on Employee Misclassification" suggests that it might soon do so.  Among other things, the Task Force is responsible for:

♦   Identifying sectors of the economy where this occurs most frequently,

♦   Encouraging communication and cooperation between relevant state agencies,

♦   Considering regulatory changes likely to enhance legal enforcement efforts, and (perhaps most significantly),

♦   Identifying "ways to increase the filing of complaints by employees and other members of the public against noncompliant employers . . .."  [Emphasis added].

It's Smart To Think Ahead

All of this demonstrates yet again that organizations whose operating models are built even in part upon "contract labor", "freelancers", the oxymoronic term "contract employees", or independent contractors by any other name simply cannot afford to ignore the current enforcement climate.  The wise course is to evaluate without delay what the prospects are that such workers can be shown to be true independent contractors under each legal test that might be applied.

Perhaps the very first question should be whether the circumstances of the arrangement lend themselves to independent-contractorship at all.  In some situations, it will be unlikely that this status could be successfully defended, taking into account such things as the organization's need to control the worker's activities and all the other operational and managerial considerations involved in meeting the organization's objectives.

Even if the chances seem more favorable, management will want to be sure that is has done everything it can to strengthen its position.

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Recurring wage-hour issues tend to arise during the recovery from a natural disaster.  We posted the following item last year in connection with Hurricane Irene, and the points are equally relevant this time around:

*     *     *

Affected employers will no doubt have a variety of wage-hour questions in the aftermath of Hurricane Irene.  The number and scope of the issues raised might well be practically endless.  In this post, we address in very general ways the federal Fair Labor Standards Act topics that experience suggests will be among the most-pressing.

◊   What do we do about lost time records for work already performed but not yet paid?

If the only records of hours worked are lost or unusable, then there is no perfect solution.  Re-create the most accurate accounting you can under the circumstances.  Perhaps the preferred approach is to ask each employee to make the best-possible estimate of his or her hours worked. You should obtain the employee's written acknowledgement of his or her best recollection and should include the employee's authorization allowing later corrections in worktime and pay should more accurate hours-worked information become available.

◊   How do we track employees' worktime without our electronic/computerized time clocks?

Employees may record all hours worked by using handwritten timesheets.  To ensure accuracy, each employee should enter his or her own time and should record the actual times when the employee's work starts and stops each workday.

◊   As we recover, must we keep paying overtime on top of our other burdens?

At this time, there is no FLSA "emergency" exception that relieves the obligation to pay FLSA-required wages.  Employees subject to the FLSA's overtime provision must receive overtime premium at a rate of at least 1.5 times their regular rates of pay for all hours worked over 40 in the designated seven-day workweek.

If employees are covered by a collective bargaining agreement, it might contain additional overtime provisions requiring more than the FLSA does.  Perhaps the terms of the agreement relax those requirements in emergencies.  However, a collective bargaining agreement cannot override the FLSA's requirements.

◊   Can an employee volunteer to perform recovery services for us without pay?

The FLSA does not permit employees to "volunteer" unpaid time to the employer under any but the narrowest of circumstances.  For example, if a manufacturing facility sets up a hotline or makes other arrangements to provide a clearinghouse for information about the status of the workplace and employee reporting times, non-exempt employees volunteering to perform such services are engaged in compensable hours worked for FLSA purposes.  Employers considering any kind of unpaid "volunteer" services by their employees should evaluate the legality of doing this carefully and in advance.

◊   Must we keep paying employees who are not working?

Under the FLSA, for the most part the answer is "no".  FLSA minimum-wage and overtime requirements attach to hours worked, so employees who are not working are typically not entitled to the wages the FLSA requires.

One possible FLSA-related exception is for employees treated as FLSA-exempt whose exempt status requires that they be paid on a "salary basis".  Generally speaking, if such an employee performs at least some work in the designated seven-day workweek, the "salary basis" rules require that he or she be paid the entire salary for that particular workweek.  There can be exceptions here, too, such as might sometimes be the case where the employer is open for business but the employee decides to stay home for the day.

Also, non-exempt employees paid on a "fluctuating-workweek" basis under the FLSA normally must be paid their full fluctuating-workweek salaries for every workweek in which they perform any work.  There are a few exceptions, but these are even more-limited than the ones for exempt "salary basis" employees.

Of course, an employer might have a legal obligation to keep paying employees because of, for instance, an employment contract, a collective bargaining contract, or some policy or practice that is enforceable as a contract or under a state wage law.

◊   What can we do about charging missed time to vacation and leave balances?

The FLSA generally does not regulate the accumulation and use of vacation and leave.  The "salary basis" requirements for certain FLSA-exempt employees can implicate time-off allotments under various circumstances, some guidance on which the U.S. Labor Department has provided in opinion letters accessible here and here.

Again, however, what an employer may, must, or cannot do where paid leave is concerned might be affected by an employment contract, a collective bargaining contract, or some policy or practice that is enforceable as a contract or under a state wage law.

◊   When is travel time "hours worked" for purposes of computing FLSA wages due?

FLSA travel-time "rules" are not seamless, up-to-date, or necessarily logical or consistent with common sense.  The best-known ones are that:

•   Normal commuting between home and work typically is not considered to be hours worked, and

•   Travel between one assignment and another during a workday typically is hours worked.

However, even these principles are subject to exceptions and elaboration.  The best starting point is to consider each scenario an employer faces under the U.S. Labor Department's basic interpretations on travel time.  They are compiled at 29 C.F.R. §§ 785.33-785.41 and may be accessed here.

Remember that other requirements, such as those applying to government contractors or subcontractors and those of states or other jurisdictions, can also be relevant to these questions.

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The longstanding general view has been that wage claims under the federal Fair Labor Standards Act may be reliably settled only:

♦   Under the U.S. Labor Department's supervision, or

♦   Upon the dismissal of a lawsuit in which a court determines that there has been a fair and reasonable resolution of a bona fide FLSA dispute.

Even so, there has always been some reason to think that it might be possible to enter into binding private agreements to settle FLSA claims relating to what the U.S. Supreme Court referred to in the 1940s as "bona fide disputes as to liability."  The Fifth Circuit U.S. Court of Appeals (with jurisdiction over Louisiana, Mississippi, Texas) has now provided cause for optimism that courts might indeed come to embrace this principle, at least in the right circumstances.

Technicians Bound By Accepting Compromise

Martin v. Spring Break ’83 Productions, L.L.C. dealt with a claim brought by film-industry technicians seeking additional compensation for hours they allegedly had worked.  A union representative investigated their grievances and felt that it was impossible to determine one way or the other whether the employees had actually worked the hours asserted.  The employer and the union reached a settlement acknowledging the continued existence of a dispute but calling for the technicians to receive payments computed for a compromised amount of alleged worktime.

The Fifth Circuit ruled that the technicians had entered into a binding satisfaction of their FLSA claims by accepting payment under the agreement.  The court observed that the employees' FLSA rights themselves had not been waived or otherwise bargained away.  Instead, the technicians had received payments in amounts that were based upon the application of the FLSA's principles to the number of hours worked agreed to in the settlement.  In the court's view, "the payment offered to and accepted by [the technicians], pursuant to the Settlement Agreement, is an enforceable resolution of [their] FLSA claims predicated upon a bona fide dispute about time worked and not as a compromise of guaranteed FLSA substantive rights . . .."

Ruling's Effect Is Limited

This decision is good news, but employers should not take it to mean that private waivers or releases of FLSA claims will now be routinely and broadly enforced or observed.  For one thing, while other jurisdictions might decide to follow the Fifth Circuit's lead, only time will tell whether and to what extent this will happen.  It is also questionable whether the U.S. Labor Department will defer to such settlements.

Moreover, the court did NOT rule that employees can privately waive or release the legal rights provided for in the FLSA.  For example, a court is highly unlikely to enforce an agreement:

♦   Calling for a non-exempt employee to receive FLSA overtime pay for only 50% of his or her accurately-recorded hours worked over 40 in a workweek,

♦   Acquiescing in an FLSA overtime multiple of, say, 1.25 (instead of 1.5) for a non-exempt, hourly-paid employee's hours worked over 40 in a workweek, or

♦   Based upon a construction electrician's supposedly having qualified for the FLSA's "professional" exemption.

The surrounding circumstances in Martin are also relevant.  Among other things, there was an actual, ongoing, good-faith dispute about the relevant facts of the technicians' claims; the technicians had already consulted with counsel and were aware of their FLSA rights; and they had even gone so far as to file a state-court lawsuit prior to having accepted their payments.

We will of course be following future developments in light of the Martin ruling.

UPDATE 10/31/12:   The technicians have now asked the U.S. Supreme Court to review the Fifth Circuit's ruling.  Among other things, their petition argues that the Fifth Circuit's having enforced an out-of-court settlement not supervised by the U.S. Labor Department conflicts with the 1982 decision by the Eleventh Circuit U.S. Court of Appeals (with jurisdiction over Alabama, Florida, and Georgia) in Lynn's Food Stores, Inc. v. U.S., 679 F.2d 1350, such that the Supreme Court should step in to resolve the question.

UPDATE 01/07/13:   The U.S. Supreme Court has declined to review this case, so the Fifth Circuit's decision stands.  This action does not mean that the Supreme Court approves of or has ratified the decision or has otherwise expressed any opinion about the ruling.

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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).

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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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