While the most recent change to the Fair Labor Standards Act (FLSA) and the attention it may receive might seem small in comparison to Health Care Reform, the FLSA Amendment is significant. The Amendment, which now provides break time to nursing mothers, imposes a new requirement under the FLSA.
Currently, the FLSA does not require employers to provide rest breaks or meal periods to employees. Generally, rest break requirements are the subject of state regulation, and various states do require such breaks. Until this amendment, if rest breaks were not required by state law, then whether they were provided was a matter of agreement between the employer and employee. The amendment to the FLSA, 29 U.S.C. section 207(r)(1), changes that. The amendment will require all employers subject to the FLSA to provide rest breaks to mothers who wish to express breast milk.
The new law states that employers with fewer than 50 employees are not required to provide the breaks “if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.” Use of the phrase “significant difficulty or expense” appears to place the burden on the employer to show that they cannot comply with the break requirements. As can be seen from litigation over similar language in other statutes, proving that providing a rest break creates a “significant difficulty or expense” is usually burdensome. In any case, employers with fewer than 50 employees are not exempt from the requirements; such employers merely may seek to rely upon on the “undue hardship” justification for not providing breaks.
Many states in the last decade, and several just in the last few years, have passed laws requiring employers to provide nursing mothers with reasonable break time and space to express breast milk. This amendment to the FLSA will not substantially affect employers operating in those states. And, as is often the case, where state law provides greater protections to employees, those laws must be followed.
The new FLSA amendment requires that women be provided time to express breast milk “each time” the employee has the need to do so. In general, mothers breastfeeding their infant(s) need to express breast milk approximately two to three times during the work day for approximately 15-20 minutes per session, but this varies by individual and time of day. In addition to providing the break time, employers must now also provide a place, other than a bathroom, that is private and free from intrusion from coworkers and the public for mothers to express breast milk. In establishing a reasonable amount of break time, employers should consider the time it will take mothers to travel to the designated area for pumping breast milk.
The amendment is not without some conflict. While there are federal regulations regarding rest breaks that indicate “rest periods of short duration, running from five minutes to about 20 minutes, are common in industry. ....[and] must be counted as hours worked,” 29 C.F.R. Section 785.18, the more specific provision of the FLSA amendment states that “an employer shall not be required to compensate an employee receiving reasonable break time.” Reasonable break time is yet to be defined. Whether the breaks must be paid and what portion, if any, must be paid may be dependent on the type of employee (exempt versus non-exempt), state law requirements on breaks, and other considerations particular to an employer’s workplace. It is recommended that employers seek further guidance from counsel for a particular employee’s situation.
In recognition of the American Academy of Pediatrics’s recommendations on breastfeeding, the law requires these breaks to be provided for one year after a child’s birth.
The effective date of the amendment is March 23, 2010. It is unclear, however, what penalties will apply for noncompliance. The Department of Labor hopefully will issue regulations or guidance on several of these issues soon.
For more information on this new FLSA requirement, see Littler's ASAP: FLSA Amended to Require Breaks and Space to Express Breast Milk for Nursing Mothers by Julie Dunne and Mendy Mattingly.
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