By: Robert W. Small
Most Employers covered by the Fair Labor Standards Act (and that is virtually all Employers) are aware of their minimum wage and overtime obligations, although there can be some tricky issues involving computation of compensable time and the amount of wages due. Many Employers, however, are unaware that the FLSA (as amended in 2010 by the Patient Protection and Affordable Care Act) also requires Employers to provide time and space for nursing mothers to express breast milk.
What are an Employers obligations?
Employers must provide a private space that is other than a bathroom and “reasonable break time” for nursing mothers to express milk for her child for one year after birth and must do so “each time” the employee has a need to do so. Employers with fewer than 50 employees are not subject to this obligation, but only if complying with it would pose an undue hardship which will be measured by the Employer’s size, financial resources and the nature of its business.
Although there is little case law on what constitutes an undue hardship, it is not likely to be a test that many Employers will be able to satisfy because the cost and inconvenience of complying with the law, in most case, will be negligible. The space provided need not be dedicated exclusively to that purpose, but it must be private, including from other employees, when in use for that purpose, and must be available when needed. In calculating the 50 employee coverage requirement, employees from all of the Employer’s locations are counted.
Must nursing mothers be paid for the time they are expressing milk?
The short answer is “no.” If, however, an Employer provides paid rest breaks for employees it must pay a mother who uses such a break for expressing milk on the same basis as other employees are paid for such breaks.
Are all employees covered?
Again, the short answer is “no.” Only non-exempt employees are covered by this provision of the FLSA. Employers should be aware, however, that many states and municipalities have adopted similar requirements, some of which apply to all employees. The more stringent requirement of such laws would form the “floor” of an Employer’s obligation with regard to such things and what employees are covered; time and facilities which must be provided; and, payment obligations for time spent expressing milk.
What are the penalties for non-compliance?
An employee who is not properly paid for time expressing milk, who is terminated for taking time to do so or is retaliated against for filing a complaint or acting as a witness in a proceeding brought for a violation of these obligations may file a complaint with either the Department of Labor or in federal court. Damages can include lost wages and liquidated damages in an equal amount. Employers also will be subject to reinstating a terminated employee and for attorneys’ fees and court costs. Applicable state and municipal laws might offer additional remedies.
If you have any questions, or would like additional information, please contact Bob Small, Partner in Reger Rizzo & Darnall’s Employment Practices Group, at 215.495.6541, or via email at firstname.lastname@example.org.
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