Break Time for Nursing Mothers under the FLSA

The US DOL has issued a fact sheet to address the break time requirement for nursing mothers in the Patient Protection and Affordable Care Act (PPACA) which took effect on March 23, 2010 as an amendment to Section 7 of the Fair Labor Standards Act (FLSA).

The amendment requires an employer to allow "reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk." The employer must provide "a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk".

Only employees who are not exempt from the FLSA’s overtime pay requirements are entitled to breaks to express milk. While employers are not required under the FLSA to provide breaks to nursing mothers who are exempt from the overtime pay requirements of Section 7, they may be obligated to provide such breaks under State laws.

The law is vague as to how many and how long these breaks are permitted since the language of the statute is “reasonable break time” to express the breast milk “each time the employee has the need to do so.” These breaks are at the prerogative of the mother. The mother is not required to take these breaks.

These rest breaks need not be compensated, under the Act. However, other federal legislation requires employers to compensate employees for “rest periods of short duration running from 5 minutes to about 20 minutes…” Employers with fewer than 50 employees are not subject to the FLSA break time requirement if compliance with the provision would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business. All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.

Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time. In addition, the FLSA’s general requirement that the employee must be completely relieved from duty or else the time must be compensated as work time applies.

In addition, the “lactation room” must be a place “other than the bathroom that is shielded from view and free from intrusion from coworkers and the public.” The Department of Health and Human services states this room may be as small as 4 feet by 5 feet to comfortably accommodate a chair and table or shelf.

The area need not be a room at all either, with several employers using privacy screens in less traveled areas of the office. While a possible solution, this is definitely not the best, as it does not allow for restricted access via lock and key to prevent accidental intrusion.

Employers should locate private areas other than the bathroom that could operate as a “mother’s room.” Having a lock or some other way to prevent accidental intrusion is recommended. An unused office is a good option.

If there are multiple mothers or the room serves as a multipurpose room, a “reservation” schedule should be organized to best make use of the space and prevent conflicts.

Wage & Hour and Multiple Locations

If your company maintains more than one location, such as multiple retail store locations, chances are you maintain a manager or store supervisor that oversees each location's operations. In tough times like now, many retailers staff very conservatively. A supervisor may be one of two employees staffing a retail store. While the supervisor may direct and control 1 or 2 other employees, she may also perform the same/similar duties as her subordinates, such as ringing up customers at a cash register.

The federal Fair Labor Standards Act (FLSA) determines whether a supervisor is exempt from overtime and is not based on what title the company uses or if the person is salaried. Whether or not an employee is exempt from overtime depends on that individual's job duties and the proper application of FLSA regulations.

A store manager at one location may be exempt from overtime, while a manager at another may not. The difference is sometimes subtle and difficult to understand under the FLSA. The question arises when when managers perform many non-managerial tasks: can they be exempt from overtime?

Store managers generally are not exempt from overtime where they do not customarily and regularly direct the work of two or more other full-time employees or the equivalent. Whether a manager's primary duty is "management" under the FLSA is based on all the particular facts and circumstances. Recent cases under the latest FLSA regulations, define "primary duty" as the principal, main, major or most important duty that the employee performs. The determination must be made with a view toward the character of the employee's job as a whole. So, an employee performing some nonexempt work can still be exempt if her primary duty is managerial in nature.

With the increase in wage and hour class-action suits, you should be very careful when making a determination on the exempt status of management personnel. Your policies and procedures will help define the scope of duties and managerial responsibilities, but remember, the FLSA governs.

Is Your Company Wage & Hour Compliant?

In case you thought that wages and hour cases were rare, think again. Through April 2008, almost 1,900 wage and hour cases had been filed in federal district courts. If this trend continues, the number of wage and hour cases will exceed 2007 levels. Plus, these figures do not include state court filings.

• How do you avoid wage and hour claims? Best practices to avoid such claims include:
• Auditing all positions classified as exempt from overtime.
• If you have not conducted an audit in the past few years, it's time for a follow-up review of lower level managers and supervisors should to ensure there have been no changes in duties.
• Making sure your company has adopted and published a "safe harbor" policy on deductions from salaried employees.
• Reviewing timekeeping policies to avoid or reduce the possibility of an employee claiming to have been working, eliminating such things as "standard" or "automatic" deductions for lunch, rounding hours, and similar practices.
• Reviewing policies and procedures to review deductions from wages and salaries to ensure that they comply with the minimum wage and overtime requirements of state and federal law.