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FLSA Provision Covering Break Time for Nursing Mothers

July 19, 2010

Our Anaheim, California Wage and Hour Lawyers have been following the recent press release by the U.S. Department of Labor Wage and Hour Division, that details a new provision covering working mothers and breastfeeding in the Patient Protection and Affordable Care Act (PPACA). The PPACA was recently signed into law in March of this year, and amends Section 7 of the Fair Labor Standards Act (FLSA).

According to the federal provision, employers must provide mothers who are nursing with both the space and the time to lactate in the workplace. The law states that any time an employee needs to breastfeed, for one year after the birth of the child, the working mothers must receive a reasonable length of unpaid break time, as well as a private setting other than a bathroom for their breastfeeding needs.

The DOL Wage and Hour Division fact sheet states that employers are required, under law, to provide breaks for nursing mothers that are reasonable amounts of time, as frequently as needed, with the duration of each break varying, in a functional space. Even if seemingly private, bathrooms are not permissible spaces under the Act. By law, the space must be available when needed, and must be private and protected from public or colleague intrusion.

The FLSA break time requirement does not preempt any State laws that provide more employee protection, including compensated break time for employees who are exempt, or any breastfeeding time provided after the child's first year. As our attorneys reported in a recent blog, since 2002, By law, California employers must provide reasonable break time for California employees to breastfeed their children, as well as lactation accommodation. A mother also has the right to breastfeed her child in any public or private location.

Only employees who are not exempt from the FLSA's overtime pay requirements are entitled to the nursing breaks. The DOL states that while employers are not required to provide nursing breaks to mothers who are exempt from the overtime pay requirements of Section 7 under FLSA law, they may be required to provide nursing breaks under State laws.

The FLSA does not require employers to compensate mothers for nursing breaks, however when employees are already providing paid breaks, an employee who uses that break time to nurse must be compensated in a similar way that employees are paid for regular break time. The FLSA also requires that the employee must be completely free of all work duties, or else the break time must be compensated as work time.

U.S. Department of Labor News Brief, July 15, 2010

DOL Fact Sheet #73: Break Time for Nursing Mothers under the FLSA

Related Web Resources:

U.S. Department of Labor: Wage and Hour Division (WHD), Fair Labor Standards Act (FLSA)

The Department of Fair Employment and Housing (DFEH)

California Fair Employment and Housing Commission (FEHC)

California Laws Related to Breastfeeding, California Department of Public Health

California Labor Code Section 1030-1033