Are Employers Screwing Up the FLSA’s Lactation Mandate? Probably Not.

At Business Insurance, Judy Greenwald quotes an attorney who believes that employers are doing an inadequate job of accommodating employees’ lactation requests. The article discusses a recent Freedom of Information Act request, in which the Department of Labor disclosed that it has conducted 54 investigations into claims of inadequate lactation accommodations between the date the Patient Protection and Affordable Care Act took effect, March 23, 2010, and June 11, 2012. Those investigations, in turn, uncovered 36 violations of the law. Based on that data, the article concludes that “the Labor Department is paying attention to and is prepared to enforce” the Fair Labor Standards Act’s lactation mandate, and that “employers either are not aware of their obligations, or do not fully understand them.”

I wholeheartedly disagree. A little more than a year ago, I ran a post on this same issue. At that time, I pointed out that the Labor Department had only cited 23 companies, or 0.023 percent of all companies with 100 or more employees. Now, with an additional six months of data, the number of citations has jumped by 13, from 23 to 36.

By comparison, according to the Equal Employment Opportunity Commission’s recently updated charge filing statistics, individuals filed 99,412 separate discrimination charges during fiscal year 2012. In other words, discrimination complaints with the EEOC in the last year outpaced lactation complaints with the Labor Department in the last two and a quarter years by a factor of 1,841.

What is the reasonable explanation for this small number of lactation-rights complaints? Companies are not denying new moms the right to lactate in the workplace. Anecdotally, I have never come across the issue with a client in my 15+ years of practice, and I know of no colleague who has either. You would think that if this problem exists, someone would have dealt with it.

Nevertheless, if you are on the fence about your obligations under this provision of the Patient Protection and Affordable Care Act, here is what you should know:

• If you have 50 or more employees, you are required to provide a reasonable break time for an employee to pump breast milk. If you have fewer than 50 employees, you can deny the break time, but only if would pose an undue hardship, which the Labor Department considers to be a significant difficulty or expense.
• Employers are not required to compensate nursing mothers for breaks taken to expressing milk. The FLSA’s normal rules that govern unpaid versus paid breaks still apply. Thus, a break should be paid if it lasts 20 minutes or less and falls during an employer’s customary break time.
• In addition to adequate break time, an employer must also provide an appropriate lactation space. The space doesn’t have to be permanent. Any space temporarily created or converted into a space for expressing milk or made available when needed by a nursing mother is sufficient, if the space is shielded from view, free from intrusion from coworkers and the public, and suitable for lactation. The only room that is not appropriate is a bathroom.

If you know of a company that has denied an employee the right to lactate, please either leave a comment below, or tweet me. I would like to know if there is any anecdotal support for the idea that companies are dropping the ball on this issue.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.