Guidance for Employers on Mandatory Break Time for Nursing Mothers under the FLSA

By Sheri D. McWhorter

The health care reform legislation, passed March 23, 2010, amended federal wage and hour law, specifically, the Fair Labor Standards Act (”FLSA”), and effective immediately, requires that employers provide unpaid break time for nursing mothers to express their breast milk.  On July 15, 2010, the U.S. Department of Labor issued guidance for employers on the mandatory break time and the specific requirements of the FLSA amendment.

Under the new requirements, employers must provide a reasonable amount of break time for a non-exempt employee to express breast milk for her nursing child for up to one (1) year after the birth of the child.  The employee must be allowed a break each time the employee needs to express the milk, as frequently as needed.  The legislation recognizes that the frequency of the breaks, as well as the duration of each break, will likely vary, according to the needs of the nursing mother. 

Employers must provide the nursing employee with a private place to express the milk – and that place cannot be a bathroom.  The place provided must be “shielded from view and free from intrusion from coworkers and the public.”  A bathroom, even if private, is not a permissible location.  The location provided must be functional as a space for expressing breast milk.  If the space is not dedicated to the nursing mother’s use, it must be available when needed.  A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public.

Employers are not required under the FLSA to pay the nursing mothers for breaks taken for the purpose of expressing milk.  However, where employers already provide paid 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.  Also, remember that breaks of 20 minutes or less for non-exempt employees must be paid.  At present, the new regulations on unpaid breaks for nursing mothers appear in possible conflict with this provision of the FLSA, at least to the extent the nursing mother takes a break of less than 20 minutes to express her milk.  To date, no guidance or clarification has been issued by the DOL on this potential conflict.

In addition, the FLSA’s general requirement that the employee must be completely relieved from duty will continue to apply.  Where the nursing mother is not completely relieved of duty during the break time, the employee must be paid. 

Only employees who are not exempt from the FLSA’s overtime pay requirements are entitled to breaks to express milk.  Although the legislation does not require the break time be allowed for exempt employees, recall that where an exempt employee does take a break, an employer may not reduce the salary of the exempt employee for the time spent on the otherwise “unpaid” break, because such a reduction would be inconsistent with and could jeopardize the employee’s exempt status.

Employers with fewer than 50 employees are not subject to the FLSA break time requirement if compliance would impose an undue hardship.  “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 employer, at all worksites, are counted when determining whether the 50 employee threshold is met, and thus, whether the exemption may apply.

Twenty-four states, including California, Georgia, Illinois, and New York, as well as the District of Columbia and Puerto Rico, (but not Florida), already require employers, under state law, to provide reasonable break time for nursing mothers.  The FLSA requirement of break time for nursing mothers to express breast milk does not preempt state laws that provide greater protections to employees (for example, providing paid break time, providing break time for exempt employees, or providing break time to express milk for a longer period than 1 year after the child’s birth).

Thus far, the DOL has not provided any guidance on the extent of any penalties that will be imposed against employers who fail to comply with the new break time provisions.

Although not expressly required by the FLSA amendment, employers should consider including a policy in their employee handbooks regarding break time for nursing mothers.

About the Author
Sheri D. McWhorter, JD, SPHR is a Florida Bar Certified Specialist in Labor & Employment Law, and is President and Managing Shareholder of WorkplaceLegal SolutionsSM, Law Offices of Sheri D. McWhorter, P.A.  With offices in St. Petersburg and Tampa, WorkplaceLegalSolutions provides client focused employee relations counseling and proactive employment law solutions to businesses and non-profits throughout Florida and the greater Tampa Bay area.  For assistance, please call 866. 829.1883.