(June 4, 2015) Earlier this week, a federal court in New York considered whether an employee had a claim against her employer for allegedly violating protections given to nursing mothers through the Affordable Care Act, which amended the Fair Labor Standards Act (“FLSA”). While the court dismissed the employer’s argument that no private right of action exists, the case serves as a good reminder for employers to consider whether they may have obligations to provide breaks for female employees who wish to express milk for their infant children.

Employers are required to provide “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.” 29 USC § 7(r). Seems simple enough, right? But don’t make the same mistake that the employer allegedly did in New York. Employers are required to provide “a place, other than a bathroom, that is shielded from view and free from intrusion by coworkers and the public, which may be used by an employee to express breast milk.” 29 USC § 7(r). According to the complaint in New York, the employer told the employee after she returned from maternity leave that she could use the bathroom to express milk (a clear violation of the statute). Worse yet, when the employee objected, the employer allegedly told her to use the mailroom instead – which was certainly not free from intrusion from coworkers. After allegedly experiencing resistance from her employer, the employee began arriving late to work and taking additional time off so that she could express milk at home. If the employee prevails on her claim, she will be entitled to recover damages for this lost time, liquidated damages in the same amount, and, of course, her attorney’s fees and costs.

To be clear, employers don’t have to compensate non-exempt employees for these breaks, but reasonable break times must be provided. If you happen to be an employer with fewer than 50 employees, you may be able to opt out of this requirement but only if complying with the requirements would impose an undue hardship on your business. (Hint: Undue hardship is not an easy standard to meet, so think long and hard before you assume you can meet that standard.)

If you have new mothers in your workforce, take this opportunity to learn from the mistakes allegedly made by the employer in New York. Provide a private place for new mothers to express milk at reasonable times during the day for the first year of a child’s birth. Moreover, dust off your employee handbook or personnel manual to ensure your managers understand these legal requirements and employees know who to contact if they need break times to express milk. Please contact any member of our Human Resource and Employment Law Team if you have specific questions about these requirements.

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