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Court Interprets FLSA’s Break Requirement for Nursing Mothers

by Martin Salcedo, Esq. - The Human Equation on 1/29/2013
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The 11th Circuit Court of Appeals recently became the first federal appellate court to consider a significant, though rarely publicized, provision of the Affordable Care Act—the reasonable break time requirement for nursing mothers under the Fair Labor Standards Act (FLSA).

In Miller v. Roche Surety and Casualty, an employee sued her employer alleging a violation of her rights as a nursing mother under the FLSA. Under the FLSA, employers are required to provide reasonable break time for an employee to express breast milk for her nursing child. This requirement, which extends for 1 year after the child's birth, requires an employer to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public,” so that the employee may express breast milk.

In holding that the employer did not violate the FLSA’s reasonable break requirement for nursing mothers, the Court noted that the employee was free to take breaks as needed. These breaks were neither counted nor timed, and the employer never criticized the employee for taking a break. The Court also mentioned that the employee actually testified before the jury that she received necessary breaks to express breast milk.

The Court also found that the employer satisfied its obligation to provide a private place to express breast milk even though the employee elected to use her own office, where she taped folders to the window to protect her privacy. The employer made several nearby vacant, private offices available for the employee to express breast milk. According to the Court, the employee’s voluntary decision to use her own office rather than one of the vacant offices did not negate the fact that the employer made a private place available to the employee.

What should employers take away from the Miller case? That flexibility in accommodating a nursing mother’s needs to peacefully and privately express breast milk at work is the best way to satisfy the FLSA’s requirements.

When implementing a plan or procedure for complying with the FLSA reasonable break time requirement, employers should remember that:

  • Employers do not have to compensate an employee for any work time spent expressing breast milk.
  • Employers with fewer than 50 employees are not subject to the reasonable break requirement if compliance would impose an undue hardship by causing significant difficulty or expense.
  • If state law provides greater protections to nursing mothers than the FLSA, employers must follow the applicable state law.
  • If you would like to learn more about wage and hour requirements under the Fair Labor Standards Act, click here. If you would like information about insuring against FLSA claims, click here.

    The Human Equation prepares all risk management and insurance content with the professional guidance of Setnor Byer Insurance and Risk.

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