Congress amended Section 7 of the Fair Labor Standards Act (FLSA) to provide a break time requirement for nursing mothers to express breast milk. In December 2010, the U.S. Department of Labor (DOL) issued a preliminary interpretation, providing some guidance some guidance as to the application of the rules.

California law (Labor Code Sections 1030-33) has required employers to accommodate working mothers’ need to express breast milk since 2002. Employers must comply with both laws, following the provision that is more generous to employees. Here are the key differences between the federal and state requirements.

Covered Employees

The federal law requires employers to provide nursing mothers with break time. However, although the DOL encourages employers to offer exempt employees break time to express breast milk, the law does not require them to do so. California law, in contrast, requires employers to provide lactation-related breaks to all employees, regardless of exempt status.

Amount of Time

Federal and California law are similar with respect to the amount of time employees may use for lactation. The employer should provide the nursing mother with a “reasonable” break. The law presumes nursing mothers will need two to three breaks during an eight hour shift to express milk. The length of time will vary, depending on the woman and the facilities available to her. Employers determining what is “reasonable” should consider factors such as: (1) the time needed to walk to and from the lactation space and the wait, if any, to use the space; (2) whether the employee has to retrieve her pump and supplies from another location; (3) whether the employee has to set up her own pump or if it is provided for her; (4) the efficiency of the pump; (5) the facilities available to the employee to ensure the cleanliness of the pump; and, (6) the time it takes the employee to store the milk.

Restrictions on Use of Time

Federal law limits the lactation accommodation requirement to one year after the child’s birth. California law does not include that limitation.

California law requires employees to try scheduling lactation breaks so they run concurrently with the paid rest periods that California’s wage orders mandate for all non-exempt employees. Federal law does not mandate paid rest periods and, therefore, does not address the relationship between generally applicable rest periods and lactation accommodation. The FLSA merely requires employers to permit a lactation break “each time such employee has need.”

Paid or Unpaid

As stated, California law mandates paid rest breaks for all non-exempt employees. Employees using paid rest periods to express breast milk naturally must be paid. But if the employee’s lactation break either runs over the legally required break time or is taken at a different time, the additional break time is uncompensated. Because federal law does not require rest breaks, the lactation breaks are unpaid.

If the employee is not completely relieved from duty while on lactation break, the break time should be compensated under both federal and California law.

Location

In California, an employer must make “reasonable efforts” to provide a room or other location, other than a toilet stall, in close proximity to the employee’s work area, and ensure the location is “shielded from view.” Under federal law, the location should also be “free from intrusion.”

Exceptions

California law requires all employers to provide lactation breaks unless it would “seriously disrupt” the operations of the employer. But under federal law, if an employer has fewer than 50 employees and would experience an “undue hardship” in the course of providing the breaks, based on weighing the “significant difficulty or expense” of providing breaks against the “size, financial resources, nature, or structure” of the business, the employer may be exempt from providing the lactation breaks.

Therefore, California employers with 50 or more employees must provide lactation breaks that comply with federal law, even if those breaks “seriously disrupt operations.” If the California employer has fewer than 50 employees, it must provide lactation breaks unless it can show doing so would create an “undue hardship.”

Penalties/Enforcement

California law imposes a $100 civil penalty per violation of the lactation accommodation statute. The Labor Commissioner may issue a citation to recover the penalties, or the employee can pursue remedies under the Private Attorney General Act. As of January 1, 2013, AB 2386 revised the FEHA definition of “sex” to include breast feeding. As a result, a nursing employee can also file a discrimination claim if the employer takes adverse action against a nursing mother. It is uncertain whether violation of the Labor Code’s lactation accommodation provisions will constitute “discrimination” under the Fair Employment and Housing Act.

Thus far, federal law does not specify penalties for failure to provide lactation breaks. However, the Department of Labor may provide guidance regarding enforcement when it issues final regulations.

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