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Employers' accommodation of breastfeeding requests inadequate: Attorney

Employers' accommodation of breastfeeding requests inadequate: Attorney

Employers are doing an inadequate job of complying with a federal Fair Labor Standards Act requirement that they accommodate employees' breastfeeding requests, a Freedom of Information Act request to the Department of Labor reveals, says an attorney.

The Patient Protection and Affordable Care Act, which was signed into law in March 2010, amends the Fair Labor Standards Act to require employers to provide reasonable break time and a place for nursing mothers to express milk for one year after their child's birth, according to a notice issued by the DOL in December 2010.

According to John E. Thompson, a partner with law firm Fisher & Phillips L.L.P. in Atlanta, the Department of Labor indicated in response to his information request that between March 23, 2010, and June 11, 2012, it concluded 54 investigations of the issue of whether employers are granting break time to employees so they can express breast milk for their nursing child.

The DOL found violations of the federal statute in 36 of these cases, including 29 violations involving a “failure to provide space” for the break, said Mr. Thompson, who wrote about the issue in his Wage and Hour Laws blog last week. Five violations involved a failure to provide break time.

The employers remedied the situation in all 36 cases, according to the DOL. In three of these cases, the employer provided back wages "to compensate the employee for compensation lost when her hours were cut or lost when she quit her job because of the failure to provide break time.” An employee was reinstated in one case, according to the DOL information.

Commenting on the DOL findings, Mr. Thompson told Business Insurance that the data provided by the DOL reveals that this amendment “is one the Labor Department is paying attention to and is prepared to enforce.”

“It's clear that, first, employees are becoming aware of their rights under this amendment; second, that the U.S. Labor Department is prepared to investigate and to seek remedies against employers who violate it,” and third, that employers either are not aware of their obligations, or do not fully understand them, Mr. Thompson said.


“The monetary exposure under this amendment is most likely to flow from taking an adverse action against somebody who assert their rights or who seeks to have the employer follow its duties under this amendment,” because it is not clear from the amendment itself that there is any monetary liability associated with it, he said.

Mr. Thompson said employers have “got to be sure they understand what the amendment requires them to do, and that they know about what kinds of space they'll provide, and how they'll otherwise carry out their obligations under the amendment.”

In addition, said Mr. Thompson, management at every level should understand they are not permitted to take an adverse action against an employee who “seeks to assert her right under this amendment. In other words, now is the time to think about employers' response” when workers request this kind of space and break, Mr. Thompson said.

Mr. Thompson warned that many states have their own breastfeeding requirements, many of which “are tougher on employers” than the federal statute, so “employers also need to make sure they know what these state requirements are and their employees' rights on this issue.”

The DOL's notice on the amendment is available here.