Such Break Time Need Not Be Compensated The amendment does not require employers to pay the mothers for the breaks they take to pump, and it expressly provides an exception from compliance for employers with less than 50 employees who show that compliance would impose an undue hardship through significant difficulty or expense. 29 U.S.C. § 207(r)(2) & (3) (2010). "Undue hardship" will be measured in relation to the size, financial resources, nature, or structure of the employer’s business. Id.; U.S. Department of Labor Fact Sheet #73, "Break Time for Nursing Mothers under the FLSA," July 15, 2010, available at www.dol.gov/whd/regs/compliance/whdfs73.pdf. Also, as part of the FLSA, the amendment will only apply to non-exempt employees, which generally means hourly workers that are subject to overtime laws. 29 U.S.C. § 213(a) (2010). Exempt employees are salaried employees that are "exempt" from overtime laws. Id.
Amendments Do Not Preempt State Law While this federal law is a major advancement for breastfeeding advocacy groups as well as new and nursing mothers, there are 24 states plus the District of Columbia and Puerto Rico that already have laws protecting the right to breastfeed in the workplace. This new federal law will have no effect on those state laws that provide greater protection and expressly does not preempt them. 29 U.S.C. § 207(r)(4) (2010).
Questions about Enforcement Although this new amendment took effect immediately upon President Obama’s signing the Act, the rules for enforcement are not yet in place. The Department of Labor is or will be in the process of creating an enforcement plan. This enforcement plan should include not only the means of enforcement but also penalties for non-compliance and remedies for those who are denied the accommodations provided for in the Act.
Guidance about Compliance On July 15, 2010, the Department of Labor released Fact Sheet #73: Break Time for Nursing Mothers under the FSLA. This fact sheet, although not legally binding, serves as guidance on how to comply with the new law. First, the Department of Labor provides that a reasonable amount of time is to be provided to express milk "as frequently as needed by the nursing mother" U.S. Department of Labor Fact Sheet #73, "Break Time for Nursing Mothers under the FLSA," July 15, 2010, available at www.dol.gov/whd/regs/compliance/whdfs73.pdf. The fact sheet warns that often the frequency and duration of the breaks will likely vary with the individual circumstances. Id.
Next, the Department of Labor provides that the location the employer provides must be "functional as a space for expressing breast milk." Id. This does not require a permanent space; a temporary one will do as long as it is available when the nursing mother needs it and it is shielded from view and free from intrusion. Id.
Another question that arose after the enactment of this new law (due to the act not requiring paid breaks) was how it applies when the employer already provides workers with paid breaks under the Code of Federal Regulations. 29 C.F.R. § 785.18 (2010). The fact sheet addresses this question by providing that if a nursing mother uses already-provided break time to express milk, then she must be compensated just as other employees are compensated for their breaks. Id.
Although not all questions regarding this new federal law have been answered, employers should still do their best to comply with the new provisions.