By Michael S. Mitchell, Fisher & Phillips, LLP
A
little-known section of the Patient Protection and Affordable Care Act,
otherwise known as “Obamacare,” obligates employers covered by the federal Fair
Labor Standards Act (FLSA) to allow a worker to take unpaid break time to
express breastmilk for her nursing child.
The requirement extends for a year after the child is born. Under the law you must:
- make available a suitable location (other than a bathroom) that is shielded from view and is free from intrusion by coworkers or the public;
- permit a “reasonable” break time under the circumstances; and
- let the worker take such a break each time she “has need” to express milk.
Sounds
Simple, But It’s Not
This all seems straightforward until one
begins to ponder such things as how many daily breaks are required, how much
time is “reasonable,” and so on. Many of the answers necessitate individualized
evaluations based upon a particular employee’s (and child’s) circumstances.
For example, the number and frequency of
breaks can depend upon a variety of things, such as the number of feedings in a
baby’s normal daily schedule, the impact of a baby’s age upon feeding needs,
and whether the baby is eating solid food. The U.S. Labor Department (DOL) suggests
that the number of breaks called for in an eight-hour shift would “typically”
be two or three. However, more might be
required during longer shifts.
The duration of a “reasonable” break is
also subject to situation-specific factors. Relevant considerations would
include, for instance, how long it takes the worker to walk to and from the
break location, how much time she must spend expressing the milk (the Labor
Department thinks that this would normally be around 15 to 20 minutes), and the
amount of time she must devote to setting-up for, cleaning-up after, and adequately
storing the milk produced.
There are also many other areas of
uncertainty. As illustrations, what must an employer do with respect to
employees who do not work at any fixed location, or as to those who work at a
client’s or a customer’s premises? The DOL
has asked for public comment on these questions, but to date it has offered
little guidance.
Although the law plainly says that “[a]n
employer shall not be required to compensate an employee” for the reasonable
break time taken, even here matters are less than clear. The DOL has said that the
break could nevertheless count as compensable worktime in some situations,
including when the employee has not been “completely relieved from duty” during
the break. Labor Department interpretations
also take the view that an employer must pay the employee the same way it does
others if she takes paid break time to express breastmilk.
The requirement does not apply to employees
who are excluded from the FLSA’s overtime provision, including those who fall
with that law’s executive, administrative, professional, or “outside salesman”
exemption. There is also an exception for an employer of fewer than a total of 50
workers if “undue hardship” will result from providing the breaks, but this is
a high standard that will likely be difficult to prove.
Let
the Claims Begin
Enforcement efforts appear so far mainly
to have involved the Labor Department. The most-recent statistics released
reveal that the agency found one or more violations of the break requirement in
two-thirds of the 54 investigations it conducted.
About 80 percent of the compliance
problems grew out of the obligation to provide an adequate space, while a
smaller percentage apparently arose from not providing break time. Employers
found to be in violation reportedly agreed to observe the requirement in the future
and to make employees whole for any losses resulting from unlawful conduct.
There have also already been at least some
employee lawsuits. In one of them, a lower federal court found that only the
Labor Department could enforce the requirement to provide a suitable break
location. However, the court allowed the former employee to mover forward with
her allegation that management retaliated against her when she asserted her
rights.
The potential remedies for such a claim
could include more than just lost wages; the FLSA allows for “such legal or
equitable relief as may be appropriate,” which might encompass additional things
like compensatory damages and reinstatement to one’s job.
Our
Advice? Compliance
Restaurant management should develop a
policy for dealing with the break obligation before a worker comes forward with her request. Planning points
will include, among others, who will take the lead in evaluating each worker’s
request, what location(s) will be provided, how management will go about arriving
at the appropriate length and number of breaks, and whether there are any unusual
or atypical factors to be evaluated ahead of time.
And be aware that a number of state laws
require these kinds of breaks. Some of those laws provide more rights to a
covered employee than the federal one does. When different break requirements
apply to a particular worker, generally you must comply with whichever is more
favorable to the individual. Take this
possibility into account as you formulate a policy.
Fisher
& Phillips is labor and employment counsel for the Louisiana Restaurant
Association. For more information
contact the author a MMitchell@laborlawyers.com or (504) 522-3830.
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