New Data Shows that DOL is Actively Enforcing FLSA’s new Breastfeeding Break Requirement

Statistics released earlier this week by the Department of Labor show that the Department is taking seriously the Affordable Care Act’s requirement that employers provide employees with an opportunity for expression of breastmilk. The data — released pursuant to a Freedom of Information Act request by the Wage and Hour Laws blog —– shows that over four dozen employers were investigated for alleged wrongful practices during the first two years of the requirement’s existence. Three dozen of the investigated employers were ultimately cited for violations of the law.  These statistics underscore the need for employers to be aware of and comply with the new breastfeeding-break requirement — the Department of Labor is obviously taking the rule seriously, and employers should do the same.

The breastfeeding-break requirement became law with the passage of the Affordable Care Act (i.e., “Obamacare”) in 2010. The ACA specifically amended the Fair Labor Standards Act by adding Section 7(r), which requires employers to provide “a reasonable break time” in a shielded and secure place, other than a bathroom, for employees to express breast milk during their child’s first year. Small employers with less than 50 employees need not comply if the accommodation would “impose an undue hardship by causing the employer significant difficulty or expense.” The newly-released numbers show that the Department of Labor investigated 54 employers for suspected violations of this requirement between March 23, 2010, and June 11, 2012.  36 of those investigations (66%) resulted in findings of at least one employer violation.  29 of the violations were penalized for “failure to provide space”, while five violations were for “failure to provide break time.” The Department of Labor provided no additional details regarding the violations; the employers in all cases were required to remedy the problem, and in some cases were required to pay back wages.

The vast majority of the violations identified by the Department of Labor clearly involved employers’ failure to provide a sufficient opportunity for employees to take a break for the purpose of expressing breastmilk. Employers, therefore, need to confirm that they are complying with Section 7(r) by reviewing their practices at all work locations to ensure that nursing mothers have access to an appropriate break space that is shielded from view and free from intrusion by coworkers or the public. The Department of Labor has further clarified that requirement, stating that: (a) while an actual room is preferable for this purpose “where practicable”, partitions or curtains may be used if necessary; (b) the space must be reasonably close to employees; (c) employees must not be made to endure “prolonged waiting times” for their breaks; and (d) the break opportunity must be provided even to off-site employees. This new data released by the Department demonstrates that employers must act now to comply with these requirements or risk facing an investigation and, potentially, substantial penalties and fines.