DOL Seeks Comments on Break Time for Nursing Mothers

As previously reported in our “Nursing Mother Amendment to the Fair Labor Standards Act” alert (click here to read), Congress amended the Fair Labor Standards Act to provide breaks for nursing mothers. Pursuant to the Break Time for Nursing Mothers Act (“BTNMA”), certain employers must provide a “reasonable break time” and space for an employee to express breast milk for her nursing child. The U.S. Department of Labor (“DOL”) issued guidance on the BTNMA in the summer that clarified the agency’s positions on several ambiguous points in the new law. We summarized these guidelines in our “Caregiver and Family Responsibilities: A Continuing Challenge For Employers” alert (click here to read). Despite the DOL’s guidance, given the wide-ranging differences in physical plants and staffing between workplaces, many employers continue to feel that they lack sufficient guidance about how to comply with the BTNMA.

Acknowledging the public’s continued confusion about the BTNMA’s requirements, the DOL recently issued a request for public comment on the types of guidance employers seek. The DOL does not intend to issue further regulations at this time due to the “wide variety of workplace environments, work schedules, and individual factors” that affect the number and length of breaks required by specific employees. However, the DOL’s stated intention is to consider comments received from the public in formulating further guidance for employers.

In addition to seeking public comment, the DOL’s Request for Information (“RFI”) contains some helpful information for employers to consider in formulating their policies with respect to what constitutes reasonable break time. For example, the RFI lists a set of factors, including the employee’s walk to the designated space and the need to first visit another location to retrieve a breast pump, which may require a longer (but still “reasonable”) break period. Similar examples are offered regarding whether a break may be unpaid and what sort of designated space suffices for purposes of the BTNMA.

The DOL is particularly interested in comments pertaining to: when break time may be unpaid; what constitutes “reasonable” break time; designating space for expressing milk; encouraging nursing mothers to give employers notice of their intent to take breaks at work to express milk; the undue hardship exemption; the DOL’s position that breaks for expressing milk may not be counted as FMLA leave; enforcement by the DOL’s Wage and Hour Division; and compliance assistance.

Those interested in submitting comments must do so by February 22, 2011. Seyfarth Shaw intends to submit comments, relying on the substantive, technical, and policy expertise of our Government Strategies and Public Policy Practice Group (including the former Assistant Secretary of Labor for Policy, who had responsibility for overseeing all regulatory activity at DOL, and the former Acting Administrator of the Wage and Hour Division), and a cross-sectional team of attorneys in practice groups throughout the firm. Please let your Seyfarth contact know if you would like to participate in the comment process.

Seyfarth Shaw LLP’s Wage and Hour Litigation Practice Group and Government Strategies and Public Policy Practice Group have experienced wage and hour practitioners and several former high-ranking government officials, with extensive legislative and regulatory experience. These individuals are able to assist you in formulating a comprehensive strategy for compliance. If you have any questions, please contact the Seyfarth Shaw attorney with whom you regularly work or any Wage and Hour Litigation attorney on our website.