Providing Breaks for Nursing Mothers

Buried in the many pages of the Patient Protection and Affordable Care Act signed into law on March 23, 2010, is a provision amending the Fair Labor Standards Act, which covers most employers,  to require employers to provide employees with break time to express milk.  The Department of Labor recently issued a fact sheet that provides guidance on the law.

Under the new law, employers are required to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk” and “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”  The frequency and duration of the breaks is left open-ended;  essentially as much time as needed by the mother is required.

The location for nursing does not have to be dedicated for just nursing, but “it must be made available when needed in order to meet the statutory requirement.  A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public.”

The break time can be unpaid, and the requirement applies only to non-exempt employees.   Also,  employers with fewer than 50 employees are not subject to this requirement if providing a break would cause an undue hardship based on factors such as the size, financial resources, nature, and structure of the employer’s business.

(Photo Courtesy of

Happy Birthday ADA!

The Americans With Disabilities Act turns 20 on July 22nd.  To celebrate, the EEOC will sponsor a panel of ten civil rights experts discussing the landmark law.  I wish I could attend the Washington D.C. event, which is described here.    We’ve been expecting the final regulations under the ADAAA this month.  I wouldn’t be surprised if the EEOC brings them to the birthday party on Thursday!

Financial Services Reform Bill Adds Whistleblower Protections

Thanks to the Employment Law Group for a thorough summary of the whistleblower provisions in the new financial services reform bill passed by the senate.  The article, including a link to the new law, can be found here

Some of the new provisions of the law include:

  • Section 922 provides for remedies including, among other things, double back pay with interest;
  • Section 1057, which provides whistleblower protection for financial services employees, permits employees to prevail in a lawsuit if they can prove that protected activity was a “factor which, alone or in connection with other factors, tends to affect in any way” in an employer’s decision to take unfavorable action regarding the employee unless the employer can show by clear and convincing evidence that the action would be taken in absence of the protected activity; and
  • Section 929 expands Sarbanes-Oxley coverage by making clear that the law applies to “employees of any subsidiaries of publicly-traded companies whose financial information is included in the consolidated financial statements of [a publicly] traded company” even when the company “has few, if any, direct employees, and instead employs most of its workforce through non-publicly traded subsidiaries.”

Whistle blower cases can be difficult cases for employers.  Juries and judges find it easy to believe that someone, i.e. an employer, retaliates against someone, the employee, for complaining that the employer’s actions are unlawful or for going to an oversight agency or body.   As a result, after someone engages in whistleblowing activity, any adverse action an employer takes is suspicious.  And the closer the adverse action is to the whistleblowing activity, the more it appears retaliatory.  In addition, juries and judges do not like retaliation and, when they find that an employer retaliated for whistleblowing activity, they often award large judgments.   This new law continues the recent trend of laws expanding whistleblower protections to more employees under more circumstances

Referendum 71 Expands Employees’ Rights

With the passage of Referendum 71, state registered domestic partners will be treated under state statutes the same as married spouses.  Although the change will impact employers in several ways, one of the most significant changes will be the expansion of leave rights under the state Family Leave Act (“FLA”), which applies to employers with at least 50 employees. Continue reading “Referendum 71 Expands Employees’ Rights”

Happy Veterans Day!

Many people confuse Veterans Day and Memorial Day.   In some ways, the distinction is not that important because both days are for recognizing those who chose to join the military to protect us.

Memorial Day is rooted in Decoration Day, which began to be observed shortly after the Civil War as a day for decorating the graves of the war dead.  After World War I, the day was expanded to cover all wars in which Americans died. Memorial Day was declared a national holiday in 1971.

Veterans Day is rooted Continue reading “Happy Veterans Day!”