The United States Labor Department (DOL) recently responded to a Freedom of Information Act request for documents relating to its enforcement of Section 7 of the Fair Labor Standards Act (FLSA) and it showed active enforcement. This provision of FLSA requires covered employers to provide a reasonable break time and place, other than a bathroom, in which nursing mothers may express breast milk for one year after the birth of a child.

According to the summary of enforcement data, the DOL Wage and Hour Division conducted 54 investigations into violations of the new provisions from their March 2010 effective date through June 11, 2012. The DOL found violations in 36 of those cases, out of which 29 involved a “failure to provide space” for the break.[1] In all 36 cases, the employers had remedied the problems and agreed to future compliance.

Although DOL has started to enforce the Section 7, the agency has not yet issued the final implementing rules. Therefore, employers may not be clear about the extent of their obligations. For example, when an employee works off-site or when there is a question whether the designated place is sufficiently private. Additionally, the provision does not require the nursing breaks be paid time, but the time to express milk must be compensated in the same way that other employees are compensated for their break time. Thus, employers following the general practice of only compensating breaks under 20 minutes pursuant to the FLSA, may be unclear whether they have to compensate an employee who takes a 21-minute break to express milk.

Employers should also be aware that many states have their own laws establishing rights for breastfeeding mothers,[2] which may have more stringent requirements for employers than the FLSA. Stay tuned for further updates regarding this issue.

[1] The response did not disclose how many of these violations involved an employer’s providing no space, as opposed to providing space that was inadequate or inappropriate in some way.

[2] Florida law allows mothers to breast-feed in public.