Presented by Melissa Crawford Kestner

Breastfeeding in Public

Overview of State Breastfeeding Laws
Forty-four states have laws that specifically allow women to breastfeed in any public or private location
Twenty-eight states exempt breastfeeding from public indecency laws
Twenty-four states have laws related to breastfeeding in the workplace
Five states and Puerto Rico have begun or are developing an education campaign on the benefits of breastfeeding

Breastfeeding in Public

Breastfeeding in Public

Breastfeeding in Public
Advocacy and Education
• Enforcement by police departments
• PR campaign to education police departments and other local government agencies
• Educating mothers
• Educating and working with professionals who work with pregnant and new mothers
• Other ideas?

Workplace Pumping

Federal Workplace Pumping Law
• H.R. 4872, Sec. 4207. Reasonable Break Time for Nursing Mothers
• Section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 207) is amended by adding at the end the following:
– ‘‘(r)(1) An employer shall provide - ‘‘(A) a 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 ‘‘(B) 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
– An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose
– An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business
– Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provide for under this subsection.’’

Official Regulations or guidance not yet in place, but
US DOL issued Fact Sheet #73 in July of 2010
• Employers shall provide
– Reasonable break time
– “Each time” employee has need
– A place “other than a bathroom”
– Unpaid (?)
• Until child’s first birthday
• State law is not preempted 29 U.S.C.
Section 207(r)

Federal Workplace Pumping Law
What is “Reasonable” Time?
• Federal law is vague
• Effort is to match bio rhythm to clock
• DOL Fact Sheet “the frequency of breaks needed as well as the duration of each break will likely vary.”
• If location is further away, 10-15 minutes will likely not be enough
• Travel, set up, expression, cleaning, storage, return to area

• DOL emphasis: “A bathroom, even if private, is not a permissible location under the Act”
• Functional for expressing breast milk
• Available when needed
• Can be temporary or multi-use space so long as available when needed by the nursing mother
• Must be “shielded from view and free from intrusion from coworkers and the public”
• Rotating room, curtained-off area, space shared by businesses, car privacy panels at last resort

Federal Workplace Pumping Law
Which Employees are Mandated?
• All employers covered under the FLSA….
– But those with less than 50 employees may argue undue hardship (all employees working for same covered employer are counted, regardless of work site)
• Undue hardship determined by looking at difficulty or expense of compliance for a specific employer in comparing to the size, financial resources, nature, and structure of the employer’s business

• Amends the FLSA (federal wage and hour law) to add 29 U.S.C. 207(r)
• Covers most workers, but some are exempted under Section 213(a) and (b)
• “Non-exempt workers” (most hourly wage) are covered
– Retail
– Restaurant
– Call centers
Note: This means most working WIC moms!

Federal Workplace Pumping Law
Compensation
• Employers are not required under FLSA to compensate nursing mothers for breaks taken to pump
• However, if an employer already compensates an employee for breaks, the employee who uses that break time to pump must be compensated as her coworkers are

Federal Workplace Pumping Law
What the Federal Law Doesn’t Say....
• It doesn’t say:
– “In close proximity to employee’s work area”
– “All employees anywhere are covered”
– “Paid”
• Salaried and certain other employees not covered by provisions of FLSA section 207
....So not covered by this new federal law
– But STATE law still applies
General SOURCE for federal law slides: Amelia Psmythe, Director, Breastfeeding Coalition of Oregon and Mendy Mattingly,
Attorney at Law, Littler Mendelson teleconference: Reasonable Breaks for Nursing Mothers and Reasonable Steps for
Breastfeeding Advocates: Insights into Section 4207 of Federal Wage and Hour Law.

Federal Workplace Pumping Law
How is the Law Administered?

Federal Workplace Pumping Law
Local Protocol
• Employee calls to “complain” about employer’s conduct under the law
• Make determination regarding exempt/ nonexempt state to ensure the employee is covered
• After talking with employee, ask whether she wants to file formal complaint
• Obtain permission to use employee’s name
• Inform woman of anti-retaliation protection

Federal Workplace Pumping Law
Local Protocol
If the employee still wants to proceed:
• Take official complaint
• Local office will contact the employer by phone in an attempt to conciliate
• If conciliation process is not successful, an investigator will be assigned to work the case
• Investigator will likely make a site visit and a determination about employer’s conduct

Federal Workplace Pumping Law
Local Protocol
• No additional policy in place regarding appeals or action taken after this point
• The Wage and Hour Division will issue additional guidance on the break time requirement in the near future
• At any point during this process, the employee has a right to legal action

Minnesota Workplace Pumping Law
Minnesota Statute 181.939 requires employers to provide a break time for nursing mothers

Minnesota Workplace Pumping Law
MN Statute 181.939 NURSING MOTHERS
An employer must provide reasonable unpaid break time each day to an employee who needs to express breast milk for her infant child. The break time must, if possible, run concurrently with any break time already provided to the employee. An employer is not required to provide break time under this section if to do so would unduly disrupt the operations of the employer.
The employer must make reasonable efforts to provide a room or other location, in close proximity to the work area, other than a toilet stall, where the employee can express her milk in privacy. The employer would be held harmless if reasonable effort has been made.
For the purposes of this section, "employer" means a person or entity that employs one or more employees and includes the state and its political subdivisions. https://www.revisor.mn.gov/statutes/?id=181.939

Minnesota Workplace Pumping Law
Employers Duties
• Provide “reasonable unpaid break time each day”
• To an employee who needs to pump
• “Infant child”
• Must make “reasonable efforts” to provide a place “other than a toilet stall”
• State law is not preempted by Federal law

Minnesota Workplace Pumping Law
Break Time
• Frequency and duration is vague “reasonable”
• Break time must, if possible, run concurrently with any break time already provided
• Employer not required to provide break time under this section if to do so would unduly disrupt operations
• If location is further away, 10-15 minutes will likely not be enough
• Travel, set up, expression, cleaning, storage, return to area

Minnesota Workplace Pumping Law
Location for Pumping
• Employer must make “reasonable efforts” to provide:
– Location in “close proximity” to work area
– Location that allows for privacy
– “Other than a toilet stall”
• Employer would be held harmless if “reasonable effort” has been made

Minnesota Workplace Pumping Law
Coverage
• “Employer" means a person or entity that employs one or more employees
• Includes the state and its political subdivisions

Minnesota Workplace Pumping Law
How is the Law Administered?

Minnesota Department of Labor, Wage and Hour
Division Protocol
• Discussion begins by employee calling to complain about employer’s conduct under the law
• Employee talks with an investigator, has choice to bring anonymous complaint
• Supervisor reviews complaint and writes the business a letter to inform and educate
• Wait to see if business makes a change
• At any point during this process, the employee has a right to legal action

Workplace Pumping
Comparison of Federal and MN Laws
• Federal law provides minimum, uniform protection for all states. Fact Sheet 73 says:
– The FLSA requirement of break time for nursing mothers to express breast milk does not preempt
State laws that provide greater protections to employees (for example, providing compensated break time, providing break time for exempt employees, or providing break time beyond 1 year after the child’s birth).

Workplace Pumping
Comparison of Federal and MN Laws
• Which is stronger – Federal or Minnesota?
– Both apply to any employer with one or more employees
– Federal law allows for employees with fewer than
50 employees to argue break time requirement causes “undue hardship”; MN law allows for any employer to argue break time “unduly disrupts operations”
– Federal law restricts right to break to non-exempt employees; MN law has no restriction on employees entitled to a break

Workplace Pumping
Comparison of Federal and MN Laws
• Which is stronger – Federal or Minnesota? (cont.)
– Federal law states child up to one year; MN law says “infant child”
– Federal law is more liberal in amount of time and frequency; MN law states “must run concurrently with any break time already provided
– Federal law requires a space that is not a bathroom, shielded from view and free from intrusion; MN law requires the employer to make
“reasonable effort” to provide a space other than a “toilet stall”. Further, that the space be in “close proximity to the work area” and the space be private.

Workplace Pumping
Advocacy and Education
Changing the Environment
• Work with local
Coalition
• HRSA Business
Case Toolkit trainees/materials
• Contact state office of DOL
• Read fact sheets and FAQ
• Counsel BF workers
• Work with and contact employers for solutions
• Continue to lobby for
Breastfeeding
Promotion Act
• Document process

Workplace Pumping
Advocacy and Education
Changing the Environment
• What direction do you see the Coalition going?
– Identify and honor businesses
– Gather personal stories – successes and challenges; humanize this experience
– Use existing tools and/or develop new tools
– Make or maintain valuable connections
– Identify our personal area of interest
– Other suggestions, ideas, brainstorms to
CHANGE THE ENVIRONMENT?

Melissa Crawford Kestner
Crawford & Kestner, P.A
651-209-7575 www.crawfordkestner.com