In 2010, the Patient Protection and Affordable Care Act amended Section 7 of the Fair Labor Standards Act (“FLSA”) to require employers to provide nursing employees with (1) reasonable break time to express breast milk in a (2) private place other than a bathroom that is shielded from view and free from intrusion from co-workers and the public (3) for up to one year after the child’s birth. This new requirement became effective on March 23, 2010, when President Obama signed the Affordable Care Act into law.

This requirement broadly applies. It protects employees who work for a covered employer (i.e., employers who have at least 2 employees or do at least $500,000 a year in business), employees who are covered on an individual basis (i.e., employees who are engaged in interstate commerce), or employees who are covered under Section 7 of the FLSA (i.e., employees entitled to overtime pay). However, the law does have several exemptions, the most notable being the “white collar” exemption, which applies to certain executive employees, administrative employees, and professional employees. Additionally, an employer that employs fewer than 50 employees is not required to provide break time and space if it would pose an undue hardship, which is defined as “causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”

A common question arises as to an employee’s rights and remedies if this law is violated. Importantly, employers are not required to provide compensated break time. However, as with other breaks under the FLSA, the employee must be completely relieved from duty or the break time must be compensated as break time. Of course, if an employer already provides paid break time and an employee chooses to use that time to express breast milk, she must be compensated for that time just as other employees would be compensated for break time. If an employer has not relieved an employee from duty during break time or has refused to compensate an employee for using her paid break time to express breast milk, then an employee may have a cause of action against the employer to recover that compensation.

Importantly, however, the FLSA also protects nursing mothers from discrimination and retaliation. If an employee is discharged or in any manner discriminated against because she has or has requested to exercise her rights under the FLSA, then she may either file a complaint with the US Department of Labor, Wage & Hour Division, or she may file a private right of action under the FLSA for retaliation seeking reinstatement, lost wages, or other appropriate remedies.

If you believe that your rights as a nursing mother under the FLSA have been violated, then it would be wise to consult with an attorney.