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Tuesday, December 19, 2017

I Am a Breastfeeding Mother and My Employer Will Not Let Me Express Milk or Pump Milk While I Am at Work. What Can I Do?

Let's face it: if men were breastfeeding and required breaks at work to pump their milk, whether or not they had a civil right to breastfeed, which for working people naturally entails being allowed breaks at work to pump milk, would not even be an issue. There would be dedicated spaces at work to pump milk.

For years progressive attorneys and women’s rights groups have lobbied for civil rights of women who breastfeed to be allowed time at work to pump or express milk. While a federal law was passed in 2010 called the Break Time for Nursing Mothers Law, there was wiggle room for employers with less than 50 employees to circumvent the law if they could prove enforcing it would created an undue hardship on the business.

The law, covered by the Fair Labor Standards Act, requires employers to give nursing mothers breaks to pump for milk. The employers must provide a completely private space so that no one can see inside it. The law prohibits the space from being a bathroom. An employer cannot direct the nursing mother to use a bathroom to express milk, even if the bathroom is a private bathroom. However, the law does not require employers to create a permanent dedicated space for its breastfeeding employees to pump milk. The employer meets the requirements as long as the space is available each time the breastfeeding mother needs to use it and the space is private and not a bathroom. 

This federal law applies to hourly and nonexempt employees. How much time it takes to pump and how often is different for every mother. For this reason the law requires employers to provide reasonable break times and space each time the nursing mother requires  it, be it a regular, changing or more erratic schedule. The pumping schedule should be adjusted to address the mother’s underlying needs. If the space is not available at the time a nursing mother needs to use it, then the employer is not meeting the requirements of the law.

Employees should know that the law does not require the employer to pay the employee for pumping breaks. However, if the employer offers paid breaks, and the employee utilizes those breaks to pump milk, then the employee’s time spent on pumping breaks should be paid in the usual way for breaks, but the employer is not required to offer pay for more breaks than is the usual business policy as to employee breaks.

Exemptions.

Unfortunately, for employers with less than 50 employees, employers are exempted from this federal statute if they can prove that allowing breaks for expressing milk, creates an undue hardship or burden on the business operations.

Businesses with fewer than 50 employees who want to be exempted must apply for an undue hardship exemption, the exemption is not automatic. The employer must prove that providing these accommodations to the employee would cause significant expense or difficulty in considering the context of the entire business. Until the business is granted an exemption by the Department of Labor, the business must comply with the law. Among the factors considered as to whether the requirement creates an undue hardship or burden on the business, are its financial resources, the structure and nature of the business

Because of this exemption, nursing mothers in New Jersey who sued their employer for not allowing them pumping breaks, relied on other theories of recovery, such as sex or gender discrimination. 

Another legal theory is under the New Jersey Law Against Discrimination (NJLAD). The NJLAD added “pregnancy” as a protected class, offering protection from discrimination in employment, under the statute. 

The legal argument as this relates to protection for breastfeeding is under the current New Jersey Law Against Discrimination (NJLAD). N.J. Stat. § 10:5-12 s):

For an employer to treat, for employment-related purposes, a woman employee that the employer knows, or should know, is affected by pregnancy in a manner less favorable than the treatment of other persons not affected by pregnancy but similar in their ability or inability to work. In addition, an employer of an employee who is a woman affected by pregnancy shall make available to the employee reasonable accommodation in the workplace, such as bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring or modified work schedules, and temporary transfers to less strenuous or hazardous work, for needs related to the pregnancy when the employee, based on the advice of her physician, requests the accommodation, unless the employer can demonstrate that providing the accommodation would be an undue hardship on the business operations of the employer. The employer shall not in any way penalize the employee in terms, conditions or privileges of employment for requesting or using the accommodation. Workplace accommodation provided pursuant to this subsection and paid or unpaid leave provided to an employee affected by pregnancy shall not be provided in a manner less favorable than accommodations or leave provided to other employees not affected by pregnancy but similar in their ability or inability to work. This subsection shall not be construed as otherwise increasing or decreasing any employee’s rights under law to paid or unpaid leave in connection with pregnancy.

For the purposes of this section “pregnancy” means pregnancy, childbirth, or medical conditions related to pregnancy or childbirth, including recovery from childbirth.

It has been argued that requesting an accommodation is appropriate because breastfeeding is a medical condition related to pregnancy

New Changes in the Law.

It will soon be easier for breastfeeding women to be allowed their civil right to breastfeed, which for working women naturally encompasses having breaks while at work to pump milk. The New Jersey Senate and General Assembly of the State introduced bills which have been enacted that adds amendments to the New Jersey Law Against Discrimination expanding civil rights protections to include breastfeeding. The most recent version of the Senate bill, S2709, recently passed the Senate Labor Committee and is expected to be voted on during the lame duck session and signed prior to the end of this administration in January. This bill amends the NJLAD by adding breastfeeding to the list of protected classes under the statute.

More will be written on this in another blog.

If You Are Thinking of Simply Resigning.

If you are thinking simply resigning because your employer told you, that you are not allowed breaks to pump, you should contact an attorney experienced in employment law before you do so, to explore your legal options in the safest way for you.

What You Can Do.

I am an aggressive and compassionate employment law attorney who is experienced in successfully representing pregnant women, disabled women, women on FMLA leave and related issues. If you are being denied break time at work to pump milk, if you are thinking of resigning, or think you will be fired, or have been fired, it is important that you consult with an attorney who is experienced in discrimination. 

If you are being subjected to workplace discrimination, contact Hope A. Lang, Attorney at Law today for a free consultation.

Hope A. Lang, Attorney at Law serves clients throughout New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Central, western and northern NJ to meet with clients.

 


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