If you are expecting a child or have recently given birth and plan to breastfeed, you may be wondering what your rights are regarding pumping at work. The good news is that California is among a number of states that have passed laws designed to protect the rights of nursing mothers. This article will cover the protections that exist and what employers are required to do, so you can continue to breastfeed your newborn or pump after returning to work. We’ll start with your right to a lactation break.
Lactation Breaks Protected Under Federal Law
A lactation break is a period of time during the workday for nursing mothers to express (pump) breast milk. Both state and federal laws require California employers to provide lactation breaks to virtually all nursing employees. The only exception allowed is if the lactation break would cause a serious disruption to the employer’s operation, That standard is extremely difficult to meet and employers should exercise caution when invoking it.
In 2010, Congress passed the Affordable Care Act (often called “ObamaCare”). In addition to creating numerous systematic reforms related to healthcare, the ACA also amended the federal Fair Labor Standards Act (FLSA) to most employers to provide non-exempt employees who are currently nursing a child with lactation breaks. All employees are entitled to “reasonable” unpaid breaks to provide breast milk to the newborn for up to one year after the birth of the child.
To facilitate these lactation breaks, the employer is also required to provide nursing employees with a private place, other than a bathroom stall, that is protected from view or intrusion by coworkers or the public. The only employers who may be exempt from the FLSA regulations are those with fewer than 50 employees. These employers are not required to provide breaks if it would cause undue hardship, meaning it would be too difficult or costly given the employer’s size, resources, and structure.
Lactation Breaks under California Law
While the federal FLSA provides break time only to hourly, non-exempt employees, all employees in California are covered under the state’s lactation accommodation law. In fact, California law provides far broader protections for nursing mothers in other ways as well.
Back in 1998, the California legislature passed a resolution encouraging all California employers to accommodate the needs of breastfeeding employees by ensuring that employees would have adequate facilities for breastfeeding or expressing milk for their children. 1
The legislature followed that in 2002 by enacting a number of laws under the state’s labor code designed to accomplish that goal, making it mandatory for all employers to provide lactation breaks and other accommodations to employees who are nursing. 2 And unlike many other California workplace accommodation laws, the lactation accommodation law applies to all employers in the state, regardless of size.
California law requires all employers to provide all nursing employees with breaks throughout the day to express (pump) breast milk. In general, the law does not provide working mothers with the right to breastfeed their infants at work, but when an employer provides on-site childcare facilities, a working mother may be able to breastfeed her child during her breaks.
How Long is a Lactation Break?
Under California law, employers are required to give nursing employees a reasonable amount of time to express breast milk during the workday. The length of each lactation break must provide nursing workers with a “reasonable amount of time” to express breast milk. This somewhat vague standard usually means there are no strict time limits. The appropriate length of the break will depend on a variety of factors, like:
- The frequency and number of breaks the nursing mother might need;
- The time it takes the employee to retrieve her pump and other equipment and then proceed to the lactation space and wait for available space;
- The time it takes the employee to unpack and set up her pump
- The efficiency of the pump used to express milk (employees using different pumps may require more or less time);
- The time it takes the employee to wash her hands before pumping and to clean the pump attachments when she is finished with expressing milk; and
- The time it takes for the employee to store her milk either in a refrigerator or personal cooler. 3
Whenever possible, lactation breaks should be taken during the employee’s usual rest and meal breaks, but if more (unpaid) break time is needed, employers must accommodate the employee. Unlike the federal law, California has no upper limit on how long after a child’s birth the mother may continue to take lactation breaks. As long as the employee is nursing, she may take breaks to express breast milk.4
Besides having to provide the time for lactation breaks, California employers must also make reasonable efforts to provide nursing employees with a private room or space that is not a toilet stall, where they can express breast milk. This space must be close to the employee’s work area.
Pay During Lactation Breaks
The employer is not required to pay the employee during a lactation break, if her lactation break occurs at a time other than their normal rest or meal breaks. On the other hand, if the worker takes her lactation break at the same time as a normal paid break, the employee should be paid, as she would normally. 5
If a new mother wants to express breast milk at work, the best idea is to notify the employer of the need to do so before returning to work. It’s best to put the request in writing, using respectful but concise language. Employers are legally prohibited from retaliating against an employee who requests a lactation break, which means no one can be punished, fired, or treated unfairly for exercising their right to a lactation break.
Direct Breastfeeding at Work
Mothers in California have a right under state law to breastfeed their child in any location, public or private. All that is needed to exercise this right is for the mother and child to be allowed into the public location where they choose to breastfeed. That means, whether the mother and her child are at a shopping mall or a department store or any other place where the public is expected to gather, the mother has the right to breastfeed wherever she happens to be. 6
If an employer allows employees to bring children in the workplace, or they provide on-site childcare, the employer must allow nursing employees to use their lactation breaks to breastfeed their child. It is important to note, however, that California employers are under no obligation to permit parents to bring their kids to work, nor are they obligated to provide childcare facilities, which means the right to directly breastfeed their child at work can often be quite limited in its application.
It’s also useful to know that California courts have never directly addressed the overlap between the right to breastfeed in public and the right to take lactation breaks at work. That means, while most court rulings indicate that direct breastfeeding is a right for mothers at work, in practice that isn’t entirely clear.7
Workplace Breastfeeding Discrimination and Harassment
In California, it is unlawful for an employer with more than four employees to discriminate against any employee on the basis of their sex, which includes breastfeeding and medical conditions related to breastfeeding. That means employers with more than four employees are expressly prohibited from discriminating and/or harassing employees for reasons related to breastfeeding. 8
The protections against workplace harassment are actually broader than those against discrimination, in that they apply to all women, including women who aren’t technically employees. No woman may be treated unfairly or improperly based on their desire to take lactation breaks to either breastfeed or pump.
The only exception to these laws providing lactation breaks or a private space to express breast milk would “seriously disrupt” the operations of the employer, the employer does not have to comply with the law. For this exception to apply, there must be a significant burden on the employer; providing lactation breaks must create more than a minor inconvenience to qualify.
The Potential Consequences of Violations by an Employer
If any California employer violates the law and fails to provide their employees with a lactation break, they can be hit with a civil penalty of $100 for EACH violation. In some cases, the employee herself can recover a portion of that penalty. That is in addition to a possible civil suit and recovery for damages.
If an employer discriminates against a nursing employee, they can be held liable for substantial damages, including compensatory damages, to compensate the mother for any harm she can prove she has suffered, like lost wages and medical expenses. She can also recover punitive damages, which are usually used to punish the employer for any actions found to be wrongful. Punitive damages are common in cases in which the employer retaliated against the worker for asking for a lactation break. In many cases, the court will also require them to pay all legal expenses like attorney’s fees, expert witness fees and the cost of filing a complaint.
It is certainly good for employers to know that a violation of California’s laws designed to protect the rights of nursing mothers can be very expensive indeed. It is usually best for employers to play it safe and accommodate nursing mothers to the greatest extent possible. It is certainly less expensive to simply follow the law than to avoid responsibility.
What to Do if Your Right to Breastfeed at Work Has Been Violated
Employees who believe their right to breastfeed has been violated have a number of options available to them. The first option, of course, should be to try to reason with your employer and resolve the dispute informally, if that is at all possible. If that doesn’t work, you can file a complaint with the Labor Commissioner, or you can get a lawyer and file a lawsuit in court.
Whichever type of resolution you seek, you should always have the skill of an experienced and knowledgeable California employment attorney to help you determine if you have a case and your options for moving forward. The employment attorneys at Whitehead Employment Law are uniquely suited to help you through the process and protect your rights under the law.
Whitehead Employment Law Represents Employees Across California
Whitehead Employment Law is a premier firm with a wealth of legal talent dedicated to labor and employment law. Employment law is all we do and we are proud to dedicate our practice to protecting employee rights. We have settled and tried cases winning millions of dollars in awards for clients whose employers have violated California labor laws.
We take our cases on a contingency basis, which means we don’t get paid unless we win the case for you. We also front all the court costs and fees, and get paid our share out of the court verdict or settlement with the employer if we win the case, so you don’t pay anything out of pocket.
Contact Whitehead Employment Law today at 949-936-4001. Consultations are free and confidential.
DISCLAIMER: This article does not provide legal advice and does not establish an attorney-client relationship. If you need legal advice, please contact an attorney directly.