New mothers are often faced with an important decision: should they breastfeed or use formula? Employed mothers, however, are faced with an additional question: if they choose to breastfeed, will their employer allow them break time to pump at work? If employees can't take a lactation break at work, then the decision of whether to breastfeed is essentially made for them. Without sufficient breaks, women that are unable to regularly express breast milk may not be able to continue milk production. Fortunately, California law provides employees with numerous rights in the workplace.

Why the right to pump at work is important.

Studies suggest that there are many benefits to breastfeeding. For mothers, breastfeeding provides a valuable opportunity to bond with their newborn. For children, there are numerous health and developmental benefits, including:

• Increased immunity to disease.
• Reduced risk of infections.
• Reduced risk of diabetes.
• Reduced risk of childhood obesity.
• Better mental health through adolescence.
• Reduced allergies.
• And possibly increased intelligence. ((Wikipedia, Breastfeeding: Benefits for the Infant (Last checked December 26, 2013).))

Given these health benefits, it wouldn't be fair for employers to make this important parental decision for their workers. Accordingly, both federal and state laws protect a mother's right to express breast milk at work under certain conditions.

Lactation breaks are often a right.

There are several sets of laws that provide a right to take lactation breaks at work. On the federal level, the Fair Labor Standards Act (FLSA) states that employees must be given a reasonable break time to express breast milk for their nursing child for one year after the child's birth. ((29 U.S.C. § 207, subd. (r).)) The difficulty with the FLSA, however, is that the lactation break provision only applies to employers that have 50 or more employees. ((29 U.S.C. § 207, subd. (r)(3).)) Employees of companies with less than 50 employees are not covered by the FLSA's lactation break.

California law provides another avenue for employees to take lactation breaks. California's Labor Code states: "Every employer . . . shall provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee's infant child." ((Labor Code, § 1030.)) The word "shall" in that sentence means these breaks are mandatory for employers to provide. Employers are not, however, required to provide additional breaks for lactation if they would seriously disrupt the employer's operations. ((Labor Code, § 1032.))

How often can a new mother take a lactation break and how long can they be?

The law is not very clear on the number of breaks or the amount of time allowed for each break. Both state and federal law require employers to give a reasonable amount of break time. ((29 U.S.C. § 207, subd. (r); Labor Code, § 1030.)) What is "reasonable," however, will vary from case to case and, unfortunately, California law is not very well developed in this area.

Ultimately, different mothers may have different needs to express breast milk and different work situations may result in longer or shorter breaks. Because lactation is an inherently medical issue, it may be a good idea for employees to discuss their lactation needs with a doctor. Based on those recommendations, employees might have a better idea of what a "reasonable" number and duration of breaks is for them.

The federal Department of Labor has outlined several factors in determining what constitutes a "reasonable" time for a break. The Department of Labor tells courts to look at:

• The time it takes to walk to and from the lactation space and the wait, if any, to use the space.
• Whether the employee has to retrieve her pump and other supplies from another location.
• Whether the employee will need to unpack and set up her own pump or if a pump is provided for her.
• The efficiency of the pump used to express milk (employees using different pumps may require more or less time).
• Whether there is a sink and running water nearby for the employee to use to wash her hands before pumping and to clean the pump attachments when she is done expressing milk, or what additional steps she will need to take to maintain the cleanliness of the pump attachments.
• And the time it takes for the employee to store her milk either in a refrigerator or personal cooler. ((75 Fed. Reg. 80073.))

The Department of Labor estimates that normally a 15- or 20-minute break about two or three times during an eight-hour shift is fine, but numerous factors can change those numbers. It is also possible that lactation break quantities and durations will be more generous under California law after the courts or relevant state agencies interpret the applicable portion of California's Labor Code.

Are lactation breaks paid?

Maybe. Lactation breaks may be paid to the extent that they are taken at the same time as normal breaks would be taken. Hourly employees, for example, are normally provided two compensated ten-minute breaks for every eight-hour shift. If a lactation break is provided during that time, then the employee is entitled to compensation. Breaks in excess of those required by law, however, are not required to be paid. ((Labor Code, § 1030.)) So, if an employee must take four lactation breaks throughout the day, not all of those lactation breaks will be paid.

Can my employer discriminate against me for needing a lactation break?

No. Under the Fair Employment and Housing Act (FEHA), women may not be discriminated against on the basis of breastfeeding or medical conditions related to breastfeeding. ((Gov't Code, § 12926, subd. (q)(1)(C).)) California law treats this kind of discrimination as sex discrimination. If an employer discriminates, retaliates, or takes negative action against a lactating mother and that action is motivated by a medical condition related to breastfeeding, that employer has broken the law and can be liable for their actions. ((Gov't Code, § 12940.))

What accommodations must employers provide?

Under the FLSA, employers must provide a place shielded from view of others. ((29 U.S.C. § 207, subd. (r)(1)(B).)) It must be free from intrusion from coworkers and the public, and it may not be a bathroom. ((Id.))

Under California's Labor Code, employers must make reasonable efforts to provide the employee with a room or other private location to express breast milk. ((Labor Code, § 1031.)) The room must be in close proximity to the employee's work area. The area may not be a toilet stall. ((Id.))

What if my employer refuses to give me reasonable lactation breaks?

Employers that aren't otherwise exempt are breaking the law if they refuse to provide reasonable breaks for a woman to express breast milk. If an employer refuses to honor their legal obligations, employees usually have one of two choices: bring a lawsuit or report their employer's actions to the Labor Commissioner. Reporting a violation to the Labor Commissioner, however, doesn't guarantee that the Labor Commissioner will take any action. Additionally, by the time the Labor Commissioner acts on an employee's claim, it may be too late. The employee may no longer be able to lactate or may no longer need to breastfeed her child.

Lawsuits may grab the employer's attention very quickly and are often a good option for employees. Employment lawyers, like Optimum Employment Lawyers, can often be hired on a contingent fee basis, so employees don't have to bear any of the upfront attorney fees. If you're interested in speaking with a lawyer to get a free analysis of your case, give Optimum Employment Lawyers a call at (949) 954-8181.