FLSA Lactation-Break Comments Urge Expansive Approach


The period has now closed for submitting information and comments relating to the U.S. Labor Department's "preliminary interpretations" of the 2010 federal Fair Labor Standards Act lactation-break amendment. We highlighted these preliminary interpretations in a December post. If DOL adopts even a portion of the positions put forth by many commenters, employers will be faced with yet another legal minefield.

Does The FLSA Sometimes Require Paid Lactation Breaks?

Several commenters continue to suggest or insinuate that lactation breaks of 20 minutes' duration or less must be treated as worktime under the FLSA. Their positions overgeneralize an already loosely-worded DOL interpretation from 1940 that "[r]est periods of short duration, running from 5 minutes to about 20 minutes," must be counted as worktime. See 29 C.F.R. § 785.18. The rationale for this view was that such breaks "promote the efficiency of the employee" so as to inure mainly to the employer's benefit. Lactation breaks serve laudable purposes for many reasons, but they are not "rest breaks" and are in no meaningful sense principally for the employer's benefit.

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