Breastfeeding Advocacy Minnesota Breastfeeding Laws

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Breastfeeding AdvocacyMinnesota Breastfeeding
Laws

• Presented by Melissa Crawford Kestner

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Breastfeeding in Public
Minnesota has 2 laws that protect a womans right
to breastfeed in public
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Overview of State Breastfeeding Laws

• Forty-four states have laws that specifically
  allow women to breastfeed in any public or
  private location

Twenty-eight states exempt breastfeeding from
public indecency laws
Twenty-four states have laws related to
breastfeeding in the workplace
Five states and Puerto Rico have begun or are
developing an education campaign on the benefits
of breastfeeding
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Breastfeeding in Public
Minnesota Statute 617.23 protects a woman from
being criminally charged with indecent exposure
for breastfeeding in public
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Breastfeeding in Public
Minnesota Statute 145.905 gives a woman the right
to breastfeed in any public or private location
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Breastfeeding in Public Advocacy and
Education

• Enforcement by police departments
• PR campaign to education police departments and
  other local government agencies
• Educating mothers
• Educating and working with professionals who work
  with pregnant and new mothers
• Other ideas?

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Workplace Pumping
Federal and Minnesota Workplace Pumping Laws
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Federal Workplace Pumping Law

• The Patient Protection and Affordable Care Act
  (Health Care Reform) amended the Fair Labor
  Standards Act (FLSA) when the law became
  effective on March 23, 2010.
• Section 4207 requires reasonable break time for
  nursing mothers.

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Federal Workplace Pumping Law

• H.R. 4872, Sec. 4207. Reasonable Break Time for
  Nursing Mothers
• Section 7 of the Fair Labor Standards Act of 1938
  (29 U.S.C. 207) is amended by adding at the end
  the following
• (r)(1) An employer shall provide - (A) a
  reasonable break time for an employee to express
  breast milk for her nursing child for 1 year
  after the childs birth each time such employee
  has need to express the milk and (B) a place,
  other than a bathroom, that is shielded from view
  and free from intrusion from coworkers and the
  public, which may be used by an employee to
  express breast milk
• An employer shall not be required to compensate
  an employee receiving reasonable break time under
  paragraph (1) for any work time spent for such
  purpose
• An employer that employs less than 50 employees
  shall not be subject to the requirements of this
  subsection, if such requirements would impose an
  undue hardship by causing the employer
  significant difficulty or expense when considered
  in relation to the size, financial resources,
  nature, or structure of the employers business
• Nothing in this subsection shall preempt a State
  law that provides greater protections to
  employees than the protections provide for under
  this subsection.

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Federal Workplace Pumping Law

• Official Regulations or guidance not yet in
  place, but US DOL issued Fact Sheet 73 in July
  of 2010
• Employers shall provide
• Reasonable break time
• Each time employee has need
• A place other than a bathroom
• Unpaid (?)
• Until childs first birthday
• State law is not preempted 29 U.S.C.Section
  207(r)

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Federal Workplace Pumping Law What is
Reasonable Time?

• Federal law is vague
• Effort is to match bio rhythm to clock
• DOL Fact Sheet the frequency of breaks needed as
  well as the duration of each break will likely
  vary.
• If location is further away, 10-15 minutes will
  likely not be enough
• Travel, set up, expression, cleaning, storage,
  return to area

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Federal Workplace Pumping Law What
is a Place Other than a Bathroom?

• DOL emphasis A bathroom, even if private, is
  not a permissible location under the Act
• Functional for expressing breast milk
• Available when needed
• Can be temporary or multi-use space solong as
  available when needed by thenursing mother
• Must be shielded from view and free from
  intrusion from co-workers and the public
• Rotating room, curtained-off area, space shared
  by businesses, car privacy panels at last resort

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Federal Workplace Pumping Law Which
Employees are Mandated?

• All employers covered under the FLSA.
• But those with less than 50 employees may argue
  undue hardship (all employees working for same
  covered employer are counted, regardless of work
  site)
• Undue hardship determined by looking at
  difficulty or expense of compliance for a
  specific employer in comparing to the size,
  financial resources, nature, and structure of the
  employers business

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Federal Workplace Pumping Law
Classification of Covered Employees

• Amends the FLSA (federal wage and hour law) to
  add 29 U.S.C. 207(r)
• Covers most workers, but some are exempted under
  Section 213(a) and (b)
• Non-exempt workers (most hourly wage) are
  covered
• Retail
• Restaurant
• Call centers

Note This means most working WIC moms!
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Federal Workplace Pumping Law Compensation

• Employers are not required under FLSA to
  compensate nursing mothers for breaks taken to
  pump
• However, if an employer already compensates an
  employee for breaks, the employee who uses that
  break time to pump must be compensated as her
  coworkers are

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Federal Workplace Pumping Law What the
Federal Law Doesnt Say....

• It doesnt say
• In close proximity to employees work area
• All employees anywhere are covered
• Paid
• Salaried and certain other employees not covered
  by provisions of FLSA section 207....So not
  covered by this new federal law
• But STATE law still applies

General SOURCE for federal law slides Amelia
Psmythe, Director, Breastfeeding Coalition of
Oregon and Mendy Mattingly, Attorney at Law,
Littler Mendelson teleconference Reasonable
Breaks for Nursing Mothers and Reasonable Steps
for Breastfeeding Advocates Insights into
Section 4207 of Federal Wage and Hour Law.
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Federal Workplace Pumping Law How is
the Law Administered?
US Department of Labor, Wage and Hour Division
local offices will administer
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Federal Workplace Pumping Law Local Protocol

• Employee calls to complain about employers
  conduct under the law
• Make determination regarding exempt/ nonexempt
  state to ensure the employee is covered
• After talking with employee, ask whether she
  wants to file formal complaint
• Obtain permission to use employees name
• Inform woman of anti-retaliation protection

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Federal Workplace Pumping Law Local
Protocol

• If the employee still wants to proceed
• Take official complaint
• Local office will contact the employer by phone
  in an attempt to conciliate
• If conciliation process is not successful, an
  investigator will be assigned to work the case
• Investigator will likely make a site visit and a
  determination about employers conduct

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Federal Workplace Pumping Law Local Protocol

• No additional policy in place regarding appeals
  or action taken after this point
• The Wage and Hour Division will issue additional
  guidance on the break time requirement in the
  near future
• At any point during this process, the employee
  has a right to legal action

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Minnesota Workplace Pumping Law
Minnesota Statute 181.939 requires employers to
provide a break time for nursing mothers
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Minnesota Workplace Pumping Law
MN Statute 181.939 NURSING MOTHERS An employer
must provide reasonable unpaid break time each
day to an employee who needs to express breast
milk for her infant child. The break time must,
if possible, run concurrently with any break time
already provided to the employee. An employer is
not required to provide break time under this
section if to do so would unduly disrupt the
operations of the employer. The employer must
make reasonable efforts to provide a room or
other location, in close proximity to the work
area, other than a toilet stall, where the
employee can express her milk in privacy. The
employer would be held harmless if reasonable
effort has been made. For the purposes of this
section, "employer" means a person or entity that
employs one or more employees and includes the
state and its political subdivisions.
https//www.revisor.mn.gov/statutes/?id181.939
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Minnesota Workplace Pumping Law Employers
Duties

• Provide reasonable unpaid break timeeach day
• To an employee who needs to pump
• Infant child
• Must make reasonable efforts to providea place
  other than a toilet stall
• State law is not preempted by Federal law

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Minnesota Workplace Pumping Law Break Time

• Frequency and duration is vague - reasonable
• Break time must, if possible, run concurrently
  with any break time already provided
• Employer not required to provide break time under
  this section if to do so would unduly disrupt
  operations
• If location is further away, 10-15 minutes will
  likely not be enough
• Travel, set up, expression, cleaning, storage,
  return to area

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Minnesota Workplace Pumping Law
Location for Pumping

• Employer must make reasonable efforts to
  provide
• Location in close proximity to work area
• Location that allows for privacy
• Other than a toilet stall
• Employer would be held harmless if reasonable
  effort has been made

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Minnesota Workplace Pumping Law Coverage

• Employer" means a person or entity that employs
  one or more employees
• Includes the state and its political subdivisions

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Minnesota Workplace Pumping Law How is the
Law Administered?
Minnesota Department of Labor, Wage and Hour
Division will administer
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Minnesota Workplace Pumping Law How is the
Law Administered?

• Minnesota Department of Labor, Wage and Hour
  Division Protocol
• Discussion begins by employee calling to complain
  about employers conduct under the law
• Employee talks with an investigator, has choice
  to bring anonymous complaint
• Supervisor reviews complaint and writes the
  business a letter to inform and educate
• Wait to see if business makes a change
• At any point during this process, the employee
  has a right to legal action

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Workplace Pumping Comparison of Federal
and MN Laws

• Federal law provides minimum, uniform protection
  for all states. Fact Sheet 73 says
• The FLSA requirement of break time for nursing
  mothers to express breast milk does not preempt
  State laws that provide greater protections to
  employees (for example, providing compensated
  break time, providing break time for exempt
  employees, or providing break time beyond 1 year
  after the childs birth). 

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Workplace Pumping Comparison of Federal
and MN Laws

• Which is stronger Federal or Minnesota?
• Both apply to any employer with one or more
  employees
• Federal law allows for employees with fewer than
  50 employees to argue break time requirement
  causes undue hardship MN law allows for any
  employer to argue break time unduly disrupts
  operations
• Federal law restricts right to break to
  non-exempt employees MN law has no restriction
  on employees entitled to a break

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Workplace Pumping Comparison of Federal and
MN Laws

• Which is stronger Federal or Minnesota? (cont.)
• Federal law states child up to one year MN law
  says infant child
• Federal law is more liberal in amount of time and
  frequency MN law states must run concurrently
  with any break time already provided
• Federal law requires a space that is not a
  bathroom, shielded from view and free from
  intrusion MN law requires the employer to make
  reasonable effort to provide a space other than
  a toilet stall. Further, that the space be in
  close proximity to the work area and the space
  be private.

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Workplace Pumping Advocacy and Education
Changing the Environment

• Counsel BF workers
• Work with and contact employers for solutions
• Continue to lobby for Breastfeeding Promotion Act
• Document process

• Work with local Coalition
• HRSA Business Case Toolkit trainees/materials
• Contact state office of DOL
• Read fact sheets and FAQ

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Workplace Pumping Advocacy and Education
Changing the Environment

• What direction do you see the Coalition going?
• Identify and honor businesses
• Gather personal stories successes and
  challenges humanize this experience
• Use existing tools and/or develop new tools
• Make or maintain valuable connections
• Identify our personal area of interest
• Other suggestions, ideas, brainstorms to CHANGE
  THE ENVIRONMENT?

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Melissa Crawford Kestner Crawford Kestner,
P.A 651-209-7575 www.crawfordkestner.com