FLSA Requirements to Accommodate New Mothers

Are you doing enough to accommodate your new mothers?

California law requires employers to reasonably accommodate employees who want to express breast milk at work. The general definition of expressing breast milk is to pump or otherwise remove breast milk from one’s body.

Which employers are required to provide this accommodation?

Federally, all employers covered by the FLSA must conform. You may be exempt from the law if you employ fewer than 50 people and can show that compliance with the regulation would create an undue hardship.

In California, however, the Fair Employment and Housing Act (FEHA) protects from discrimination, harassment and retaliation on the basis of “sex,” which specifically includes “breastfeeding and medical conditions related to breastfeeding.” Therefore lactation is protected by FEHA’s laws against pregnancy discrimination.

Employees may request a reasonable accommodation of their need to express milk, the burden is on the employers to evaluate the request.

What are you required to do?

• Provide a reasonable amount of break time for employees to express breast milk
• Nonexempt (hourly) employees can be required to use the paid, break time you already provide. If the employee needs additional time beyond the normal paid rest break for expressing milk, the time must be provided, but it may be unpaid.
• Exempt employees may take reasonable breaks to express milk as part of their regular workday.
• If they choose to, employees may use their lunch break, but you are still required to provide reasonable break time if necessary.
• Provide the use of a private place (other than a toilet stall) that’s in close proximity to the employee’s work area for the employee to use to express breast milk. The employee’s normal work area can (i.e. private office)be used if it allows the employee to express milk in private.

What can happen if you don’t comply?

The Labor Commissioner may issue a citation to employers that violate this law, subjecting them to a civil penalty of $100 for each violation.

How Private is Private?

Employers must make reasonable efforts to provide a room, other than a toilet stall, in close proximity to the employee’s work space.

It can be an employee’s office or a separate room. To ensure privacy, a locking door with an appropriate sign, such as “Private. Please Do Not Enter Without Prior Authorization,” will ensure only those who have a legitimate need to be in the space can enter.

Because transgender employees are also protected, do not use gender-specific terms to address privacy

Best Practices for New Mothers

• Provide reasonable accommodation to employees who request it for lactation purposes.
• Ensure your workplace has an appropriate place to express breast milk if an employee requests accommodation.
• Do not discriminate on the basis of gender when evaluating a request for lactation accommodation.
• Update policies to ensure compliance with applicable laws.
• Never deny a request for the need to express breast milk/lactation without first consulting legal counsel. There are gray areas of compliance that should be explored.

Lauren Sims is the author and a principal HR Consultant with eqHR Solutions. Whenever you require Human Resources or Payroll advice, or help navigating the ever-changing landscape of California and Federal Employment Laws & Regulations, call us for a no obligation consultation.

eqHR Solutions is a leading human resources and payroll consulting firm, providing tactical and strategic human resources employment support and ADP payroll product training. Services are provided for all size businesses in Southern California and the San Francisco / Bay area.

Why You Need an Up-to-Date Employee Handbook

Many employers are intimidated by the task of creating and maintaining an Employee Handbook. A well-written employee handbook is an important document and necessary for all businesses, from 2 employees to 20,000.

What is the purpose of your Employee Handbook?

• Introduce employees to the mission, history and values of the organization;
• Provide guidance on personnel matters, such as leaves of absences and time off policies;
• Sets performance and conduct expectations;
• Communicates company policies on harassment and discrimination in the workplace.

Employers must follow their employee handbooks consistently. A handbook is a legal document that can protect employers, from liability in some instances.

What Should Your Handbook Include?

While not comprehensive, here is a list of important things to include in your Handbook:

• At- Will statement- provide a clear statement that all employment is at-will and the Handbook does not make any promise of continued employment;
• Employment Classification- define full-time, part-time, temporary, interns. seasonal or any other employment classifications your company has. Also, clearly define what a non-exempt and exempt employee is and what your pay practices are for each;
• Hours- state the normal working hours for employees and what your company’s payroll week and pay dates are;
• Benefits- provide general information the rules relating to benefits, including vacation pay, sick pay, and unpaid leave. For health benefits, other insurance benefits, and retirement benefits, refer employees to the official plan documents that explain the rules.;
• Drug and alcohol abuse- generally state your policy prohibiting employees from using drugs or alcohol in the workplace. If you require drug testing, state the conditions under which this will be conducted. Also, include information regarding accommodating employees to deal with substance abuse through counseling or employee assistance programs;
• Harassment and Bullying- clearly state that sexual and other types of harassment are illegal and violate your policies. Let them know that you will not tolerate unwelcome sexual comments or conduct and that you will treat any complaints of harassment seriously. Specify how and to whom an employee can complain of harassment, what procedures you will follow to investigate complaints, and what actions will be taken against harassers. Also, clearly state that employees who report harassment in the workplace will not be retaliated against;
• Attendance- emphasize the importance of good attendance and showing up on time. Explain that numerous unexplained absences or repeated tardiness can be a basis for disciplinary action or even termination;
• Employee safety- state that employee safety is a major concern of your business and that employees are expected to follow safety rules and report any potentially dangerous conditions;
• Smoking- state that smoking is prohibited on all company premises;
• Complaints- describe what procedures should be followed to make and resolve complaints;
• Electronic communications- include your company policies on use of email, the Internet, social networking sites, blogs, and so on;
• Leave policies- list all leave of absence policies both required by federal and state law (such as FMLA and Time off to Attend School Activities) and offered by the employer (such as Bereavement Leave).

What Not to Include in your handbook

The language in employee handbooks may create binding obligations on employers. You should make sure that you can enforce and abide by everything you include in your Handbook consistently and fairly. Here are some other things to leave out:

• Specific reimbursement policies and other housekeeping items- if the policy doesn’t apply to all employees, or if you feel you may need to revise it more often than your Handbook, don’t include the policy;
• Promises of continued employment-For example, don’t put language in your handbook that promises employees a job if they follow your rules. A court might interpret this as a contract of employment that prevents you from firing employees without good cause;
• Rigid progressive discipline policies- while you may follow some form of progressive discipline for performance problems or misconduct you want to make sure to keep your options open. Don't obligate yourself to follow the same disciplinary pattern for every employee in every circumstance.

Update Your Handbook

Review handbooks at least once a year, and possibly even more frequently if new laws become effective midyear. Involve managers and supervisors in the handbook review process. They can best report on whether policies have become moot, are ignored or are simply no longer relevant to the business needs.

Notify Employees of Changes

Make sure employees receive proper notice of the changes. The best way to do this is to distribute the new Handbooks along with a memo summarizing any changes in the Handbook from the prior version. Make sure to have all employees sign an acknowledgment stating that they received the new Handbook and the revisions. If an employee refuses to sign, inform the individual in writing that the policies still will apply to apply to him or her, and retain a copy of that notice.

If you have several changes or a large change that affects many employees, it is a good idea to meet with all managers face-to-face to review policies and ensure the policies are understood and are followed consistently.

Lauren Sims is the author and a principal HR Consultant with eqHR Solutions. Whenever you require Human Resources or Payroll advice, or help navigating the ever-changing landscape of California and Federal Employment Laws & Regulations, call us for a no obligation consultation.

eqHR Solutions is a leading human resources and payroll consulting firm, providing tactical and strategic human resources employment support and ADP payroll product training. Services are provided for all size businesses in Southern California and the San Francisco / Bay area.