Nursing Mothers Get Break(s) Under New Federal Law
Among the least-publicized changes in the recently enacted health care reform bill (Patient Protection and Affordable Care Act, or Act) is an amendment to the Fair Labor Standards Act (FLSA) that will significantly impact the workplace. The new law requires employers subject to the FLSA to provide rest breaks so nursing mothers can express milk. The amendment requires that a break be provided “each time such employee has the need to express the milk” for one year after the child’s birth. It also mandates that the employer provide a place other than a bathroom, shielded from view, and free from intrusion from co-workers or the public where the milk can be expressed.
Departing from DOL regulations, which provide that rest periods of a short duration should be paid as hours worked, the new Act specifically states that these breaks can be unpaid. The Act applies to all employees covered by the FLSA, but those with less than 50 employees are exempt if the requirements “would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, or structure of the employer’s business.” Given the application of similar language in other employment-related legislation, the burden will be placed on the employer and will not easily be satisfied.
The Act raises several practical concerns and questions. For example, the frequency of the need to express milk as well as the length of time needed to do it will vary. It also could be open to abuse and could impact productivity. Providing a suitable place also could be problematic for some businesses. The DOL is expected to issue regulations that might address some of these issues.
It is unclear when this Act will become effective and what the penalty will be for a violation. However, especially in light of the fact that some states already provide protections for nursing mothers, and may even require the breaks to be paid, employers should change their policies to reflect this obligation and train managers accordingly.
Proposed EEOC Rule Would Expose Employers to ADEA Liability for Actions That Have a Disparate Impact on Older Workers
A proposed new EEOC regulation seeking to define “reasonable factors other than age” (RFOA) under the Age Discrimination in Employment Act (ADEA) threatens to make it much more difficult for employers to defend successfully against claims that their decisions, policies, or procedures had an illegal, disparate impact against age-protected workers. The proposed regulation currently is subject to a 60-day comment period that ends this month and might become effective soon thereafter.
In recent years the United States Supreme Court confirmed that the ADEA, like Title VII, prohibits employer practices and procedures that have a disparate impact on persons in the protected class, even if there were no intent to discriminate. The Court acknowledged, however, that the scope of such disparate impact liability was narrower under ADEA than under Title VII, and it provided employers with the RFOA defense. Under this defense, an employer will not have liability for a decision, policy, or procedure that has a disparate impact on the employees older than 40 years if that decision, policy, or procedure was based on any reasonable factor other than age.
The EEOC’s proposed rule seeks to expand on this in a way that only a law professor might love. In short, the proposed regulation seeks to impose on employers the duty to reasonably avoid discrimination, and it shifts the focus from the reasonableness of the factor (other than age) relied on by the employer to the reasonableness of the employer’s decision-making in adopting that factor. It essentially would require employers not only to rely on an RFOA, but also to show that the employer analyzed and selected an RFOA that would minimize the disparate impact on the older workers. In other words, employers would have to undertake studies and analyses to determine what is the least impactful RFOA that could be used to implement the business’s objectives.
An example cited by the EEOC demonstrates the practical effect of this proposed rule. It references a typical reduction-in-force among sales people. The neutral criterion cited by the employer for its selections of employees to release is the individual’s salary level because the employer seeks to meet its payroll reduction goals by laying off the fewest number of people. This criterion would typically be an RFOA because it represents a reasonable business objective. However, the EEOC says that this approach might have a disparate impact on older workers who may have obtained higher salary levels. Under these circumstances, the EEOC could determine that the employer’s selection criterion violates the ADEA because it results in a disparate impact. The EEOC’s proposed rule would require the employer to do more. For example, the EEOC states that “the employer could mitigate the harm by also considering the sales revenues that the affected individuals generated.”
This one simple example demonstrates that the EEOC’s proposed rule would require employers to do much more than simply select and rely on an RFOA if they hope to avoid liability for a decision, policy, or procedure shown to have a disparate impact. The EEOC and plaintiffs’ lawyers suing on ADEA claims will be able to second-guess decisions over and over, looking for an RFOA with less impact on workers 40 years or older that theoretically could have been used by the employer. This is a very real concern for employers because it is more and more common as a statistical matter with an ever-aging workforce to have a policy that has a disparate impact on workers 40 years and older.
Keep current with your weekly Foley ELUs to stay on top of these and other developments at the EEOC. We will report if and when this proposed rule becomes effective, and will offer further guidance on how employers can comply in cost-effective ways.
Legal News is part of our ongoing commitment to providing legal insight to our clients and colleagues. If you have any questions about or would like to discuss these topics further, please contact your Foley attorney or any of the following individuals:
John F. Birmingham, Jr.
Bernard J. Bobber