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Do You Have a Legal Right to Express Breastmilk at Work? What Nursing Mothers Need to Know

April 28, 2016 Pregnancy Discrimination

Hourly and salaried employees may have different legal protections

You’ve just started back to work after having a baby. The morning was a mad dash to pack up everything your infant needs and then drop him or her off at daycare. Now you’re sitting at your desk for the first time in months and there’s a lot to catch up on. On top of all of that, you’re sleep deprived.

To complicate matters further, you’re still breastfeeding your child. That means that you’ll need to express breastmilk while you’re at work.

What happens now? Where do you go? What if your boss gives you a hard time?

While, obviously, this isn’t a scenario I have experienced myself, I’ve seen these struggles firsthand. My wife recently started back to work after having our fourth child (yes, you heard that right – four) and our baby is still nursing. Just as she did with our first three children, my wife is taking time during the workday to express breastmilk.

Luckily, her employer has been very supportive about it.

However, not everyone is that lucky. I’ve personally handled many cases regarding pregnancy and pregnancy-related conditions and I can tell you that some women face significant roadblocks.

The good news is that there is specific legal protection for some nursing mothers who need to express breastmilk during the workday.

The bad news is that this protection doesn’t directly apply to all workers. That means those employees who are not specifically covered may have to rely on other laws if they are barred from expressing breastmilk on the job.

Let’s take a look at what the law says about nursing mothers’ rights.

What Hourly Employees Need to Know

The Fair Labor Standards Act (FLSA) was amended in 2010 to provide break time for some nursing mothers to express breast milk while at work.

However, the law only pertains to non-exempt employees who work for employers that must comply with the FLSA (which is most companies). Generally, non-exempt employees are hourly workers who are eligible to receive overtime. That also includes part-time employees who are non-exempt, even if they have never received overtime.

While the law “encourages” employers to allow all nursing mothers to take breaks to express breastmilk when needed, it does not specifically cover exempt employees. That means many salaried employees may not qualify for this legal protection. (We’ll discuss their potential legal protections in a moment.)

Some states may also have laws that protect nursing mothers, although Pennsylvania and New Jersey do not at this time.

What’s in the Law

The FLSA requires that employers:

  • Provide reasonable break time for nursing mothers to express breast milk for a nursing child one year after the child’s birth.
  • Allow the mother to take breaks to express breast milk every time she needs to do so.
  • Provide a private location for a woman to express breastmilk. This location cannot be a restroom. It must be shielded from view, and free from intrusion from other workers or the public.
  • Ensure that the location is available every time the woman needs to use it, if the location is not specifically designated for that purpose.

Nursing breaks do not need to be compensated. However, if an employee uses a break that would normally be compensated for the purpose of expressing breast milk, then she must be compensated for that break.

Salaried Employees Have Rights Too

So what about salaried employees? Are they out of luck? Not entirely.

The Pregnancy Discrimination Act (PDA) prohibits discrimination against a woman based on current or past pregnancy, childbirth, or related medical conditions.  Since lactation is a condition related to a past pregnancy, women who have been discriminated against because of breastfeeding may be able to make a claim under the PDA.

The PDA also states that women who are lactating must be given the same freedom to address their needs as would any other employee who is experiencing a non-incapacitating medical condition.

Pennsylvania, New Jersey, and the City of Philadelphia also have laws in place prohibiting pregnancy discrimination.

Call Us for a Free Consultation

Murphy Law Group is dedicated to protecting the rights of working mothers. We have deep experience fighting against pregnancy discrimination in the workplace. If you feel that you’ve been subjected to unlawful treatment because of pregnancy or a pregnancy-related condition, contact us to discuss your situation.

Email us at, or call (267) 273-1054 for a free consultation.