Compliance or Complaints? The Impact of Private Enforceability of Lactation Break Time and Space Laws

Abstract

The Break Time for Nursing Mothers requirement has been federal law for over a decade, requiring employers to provide reasonable break time and private space to employees for expressing breast milk. However, non-compliance remains a problem, driven in large part by the lack of enforcement incentive to become educated about and follow the law. Legislation to remedy the enforcement gap in existing law is pending. This report examines an important question policymakers consider when assessing attempts to reform the law: whether and to what extent adding a private enforcement mechanism to a lactation break time and space law impacts litigation rates.

We conducted an in-depth review of lawsuits filed against employers in the four jurisdictions with privately enforceable break time and space laws to examine the likelihood that employers will be sued. Our research identified only 6 lawsuits filed against employers in the jurisdictions over the combined 47 years that the laws have been in effect. All of the lawsuits were brought by employees alleging actual economic damages, typically job loss. Given the small number of cases, the annual likelihood a private company will be sued under an enforceable lactation break time and space law is essentially zero (0.0002%).

WorkLife Law’s data show that allowing employees to enforce lactation break time and space laws in court does not lead to a meaningful increase in litigation.

Keywords: breastfeeding, work, pumping, litigation, legislation, policy, lactation