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Who is covered by the law?

The "Break Time for Nursing Mothers" law applies to nonexempt employees covered by the Fair Labor Standards Act (FLSA).

The FLSA establishes minimum wage, overtime pay, recordkeeping, and child labor standards affecting full-time and part-time workers in the private sector and in federal, state, and local governments. The FLSA contains some exemptions from these basic standards. Some apply to specific types of businesses; others apply to specific kinds of work. Employers with fewer than 50 employees are not subject to the FLSA break time requirement if compliance with the provision would impose an under hardship.

If you are covered by the FLSA and eligible for overtime pay, you may have the right to break time and a private space to express milk for your baby while you are at work. Even if you are not covered by the federal law, you may be covered by a state law.

For help determining whether you are covered, call the Wage and Hour Division at 1-866-487-9243, try the Fair Labor Standards Act Advisor, or use the information below:

"Break Time for Nursing Mothers" law: Is your work covered by the FLSA?

The "Break Time for Nursing Mothers" law only covers employees who are covered by the FLSA. In order to be covered by the FLSA, your job must qualify under either "enterprise coverage" or "individual coverage," as explained below.

Enterprise Coverage (this means the law applies to the business):
Employees who work for certain businesses or organizations (or "enterprises") are covered by the FLSA. These enterprises, which must have at least two employees, are:

  1. businesses that have an annual dollar volume from sales or business done of at least $500,000. You can look for this information online or by contacting your company's Human Resources department; or
  2. hospitals, businesses providing medical or nursing care for residents, schools and preschools, and government agencies

Individual Coverage (this means the law applies to the individual person):
Even when there is no enterprise coverage, employees are protected by the FLSA if their work regularly involves them in commerce between states ("interstate commerce"). The FLSA covers individual workers who are "engaged in commerce or in the production of goods for commerce."

You are involved in interstate commerce if you:

  • help produce goods that will be sent out of state
  • regularly make out of state phone calls
  • handle records of interstate transactions
  • travel to other states for your work
  • do janitorial work in buildings where goods are made for shipment outside the state

"Break Time for Nursing Mothers" law: Are you a nonexempt employee?

The "Break Time for Nursing Mothers" law is included in section 7 of the FLSA, which deals with overtime pay requirements. Only employees who are not exempt from section 7 are entitled to breaks to express milk under the FLSA.

If your employer is required to pay you overtime (one and a half times your usual pay rate) when you work more than 40 hours per week, then you are considered a nonexempt employee. Even if you only work part-time or have never actually received overtime pay, you may still be considered a nonexempt employee.

While employers are not required under the FLSA to provide breaks to nursing mothers who are exempt from overtime pay requirements of section 7, they may be obligated to provide such breaks under state laws.

If you are not covered by the federal "Break Time for Nursing Mothers" law, or if your work is covered under the FLSA but you are exempt from overtime, visit the U.S. Department of Labor Women's Bureau online map of employment protections for women who are pregnant or nursing for a state-by-state listing or contact your state breastfeeding coalition to find out if you are covered by a state law. For information on other state breastfeeding laws, see the directory from the National Conference of State Legislatures.

**Continue to Next Section: What if your state already has a law?**

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